The U.S. Department of Justice recently convened a series of workshops to review “competition in licensing in public performance rights.” For a government agency considering seismic changes to music licensing laws, it was well-intentioned and an appropriate exercise. Regrettably, however, the conversation lacked the critical perspective of numerous voices, including the music streaming services and consumer advocates.
The discussion throughout the workshop, much like the larger ongoing conversation around music publishing reforms, repeatedly returned to calls for “modernizing” the Justice Department’s consent decrees that protect licensees and consumers from the anti-competitive effects of the two largest performing rights organizations (PROs) — ASCAP and BMI. The requests for “modernization” were virtually all premised on the need to address the innovations in music distribution made possible by digital music companies. Modernization is an important goal when outdated systems truly no longer work; as an industry we recognized that was the case in mechanical licensing and came together to pass the Music Modernization Act.
But let’s be very clear that the PRO consent decrees are not hindering the music industry or in need of modernization because they happen to have originated in the 1940s. The decrees aren’t unnecessary and outdated because they have been in place for decades. They have existed for decades precisely because of their ongoing value in ensuring fair and competitive access to music works. And they aren’t obsolete because of innovations in music distribution — improvements made possible because the consent decrees recognize that differences in distribution tech don’t equate to differences in licensing needs.