Recently David Israelite, CEO of the National Music Publishers Association and speaker at last year’s JETLaw symposium, promoted the use of blanket licensing for digital music services.  He argued that the current system of granting permission and collecting royalties for the use of musical compositions is broken.  Israelite proposed that the SIRA Act of 2006 be revisited.  SIRA would have reformed the section of the Copyright Act that governs the licensing of the reproduction and distribution rights in nondramatic musical works.  It addressed blanket licensing, designated agents, and royalty rates in connection with the digital delivery of music.  Advocates of blanket licensing cite the ability to rapidly and easily clear rights, which combats unauthorized distribution.  Some embrace collective licensing as the system that best protects independent writers, who benefit from the collective bargaining power of rights organizations such as ASCAP, BMI, and SESAC.  However, SIRA was not without its flaws; for example, it did not fully address conflict regarding arguably duplicative royalty payments for the delivery of music via mechanisms that have characteristics of both a distribution and a performance of the composition.  Moreover, some wonder about the willingness of companies to pay for the licenses; will they rely on the safe harbor of the DMCA takedown provisions instead?  Some vehemently oppose a legislative, collective-rights solution.  Arguably, publishers are best positioned to determine which avenues for licensing will fulfill each writer’s individual goals.  Alternative solutions might include the delivery of a global repertoire database of rights ownership information for musical works.  Similarly, standardized licensing terms and forms would reduce transaction costs (some–unfortunately–argue for “[M]ore business, fewer lawyers….“).  Some suggest that blanket licensing could be implemented without legislation; for example, existing Performance Rights Organizations could provide blanket licenses pursuant to contractual agreements with their individual members.  Such a situation is unlikely if other publishers follow in the footsteps of EMI, which recently announced that, instead of ASCAP, EMI will administer the digital licensing of one of its largest catalogs.  The debate potentially implicates all rights-holders in the music industry.  Would the system that Israelite proposes realize creative business models and prosperity for publishers and composers?  Will blanket and collective licensing expand to cover the sound recording copyright, as well?

Kelly Donley

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