Congressional Republicans, miffed that their Democratic counterparts got to screw up an entire industry — health care — with the least possible GOP input, are now looking for an industry they can screw up themselves. The lucky recipients of this attention? The nation’s songwriters:
Last week, Senate Republicans introduced their version of the Songwriter Equity Act, with much ado, at Nashville’s famous Bluebird Cafe. Some well-known Nashville songwriters were there to promote the legislation. So were music-publishing and royalty-collection companies. Everyone used carefully poll-tested phrases like “level the playing field,” “road to fairness,” “fair market value,” and “unsung heroes.”
And what will this act actually do?
The proposal in Congress would do two things, primarily, both aimed at increasing the amount that accrues to songwriters (and thus music publishers and [performing rights organizations] like ASCAP and BMI). The first would be to expand the criteria the rate court judge could consider when determining the fair performance royalty rates, notably adding the performance rates paid to musicians and record labels (though SoundExchange).
The second thing would be to urge the three-judge Copyright Royalty Board to scrap the 9.1 cent mechanical royalty in favor of rates that “most clearly represent” the fair market value. The CRB currently is asked to determine rates based on what “would have been negotiated in the marketplace between a willing buyer and a willing seller.” The new language would add that the CRB should also take into account “marketplace, economic, and use information presented by the participants,” as well as the royalty rates paid out for “comparable uses and comparable circumstances under voluntary license agreements,” like film and television.
The CRB already has an essentially impossible task: that theoretical “willing seller” does not actually exist. Once a songwriter has permitted one use of her song, the compulsory license kicks in: anyone who pays the mechanical royalty, the 9.1 cents (up to five minutes), gets to use that song. Throwing in “marketplace information” will almost certainly mean a variable scale based on existing sales, meaning that the new kid starting out will get less, while the old pro collects more. (Why, yes, it does sound like the [cough] Affordable Care Act, except in one regard: it’s possible to read the whole thing.)
Still, there are some things that can’t be permitted to stand:
And yet Pandora is hardly rolling around in a roomful of gold. (Incidentally, that’s the wrong Twitter ID for Pandora.) Let’s hope these GOP guys and The Industry can come up with something that works — but if I’m writing songs, I’m not putting a down payment on anything until I see something tangible coming in.