JF : Yes , and that ’ s where you get this thing called “ the race to the bottom ,” or that ’ s the theory anyway . And not only that , but it ’ s going to cost [ PROs ] quite a bit of money to set up the systems to be able to figure out who those other writers are because you don ’ t have them . So you don ’ t have the database on them , you don ’ t have the information so now it ’ s going to cost a lot of money to set up a new system that already works in somebody else ’ s system but they don ’ t have the rights to license their own song . It ’ s a costly venture .
[ Editor ’ s Note : The head of the DoJ ’ s Antitrust Division , Renata Hesse , has since responded to the “ rate shopping ” criticism , saying , “ In the unlikely event that a user obtains a license from only one PRO , that PRO would have reason to increase the rate for the license to account for the full share of all the songs it licenses rather than according to the shares on which the license fee is normally calculated .”]
CM : Songwriters and publishers have warned that 100 per cent licensing could inhibit songwriting collaborations . How so ?
JF : Yes , whether it ’ s the IMPF , which is the Independent Music Publishers Forum , or the ICMP that represents international publishers , which includes key publishers from around the world . For the CMPA and a host of other publishing organizations and individual publishing companies , there is a concern there will be a drop in non-affiliated PRO co-writes . I don ’ t know who pays more or less and I am not saying one is paying more than the other , but for example , if ASCAP is paying more , an ASCAP writer will only want to write with another ASCAP writer because they know they are going to get their money , it ’ s going to be a higher rate , and it ’ s not going to be put in a limbo .
If a songwriter is signed to SESAC , ASCAP then has to go get permission from SESAC to actually be able to license that product . I just read an article that said only 10 per cent of songs are non-ASCAP or BMI , but that ’ s somewhere around a million songs that are not part of that automatic decree . Taking off weekends and five days for Christmas , that ’ s 3,500 songs a day to be processed . So you can imagine how long
that process could take before you get paid . Your money could be put into limbo for a very long time .
CM : Until now , did ASCAP and BMI have the same or similar rates ?
JF : Very similar rates . They may be different on certain things but a lot of their rates are regulated through the government systems , the copyright board , but typically they ’ re the same . One may pay a little bit better than the other for college radio versus other kinds of things , for example , but in the end it kind of evens out in the wash .
CM : Is this DoJ decision final or can it be appealed ?
JF : There is an appeals process and whether there is hope or not , I ’ m not sure . The decision is not yet final . I think there is at least a month before it becomes solidified . What they are saying , and all the things I ’ m reading , the speculation is that it likely will be [ final ] but we can ’ t say definitively that it is . If it is the final decision , the PROs have been given one year in which to put this into place and figure it out . We ’ ll see if they can do it and we ’ ll see what the process is and what the conflicts look like . It ’ s going to dramatically change the way that music is licensed , no question .
[ Editor ’ s Note : The DoJ has since finalized its decision . ASCAP and BMI have announced plans to fight it through lobbying and litigation .]
CMPA PRESIDENT JODIE FERNEYHOUGH
CM : Is there anything you would like to add about how this could affect Canadian songwriters and publishers ?
JF : Yes . I mean obviously initially from everything we ’ ve just said , it could be kind of scary . We could see months of litigation , people not getting paid , people being paid the wrong amounts , or not being paid until months or years later . So , that ’ s the really big scary part that could even affect us as Canadians . But on the other end of the spectrum , maybe it ’ s a really good opportunity for organizations like CMRRA and SOCAN where they could pick up the slack of what ’ s going on . That you could sign direct with SOCAN or you could have CMRRA be doing business , the backend business if you will , because they do have everybody in their database . So , again , I am speculating but there might be opportunities in this thing . It could be a marketplace opportunity . It ’ s kind of shitty for songwriters and it ’ s kind of shitty for ASCAP and BMI ; but SESAC , GMR , SOCAN , those organizations might actually benefit from it .
Michael Raine is the Assistant Editor of Canadian Musician
WWW . CANADIANMUSICIAN . COM CANADIAN MUSICIAN • 11