[cc-community] exclusive rights?
Paul Keller
paul at waag.org
Thu May 3 17:41:13 EDT 2007
On May 3, 2007, at 11:13 PM, Burobjorn wrote:
> Which of the USA music rights collection societies is using exclusive
> rights and which one isn't? I thought ASCAP is collecting without the
> need for exclusive rights from the artist?
both ASCAP and BMI cannot take an exclusive assignment of rights from
authors. this is the consequence of litigation brought the US
Government against both societies in the 1940s and 1950s. (the
following is an excerpt of a unpublished research paper on the issue):
> ... the history of the establishment and development of music
> performing rights organizations in the United States does nothing
> to detract from the country’s reputation as a highly litigious
> society.
>
> Litigation involving ASCAP and BMI can be divided into two
> categories. On the one hand, there has been ongoing litigation
> brought the US Government. Within two decades after the
> establishment of the first music performing rights society (the
> American Society of Composers, Authors and Publishers or “ASCAP”),
> the US Government commenced suit against both ASCAP and the rival
> society — Broadcast Music, Inc. (“BMI”) — alleging anticompetitive
> conduct. These actions resulted in consent decrees that have been
> repeatedly amended over time, including in recent years.
>
> The other stand of litigation has been pursued by private parties,
> alleging relevantly that ASCAP and BMI’s blanket licenses amounted
> to anticompetitive conduct.
>
> The requirement that ASCAP and BMI enter into only a non-exclusive
> license with their members and also permit their members to
> directly license public performance rights to users has been an
> early and consistent feature of the membership arrangements of
> ASCAP and BMI. This requirement appeared, at the latest, as
> regards ASCAP in its 1950 consent decree, and, as regards BMI, at
> the latest, in its 1966 consent decree. It has been a constant
> feature of the subsequent amended decrees. Based on statements
> made by the Government in subsequent antitrust filings involving
> ASCAP and BMI it appears that the Government views non-exclusivity
> as providing an important check on ASCAP and BMI by promoting the
> ability for alternative licensing sources.
>
> The non-exclusivity requirement has also been a source of ongoing
> debate and analysis in the private party litigations brought
> against ASCAP and BMI alleging that their practices are
> anticompetitive. The courts have consistently held that the
> availability of direct licensing by members represents a
> competitive check on ASCAP and BMI and a realistic alternative for
> licensees to pursue, in the event they find ASCAP and BMI’s rates
> and practices unpalatable.
best,
paul
--
waag society | nieuwmarkt 4 | NL - 1012 CR amsterdam
e: paul at waag.org | t: +31 20 557 9898 | f: +31 20 557 9880
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