If you’ve read anything about copyright review in the last year, you’re likely familiar with the terms “willing buyer/willing seller,” “fair market value,” “free market” and “trained fleas.” Okay, maybe not that last one, but the first three are terms that seem to be getting nods of approval from most parties when it comes to potential changes in the copyright law. The fourth term is, unfortunately, something that maybe we’ve become. Let me explain…
The Songwriter Equity Act of 2014, introduced by Representative Doug Collins (R-GA), proposes rates for publishers and songwriters to be set at more of a fair market valuation, and actually includes the term willing buyer/willing seller. At the three Copyright Office roundtables this summer it was difficult to find anyone who could justify a position of not agreeing with incorporating these terms into the copyright space.
So the question is, “Do we need to incorporate these terms more into the copyright law and licensing system for musical compositions?” Many have taken the position that the compulsory licenses, as defined under Section 115 of the Copyright Law, which has set rates for 105 years through separate Copyright Judges, needs to be eliminated in order to let the free market take over. We’ve heard the argument that the current statutory rate of 9.1 cents, which started at 2 cents in 1909, would have been over 50 cents today had it been able to increase through a free market environment, and not “controlled by a government.”
So instituting more “willing buyer/willing seller” and “fair market value” negotiation sounds fair and good for writers and publishers, right? (I personally believe the open market system will work.)
However, I’m quite shocked to hear that many writers and publishers are hesitant to embrace this proposed change because they fear that, if the statutory rate is abolished, it would also eliminate the protection owners now have with a minimum rate. You see, the stat rate of 9.1 cents is defined as a “minimum statutory rate.” Although most owners have reluctantly agreed to reductions in this minimum rate for various reasons over the years, almost never do we charge more than the minimum rate for our songs. In fact, I’ll say never. There. I said it. Even though the 9.1 cents is indeed a minimum, and only defined as a rate for “compulsory licenses,” we don’t negotiate above that, even though we absolutely have the freedom and ability to do just that. (Now, for those of you who may argue that, let me remind you that the law says a compulsory license is not available for a first use/exclusive license, or for a song on a product after it has already been released. Those licenses are available only through a negotiated “willing buyer/willing seller” or “fair market value” license. Yet, we don’t practice that.)
We have become, so to speak, “trained fleas,” the fourth term from above. If you put fleas in a glass jar with no lid, they will jump out. If you put a lid on it, they will bang against the top of the lid for a while, then adjust their jumping to jump only as high as the lid. You can then take the lid off, and the fleas will continue to jump only as high as the lid was, and never higher than the jar. They will never escape because they have been reprogrammed to only jump so high, even though there are no limits. Have we conditioned ourselves to only negotiate so high?
I’ve heard some song owners express their fear that, without the perceived protection of a stat rate, our rates could go down. Well…news flash!….they could! That’s the whole idea of “willing buyer/willing seller” and “fair market.” But at that point, the owners control the rights. We don’t HAVE to license it at a rate we don’t like. That kind of puts the owners back into the position that Rep. Darrell Issa (R-CA) explained at a recent hearing, stating that a copyright grants the owner the “right to exclude.”
Do we have an appetite for a free market that might present an opportunity to have a song recorded, but only if the rate is 5 cents? (Take it or leave it.) In order to have an opportunity to increase a mechanical rate to 12 or even 15 cents, are we ready and willing to start saying “no” to a requested rate of 5 cents, and potentially losing a cut? I guess the question is, “how much do we really value the songs under our control”? Do we feel like they are being artificially propped up with a stat rate of 9.1 cents, or do we believe they are indeed worth more? Maybe not all the way to the over 50 cents that studies show us they would have been worth, but….maybe they are. A free market would determine that.
Many people in the U.S. seem to be in favor of policies that sound good, like health care for all, or putting troops on the ground for a good cause. But when we actually see our own insurance rates increase, or body bags start arriving back home, we realize we didn’t really have the appetite for the thing that sounded like such a good idea as a distant theory.
Well, it’s that time for us songwriters and publishers to decide. Do we have the appetite for this? Do we really (no, I mean really) believe our copyrights are worth more than we are getting paid? Are we ready to risk a little? No…are we ready to risk a lot? Are we ready to take that step…without a net? I’m in. Are you?
John Barker is President & CEO of ClearBox Rights, LLC, an independent rights managements company based in Nashville, TN. He is also Chairman of the Copyright Society of the South. John publishes a blog related to songwriting, publishing and copyright issues which can be found at http://clearboxrights.wordpress.com or www.clearboxrights.com.