Q&A About the Department of Justice’s Proposal on 100% Licensing
July 11, 2016
Why is the DOJ reviewing the ASCAP consent decree?
In 2014, at the urging of ASCAP and BMI, the Department of Justice (DOJ) announced that it would open a review of the ASCAP and BMI consent decrees—the outdated regulations that govern the operations of the nation’s two largest PROs. The consent decrees were originally written in 1941 and haven’t been updated since the invention of the iPod.
What kind of consent decree reforms did songwriters propose?
ASCAP welcomed this review, advocating for reforms to the consent decrees that would improve the ability of songwriters to get fair market value for the use of their work and preserve the value of collective licensing that enables PROs to serve its songwriter members. To that end, ASCAP advocated for the consent decrees to 1) allow for partial withdrawal for publishers; 2) allow the PROs to bundle multiple rights together for licensing; and 3) provide opportunities to expedite the rate setting process between PROs and licensees.
What has the DOJ proposed?
After a formal review process that’s taken more than two years, the DOJ recently informed songwriters that at this time it will not consider our requests to modernize and update the consent decrees.
Instead, the DOJ has proposed new requirements that would force ASCAP and BMI to license all songs in their respective repertoires on a 100% basis, ending the long-standing industry practice of fractional share licensing. This is regardless of the percentage actually owned by ASCAP’s writer and publisher members and BMI’s affiliates.
We are deeply disappointed by the DOJ’s proposal – especially given that thousands of ASCAP members wrote to the DOJ expressing serious concerns about 100% licensing and how it would impact songwriters' livelihoods and creative freedom. In addition to ASCAP’s letter to the DOJ making the argument against 100% licensing, the US Copyright Office and numerous members of Congress voiced their opposition as well.
Where does ASCAP stand on the DOJ’s 100% licensing, or “full work” licensing, proposal?
We believe the DOJ’s proposed 100% licensing requirement could be incredibly disruptive to the music marketplace, creating confusion, chaos and instability, potentially harming songwriters, increasing costs, complicating payments and stifling innovation and creative collaboration.
What are the next steps in this process, and what is ASCAP doing in response?
The DOJ is expected to announce their final decisions publicly by the end of July, but this is not the final outcome of this process.
ASCAP is still carefully considering all of our options, including potential legislative and legal remedies. We are also working closely with the entire songwriting and publishing community to work toward the best path forward.
It’s important to emphasize that we’ve also planned ahead for the possibility that such an ill-advised proposal could be enforced. Under the leadership of our new management team and with the support of our writer-publisher Board, ASCAP has made strategic investments in modernizing our operations and our systems in ways that will enable us to continue to lead and deliver results for our members, no matter what the future looks like.
How does this affect my relationship with ASCAP?
We want to reassure you that this in no way changes your ASCAP membership or ASCAP's commitment to protect, support and advocate for you and the value of your musical compositions. We know that you may have questions and concerns and we hope to have more answers and clarity to share in the coming weeks as we work through this process with the DOJ.
As the only member-owned and run performing rights organization in the US, we are deeply committed to ensuring the health of our community – our songwriter, composer and publisher members. You are the heart and soul of ASCAP and the very foundation of the music industry. As ASCAP has always done, we will keep fighting to preserve your rights.
How can I get involved and help ASCAP in this matter?
Thousands of our members have been involved by submitting public comments to the DOJ in support of our requested consent decree modifications, signing a petition to the DOJ opposing 100% licensing, advocating with ASCAP on Capitol Hill, writing your members of Congress about copyright reform, writing OpEds in the press and speaking out on our issues. That work will not stop. We will be reaching out to you to get involved in specific actions in the months to come and we hope you will stand with songwriters and stand with ASCAP.
To stay informed, please sign up to receive our important member advocacy newsletters.
For more information on ASCAP and the DOJ proposal visit standwithsongwriters.org.