Re: Mandatory licensing (was: Re: LPFM)

["Roger Kirk" <rogerkirk@usa.net>]

Garrett Wollman wrote:
>The rights which they license are fictitious.  
>The rights of copyright holders are conjured 
>out of whole cloth by the government, and the
>government has set statutory limits to those 
>rights (implemented by the Copyright Office, 
>part of the Library of Congress) in circumstances 
>where they conflict with the public good.  In this
>specific instance, there is a mandatory licensing 
>scheme for several kinds of copyrighted material, 
>including music (for use in jukeboxes and by 
>non-commercial broadcasters).

My understanding is that ASCAP, BMI & SESAC do not
license the right to copy, rather the right to 
perform (publicly).  This right is licensed to provide 
the composer with income beyond that which they 
would derive from the sale of recorded performances 
of their works and sheet music.  The logic behind
this licensing scheme is that a band performing
music other than their own compositions is deriving 
benefit (money) from the use of the compostion (song).  
If the composer hadn't written it, a band could not 
perform it.  Thus the composer is entitled to a share 
of the compensation.  Long after the bulk of the sales 
of a recording of a popular song have been made, bands 
throughout the world may continue to use the song to 
entertain the public.  Why shouldn't the composer share 
financially in the successes of those who directly use 
his/her composition(s) as a means of acheiving success.

This is the reason behind charging stores fees for
playing music for their customers.  Even if it's a
radio station (who already pays ASCAP, BMI, SESAC, 
et al) - customers are not free to change the station 
or turn the volume up/down while shopping, therefore 
the store is deliberately making "performances" to 
additional audience - hopefully improving the shopping
experience and thereby receiving benefit.  

When providing music for employees I believe the courts 
have ruled that if the employee controls the volume, 
then no fee needs be paid,  but if the employer controls 
the volume, then fees must be paid.

I know that there is plenty of argument against the
heavy-handed tactics that ASCAP, et al have used e.g.
arbitrary fees, etc.  And I do not dispute them, but 
the theory that composers deserve to be rewarded for 
the work they've done remains valid in my book.  

N.B. ASCAP cannot force you to license through them.  
In theory it is permissible to obtain the performance 
rights from the individual holders thereof.

Roger Kirk
rogerkirk@ttlc.net