Jul 14 2009

It’s Now or Never! Billboard Op-ED By ASCAP’s John LoFrumento


It’s Now or Never!

As our nation embraces digital communications, we have reached a ‘now or never’ moment. Our society cannot allow businesses to take a dismissive view of copyright protections in the digital space when the rights of those who create books, music, movies and other kinds of art are at stake.

The risk is particularly acute for music creators, who by law are entitled to compensation for public performances of their work. ASCAP, which represents 360,000 U.S. music creators and publishers, is clarifying the online value of music with multiple filings in Federal Rate Court, where an impartial determination can achieve a fair resolution.

Downloads and ringtones are among the matters ASCAP has brought to Rate Court, with the firm belief that these transmissions of music – whether in a sound recording or audiovisual work – clearly meet the definition of public performance:

“ …to transmit or otherwise communicate a performance to the public by means of any device or process…in the same place or in separate places and at the same time or at different times…”

This performance right often occurs in addition to a “mechanical right,” which arises when a musical work is copied. There is nothing unfair or unusual about multiple rights existing in one work.

Under the Copyright Act there isn’t a compulsory mechanical license associated with the reproduction of music embodied in audiovisual works. So ASCAP is fighting vigorously to protect the performance right that occurs when audiovisual programs are downloaded. There isn’t a meaningful distinction between downloading and streaming, since both protocols enable a transmission to the public, the basis for the performance right.

Recently critics have implied that ASCAP may hold consumers responsible for the public performance of a ringtone, falsely suggesting that it would be like charging them for playing a car radio with the window open. But the comparison makes no sense; Radio broadcasters have been paying license fees for music performances since the early 20th century without a direct impact on consumers.

Wireless carriers and content providers – not consumers – are responsible for obtaining music performance licenses. Music generates billions of dollars for them – easily enough to cover a reasonable payment to ASCAP members and provide an ample profit without increasing fees to consumers. In fact, ASCAP has been licensing carriers since 2001 without impact on prices to wireless customers.

The bottom line? When digital companies use the performance of music to build their businesses, they have to pay for it, just as terrestrial broadcast, satellite and cable companies have for decades.

Digital businesses, many now well-established, must find innovative, profitable ways to serve consumers. However, in doing so, they should develop win-win models that also respect the rights of content creators. In pursuing these solutions, they will find in ASCAP a fair-minded, reasonable and collaborative partner.