CO Opposes Possible '100 Percent Licensing' Requirements in Updated ASCAP, BMI Consent Decrees

The Copyright Office says it opposes any adjustment of Department of Justice existing consent decrees with the performing rights organizations (PROs) American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music Inc. (BMI) that would allow any partial owner of a song to fully license that song, a departure from the music industry’s current fractionalized licensing framework. Justice is considering including “100 percent licensing requirements” in revised ASCAP and BMI consent decrees as part of its review of the existing decrees. ASCAP, BMI and major music publishers jointly requested the review in a bid to partially withdraw digital rights from compulsory licenses. A Justice “interpretation of the consent decrees that would require these PROs to engage in 100-percent licensing presents a host of legal and policy concerns,” the CO said in a report posted online Thursday. Congress “made clear” in its 1976 revision of the Copyright Act “its intent that copyright interests could be divided and separately owned,” the CO said. “The decrees must be interpreted to respect this fundamental principle, and indeed, as implemented, have accommodated the industry practice of fractional licensing for many decades.” The CO said it’s also “aware of no authority by which the antitrust consent decrees governing ASCAP and BMI could operate to supplant Congress’ constitutional prerogative to establish the nation’s copyright law, or to override exclusive rights granted under that law or by foreign law.” Forcing ASCAP and BMI to implement 100 percent licensing requirements “could also severely undermine the efficacy of ASCAP and BMI, which today are able to grant blanket licenses covering the vast majority of performances of musical works -- a practice that is considered highly efficient by copyright owners and users alike,” the CO said. Imposition of a 100 percent licensing rule might also violate foreign-based song owners’ rights, since U.S. “rules on joint authorship differ from those of many other countries that require the consent of all co-owners for any license, not only an exclusive license,” the CO said. House IP Subcommittee Vice Chairman Doug Collins, R-Ga., requested the CO report in January so the office could provide its “views regarding the licensing of jointly-owned works by the PROs, and, specifically, what issues lawmakers and regulators should consider to avoid further eroding the property interests of musical composition owners.”