Department of Justice Inquiry on Licensing of “Split Works” by ASCAP and BMI
Department of Justice has opened the issue of the licensing of “split works” by ASCAP and BMI up to comment by industry stakeholders including songwriters and composers, publishers, licensees, and service providers, to provide the Division with information or comments to several specific questions.
DoJ’s recent notice notes that in several contexts, ASCAP and BMI suggest that each organization provides licenses for all works in their repertories, whether partially or fully owned. Each organization suggests this in their licensing terms/agreements, they did so in their comments to the initial DoJ inquiry, and their Consent Decrees seem to require the same. Notwithstanding this however, DoJ is aware of the historical practice of ASCAP and BMI making and accepting payments based on the fractional interest each copyright owner holds in works, and that ASCAP and BMI pay only their own members, and do not pay members of any other performing rights organizations.
DoJ’s Antitrust Division posited the following 6 questions:
· Have the licenses ASCAP and BMI historically sold to users provided the right to play all the works in each organization’s respective repertory (whether wholly or partially owned)?
· If the blanket licenses have not provided users the right to play the works in the repertories, what have the licenses provided?
· Have there been instances in which a user who entered a license with only one PRO, intending to publicly perform only that PRO’s works, was subject to a copyright infringement action by another PRO or rightsholder?
· Assuming the Consent Decrees currently require ASCAP and BMI to offer full-work licenses, should the Consent Decrees be modified to permit or require ASCAP and BMI to offer licenses that require users to obtain licenses from all joint owners of a work?
· If ASCAP and BMI were to offer licenses that do not entitle users to play partially owned works, how (if at all) would the public interest be served by modifying the Consent Decrees to permit ASCAP and BMI to accept partial grants of rights from music publishers under which the PROs can license a publisher’s rights to some users but not to others?
· What, if any, rationale is there for ASCAP and BMI to engage in joint price setting if their licenses do not provide immediate access to all of the works in their repertories?
Comments are to be submitted by November 20, 2015