A recent guest post by Craig Havighurst on Billboard.biz offered six suggestions for not screwing up copyright reform. While some of the suggestions were on point, it included an idea that is perhaps the best way to screw up copyright reform – ongoing or even increased government intervention in dictating to songwriters how much they should be paid for their creations. While ease of licensing is important, it is a secondary concern to the primary goal of NMPA which represents thousands of creators – fair pay for songwriters.
Yes, the music licensing world is complex and much of it is outdated, but adding more government overreach and less free market fairness to the industry would be devastating. Compulsory licenses from the World War I era and consent decrees from the World War II era still control much of how songwriters and publishers are paid. These arcane laws and regulations, which Congress and the Department of Justice are now thankfully reviewing, continue to discount the compensation for creators who are the bedrock of the entire music industry. With the dawn of the digital age, it is more difficult than ever to make a living as a songwriter as Pandora tries to pay songwriters even less than they already do, which as Mr. Havighurst correctly notes, is approximately 1/14th of what they pay record labels and artists each time a song is streamed. While the post uses cover songs as an example of why compulsory licenses should be expanded, it ignores the fact that today's songwriters are already incentivized to allow covers since they profit from them.
While some of Mr. Havighurst’s points were dead on, such as the gross payment imbalance and need for parity between songwriters and performers, the biggest problem with the arguments throughout his piece is that he not only advocates for furthering the forces (i.e. compulsory licenses) that prevent songwriters from getting fair market value for their work, but that his reasoning is founded on the ease of negotiation. Just think, it would likely be much more expedient for the government to artificially price every house, car, or phone at a hand-picked rate. There would be no need for creative commerce, and everyone would know exactly what everything cost. Government price controls are efficient, certainly, but they also kill entire industries. In this country, we allow for demand to set prices – except when it comes to songs. This precious and vital industry continues to go on with the government picking winners and losers, and too often songwriters are the latter when it comes to compensation.
To see just how well a willing seller-buyer standard could work when it comes to performance and other types of rights, look no further than the one area Mr. Havighurst hopes to rework and redefine completely. The ‘sync’ licenses that are freely negotiated today prove how well the free market can work for artists and consumers. While his piece says we should get rid of the entire category, it is actually the category with the most free market success. Naturally, a song played in a movie or television show can completely alter the work of art – creating a mood or making a point that is priceless. To advocate putting these licenses on par with radio airplay is not logical or fair for the songwriters whose art gives texture, meaning and mood to motion pictures. Additionally, songwriters deserve the creative license to choose when and in what context their work is used, just as directors have creative license to decide what message they want to depict in their movies. An artist who does not agree with a film’s material should not be forced to contribute to it, which is why sync licensing has always existed in a free market, which is appropriately free from creative coercion.
Finally, Mr. Havighurst argues for a master list of all recorded works which licensees can access anytime. In theory, this sounds helpful, but who would pay? He argues for this to be government-run, meaning your tax dollars, but what would be more appropriate is the licensees themselves footing the bill, since they primarily benefit.
As tempting as it is to streamline every transaction in the music business by setting price controls, extending compulsory licenses and consent decrees in order to outlaw free market principles altogether, this would fundamentally devalue intellectual property rights and reduce incentives for songwriters to create the work that fuels the industry. Now is the time for creative solutions that bring more choice and growth to the business, not less. As music access models progress, we must not fall back on old laws and regulations that have hampered our industry for decades.
David Israelite is the President and CEO of the National Music Publishers’ Association (NMPA). Founded in 1917, NMPA is the trade association representing American music publishers and their songwriting partners.
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