US performing rights organisations Ascap and BMI have filed their responses to the US Copyright Office’s recent notice of inquiry concerning the PROs sector.
Announced in February, the inquiry is exploring whether the recent increase in the number of PROs in the US in recent years – when Ascap, BMI and Sesac have been joined by Global Music Rights, AllTrack and Pro Music – may be “undermining licensing efficiencies”.
To outsiders this may seem like a fairly dry subject. To insiders, however, it’s something of a nest of hornets being energetically kicked.
You can read Ascap’s response here and BMI’s here. There are some common strands to the two filings, as you might expect from two of the longest-established PROs in the US.
Both emphasise the fundamental importance these organisations play for songwriters, composers and music publishers; both suggest that the system is already heavily regulated and that additional regulation risks increasing the costs and burden for members; and both see bad faith in some of the ‘music users’ – licensors of music – whose concerns have sparked the inquiry.
“The hypocrisy of the music user advocates cannot go unmentioned. When it suits their goals, music users (and affiliated industry groups) purport to champion competition,” is how BMI put this in its filing.
“For example, in BMI and ASCAP rate court proceedings litigated pursuant to the consent decrees, licensees have frequently lamented the alleged ongoing lack of competition in the market.”
“These licensees have cited the purported entrenched and unrestrained market power ASCAP and BMI allegedly possess through their aggregation of a significant number of copyrights to argue for decreased license fees and more favorable terms.”
However, it suggests that the music users sometimes “take the opposite position, decrying the emergence of new PROs and the resulting burdens placed on them”.
“In other words, music users and other industry organizations that have long claimed that the existing comprehensive regulation of PROs such as BMI and ASCAP preserves competition now champion further regulation designed to stifle the very competition they claim to prize.”
That’s the real needle here: between the PROs and the companies licensing music. For example, Ascap’s filing claims that “the complaints levied by some music users about the lack of transparency of PRO song ownership are particularly disingenuous”.
Why? “Today, ASCAP and the other leading PROs have invested significant resources to make detailed repertory information freely available and easily searchable online – and yet little evidence suggests these licensees ever use that information,” it adds.
“Recently, some music users have questioned whether PROs are paying the wrong songwriters and composers, especially when it comes to live performances. Meanwhile, these businesses actively resist paying songwriters and composers fairly at all.”
Ascap and BMI are also both at pains to argue that they invest heavily in their systems; work to make them as efficient as possible; and are also working on transparency – for example making their repertoires available online, and working together on the Songview project.
There are some jabs at the new breed of PROs, particularly AllTrack and Pro Music, over a comparative lack of transparency about what repertoire they represent. BMI even accuses them of having “introduced informational opacity to the licensing marketplace”.
However, despite this, both Ascap and BMI are arguing that further regulation or legislation covering PROs is unnecessary.
“The concerns underlying the Notice call not for further legislative or regulatory action but simply for the enforcement of the same laws that already protect copyright owners and music users alike,” is BMI’s conclusion.
“ASCAP and BMI are already the most regulated entities in the U.S. entertainment industry,” is how Ascap sees the bigger picture. “Legislative action or regulatory action with respect to these issues is unnecessary and would ultimately disserve music creators.”
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