It’s been five years since the historic Orrin G. Hatch-Bob Goodlatte Music Modernization Act (MMA) was signed into law, marking the most meaningful music licensing reform in decades. On June 27, the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held a hearing in Nashville, “Five Years Later – The Music Modernization Act,” to examine its impact. The focus of the hearing was on the system created under the MMA to administer blanket mechanical licenses and collect and distribute mechanical licensing royalties, and whether the law is working as intended.
Below is a joint letter from BMI and ASCAP that was submitted for inclusion in the hearing record.
July 14, 2023
Chairman Issa, Ranking Member Johnson, and distinguished Members of the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet,
Thank you for holding the recent hearing to assess the Music Modernization Act (“MMA”) five years after its enactment. We appreciate the opportunity to submit joint comments for the record on this very important matter.
Many of you were in Congress and helped pass the MMA and know how critical this legislation was, and still is, for our industry. For the songwriters, composers, and publishers that ASCAP and BMI represent, specific changes the MMA included relating to the process by which rate court judges are selected for our respective rate court trials, as well as the evidence that can be submitted in those trials, were important steps in our fight to provide fair compensation for songwriters and composers.
And yes, that fight is still ongoing.
Between each of our respective Consent Decrees with the Department of Justice, as well as the compulsory mechanical license, songwriters, composers and publishers are the most heavily regulated segment of the music industry.
That is one of many reasons we continue to seek ways to improve the effectiveness and efficiency of the music licensing marketplace. An effective and efficient marketplace helps ensure our songwriters, composers, and publishers receive the royalties they have earned. It is in their interest, and therefore ours, that the marketplace functions as well as possible.
For decades, ASCAP and BMI have maintained public online databases of the millions of copyrighted works in our respective repertories. In spite of the fact that ASCAP and BMI had already invested a significant amount of money, time, and resources to develop and operate our own respective repertory databases, we still responded to calls from music users for more easily accessible data. To that end, we have collaboratively engaged with many different types of music users in substantive discussions about what types of data would be most helpful for them as they make their music licensing decisions.
The result of those discussions was the 2020 launch of a new, free, and publicly available public performance rights data reconciliation engine known as SONGVIEW. Simply put, SONGVIEW provides easily searchable, transparent, and authoritative performing rights data on songwriters, composers, music publishers, and copyright ownership shares for nearly 28 million works, amounting to over 90% of U.S. music. It is now widely utilized by the industry as a standard authoritative resource. ASCAP and BMI continue to operate SONGVIEW jointly today and are proud that our collaboration has resulted in the best and most comprehensive public performance data available in the marketplace.
Indeed, the U.S. government itself recognized and commended ASCAP and BMI on the “important strides” made in advancing market transparency via our substantial effort in developing SONGVIEW.
Certain lobbying organizations in Washington, D.C. have sought to tie us to other performance rights licensing entities, including new entrants that have gained very little – if any – traction in the industry, that provide less transparent data when negotiating licenses. No doubt, those efforts are part of a goal to encourage additional regulations on PROs, reduce licensing fees to our songwriter members and affiliates, and make it more difficult for us to license their works.
We strongly reject those comparisons not only because of the quality and availability of our data, which is clearly the gold standard in the industry, but also because we believe that this is an issue to be discussed between other performing rights licensing entities and their potential licensees in the course of standard negotiations – not an issue warranting industry-wide regulation. Furthermore, we note that even after meeting the additional call for data, the arguments from those same lobbying organizations remain the same, adding to the questions about their actual intent.
Similarly, those very same lobbying organizations continue to argue, inaccurately, that music users are paying more than 100% of the value for the musical works they perform. We remain baffled by this complaint. The blanket licenses offered by our organizations and other PROs convey all the rights we control to perform music in our repertories – no more and no less. If music users do not want to get licenses from all existing PROs, they have that choice.
They could even choose to only license performance rights from one PRO or obtain rights directly from the copyright owners. Regardless, the burden rightly falls on them to ensure their licenses convey all necessary rights to the music they have chosen to perform. The creation of SONGVIEW means music users can confidently ensure an ASCAP and/or BMI blanket license conveys all necessary rights to perform music that is 100% controlled by ASCAP or BMI, or both. The 100% complaint leveled by these lobbying organizations is particularly ironic, and frankly, somewhat galling given that long-standing governmental regulation of ASCAP and BMI means that music users are paying too little to perform music, not too much.
ASCAP and BMI are dedicated to ensuring that the music licensing marketplace is efficient and transparent. We are committed to maintaining current and accurate data to ensure proper distribution to our members and affiliates, and for music users generally. We are proud of our legacy of data transparency through our repertory databases and of SONGVIEW’s rapid success.
We are confident that our systems, as enhanced by SONGVIEW, will continue to adapt to meet the needs of the music licensing marketplace.
We thank you once again for holding this important hearing, and for doing so in Nashville – in many ways, the heart and soul of our industry. ASCAP and BMI look forward to continuing to work with the members of this distinguished subcommittee to ensure that songwriters and composers are compensated fairly for the important works they create, the soundtracks of our lives.
President and CEO, BMI