tag:blogger.com,1999:blog-12505562.post2839665056044836897..comments2024-03-15T11:42:21.265-04:00Comments on The Patry Copyright Blog: Guest Blog: Josh Wattles and Compulsory LicensingWilliam Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.comBlogger8125tag:blogger.com,1999:blog-12505562.post-72442967302373005952008-06-17T16:27:00.000-04:002008-06-17T16:27:00.000-04:00Gary:The frequency of these rate setting activitie...Gary:<BR/><BR/>The frequency of these rate setting activities is a cause for concern as you point out very well. In emerging markets compulsories are a recipe for disaster. In some circumstances one might be better off with exemptions at very low levels of commercial activity leaving the bigger players to make deals.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-41187379837849693312008-06-17T14:57:00.000-04:002008-06-17T14:57:00.000-04:00Are new compulsory licenses permitted under Berne'...Are new compulsory licenses permitted under Berne's three steps?<BR/><BR/><BR/>"Members shall confine limitations and exceptions to exclusive rights to [1]certain special cases [2]which do not conflict with a normal exploitation of the work and [3]do not unreasonably prejudice the legitimate interests of the rights holder."<BR/><BR/>Josh's post leads me to agree with him that compulsory licenses are a bad idea, with the caveats that such licenses make sense where there are countervailing considerations such as a need for reduced transaction costs, a wariness about price discrimination based upon undesirable criteria, or a reasonable basis for public subsidy, such as public broadcasting.Ampersandhttps://www.blogger.com/profile/14473706537762979474noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-50234744509765293532008-06-16T21:51:00.000-04:002008-06-16T21:51:00.000-04:00Josh,I've participated in a fair number of rate ar...Josh,<BR/><BR/>I've participated in a fair number of rate arbitration proceedings (CRB and CARP) and am left to question at the end of the day whether all parties wouldn't be better off with a single mediator or arbitrator who's job was to provide a recommendation to a joint House/Senate committee that would then codify rates in legislation. The process of re-litigating rates every 2 years (as it used to be) or even every 5 years (as it is now under the Copyright Royalty and Distribution Reform Act of 2004), does not necessarily result in more fair or accurate rate decisions; it mostly results in outside counsel making lots of money. And not all interested parties even choose to participate. For example, Pandora is an active lobbyist now trying to change the webcaster rates but Pandora wasn't involved in the most recent proceeding (possibly because they launched after the commencement of the proceeding). If the law is designed to balance the needs of copyright owners/creators/performers, on the one hand, and distribution services, on the other hand, with an ultimate goal of ensuring access to content for the American public, then maybe Congress shouldn't be not delegating these decisions. Consider whether recommendations should be made to a Congressional committee or joint committee, every 10 years, and then let the people's representatives make these decisions. The fact that the next webcaster proceeding is scheduled to commence on January 1, 2009, with a decision due by December 15 (+/-), 2010, for rates to go into effect January 1, 2011, will strike most people as silly. There is likely a better way to make these determinations.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-11256855948233713222008-06-13T17:19:00.000-04:002008-06-13T17:19:00.000-04:00Thanks for your comments Scott. It has been some ...Thanks for your comments Scott. It has been some time since I worked at ASCAP but let me correct a couple of points. First, there is no double dip when, as you say, "an ASCAP-licensed band play[s] in an ASCAP-licensed venue" because the band isn't issued and doesn't directly pay for a performance license. The perfomance license from ASCAP is issued to the venue and it covers the performing activities of the band while at the venue as well. <BR/>Secondly, both ASCAP and BMI must treat their affiliates and members on a non-discriminatory basis and the DOJ already monitors their activities in this respect. It is true that some members get better advances than others and there are many differences in the way different types of works are credited for different types of performances in different types of media under the distribution formulae. But the fromula itself, other than the advances,is applied uniformly. If you don't like the formula, many would probably agree with you. But the application of the formula is what it is.<BR/><BR/>With respect to the notion of paying the Beatles more because their work has more "value" consider that the flip side is a judgment that my son's electronic music isn't as good for some reason. The Beatles pick up more dollars on volume of use so a judgment of relative worth on the basis of the content of the work is unecessary.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-58119676239197541602008-06-13T16:39:00.000-04:002008-06-13T16:39:00.000-04:00The underlying assumption of compulory licensing i...The underlying assumption of compulory licensing is that the real life pricing structure in most fields of copyright licensing is far less varied thatn they could be, which is a result of having a small number of dominant players in most copyright markets who compete with each other and produce a high volume of product.<BR/><BR/>At the retail level, comparable sized product units (one movie ticket, one CD) are pricely almost entirely by how fresh they are and otherwise have a near uniform price. Competition between artists and between corporate media distributors is largely by volume. The same is true even in non-big player dominanted industries (like paintings) below the high points of the market.<BR/><BR/>As long as compulsory licensing is the tail being wagged by the dog, free riding on the larger market price determination for a whole class of medium, like a CD or Blu Ray Disk or major movie, of iTune song, shouldn't be nearly as difficult as it theoretically can be. <BR/><BR/>It is the sort of decision that half a dozen people with experience negotiating deals in any given area, acting in good faith, could make with little difficulty and a high degree of consensus.<BR/><BR/>The exception, online radio, proves the rule. It is hard to price set for because there isn't an established business model or price structure, largely because the big players aren't comfortable that they understand the market. Members of Congress probably had it right when they looked to satellite radio for guidance as the next closest analogy.<BR/><BR/>In the same vein, while contingent legal fees, Realtor commissions, and oil and gas royalties all could, in theory, vary dramatically, in fact, they hover very close to widely accepted market norms.Andrew Oh-Willekehttps://www.blogger.com/profile/02537151821869153861noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-4404297969270456982008-06-13T15:31:00.000-04:002008-06-13T15:31:00.000-04:00The discussion is all very interesting. Of course...The discussion is all very interesting. Of course, despite the ad-hoc way in which compulsory licenses are set up, they <I>do</I> have a positive social utility. A work available under compulsory license has higher public utility than one which is not: the transaction costs are much lower (no need to negoatiate a purchase), and the fees under a compulsory license scheme are (in particular, for valuable works) lower than the monopoly rents a content producer might be able to charge otherwise. Many bar bands' livelihood depends on having access to the BMI and ASCAP catalogs, even if the collection practices of these agencies are frequently predatory, and often result in double-dipping (an ASCAP-licensed band playing in an ASCAP-licensed venue, for instance).<BR/><BR/>One question to consider when trying to design a "fair" scheme: Should a uniform (or at least maximum) rate apply to all works in a given class, or should price differentiation be permitted (a scheme where a song by the Beatles costs more to play or cover than a song by a band which is unknown, unpopular, or critically reviled)? One one hand, the Beatles' track is, by many measures, more valuable than the other; on the other hand, valuable works can still achieve greater reward under a fixed-rate scheme due to greater numbers of purchases of the work. <BR/><BR/>Also--since Joshua mentions performance rights organizations--a common complaint against PROs is that it they are prejudicial to the interest of some of their associates--mainly less well-known songwriters--and favor the interests of established songwriters with large catalogs. BMI, in particular, has been taken to task for its promotional activities and its payment structure (which rewards bonuses to songwriters with large utilization). Securities law might be a model that any future regulation of PROs and similar societies might seek to emulate--a broker is not supposed to prejudice the interests of his smaller clients to benefit the larger ones. While many financial houses have been caught doing so, the fact remains that this is generally illegal, and many have been punished in various ways. While I'm oversimplifying the state of securities law vastly--perhaps similar legal standards are needed for PROs. After all, the SEC has been dealing with crooks in the financial markets for years, and has an immense body of experience in dealing with the sorts of shenanigans that unethical traders and dealers have been known to pull.EngineerScottyhttps://www.blogger.com/profile/11005863528905991434noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-7691079343977238222008-06-13T11:48:00.000-04:002008-06-13T11:48:00.000-04:00Thanks so much for your post and comments Josh. Th...Thanks so much for your post and comments Josh. The blog is absolutely a collaborative effort; it exists in order for people to share their thoughts and ideas, so that we may all learn. My late mother, aleha ha-shalom, instilled in me the religious obligation of learning every day for the sake of learning, and we all learn best from each other.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-7306445248173885762008-06-13T11:35:00.000-04:002008-06-13T11:35:00.000-04:00Thanks Bill for your extraordinary generosity to c...Thanks Bill for your extraordinary generosity to copyright geeks everywhere in writing this blog every day and thanks for your special generosity in sharing your platform with me. The views in this piece are just mine, no agenda for any client, and are really part of an excursion to find repair for a compulsory licensing system here in the United States that has become frustrating to many. Since more of these are coming an open, abstract dialogue, maybe here and hosted by Bill, could add to a design of a better mousetrap.Anonymousnoreply@blogger.com