By Rep. Doug Collins (R-Ga.) \ for www.thehill.com
The way we experience music and share it with our friends is changing in ways that are more exciting, more dynamic and more disruptive than we could have previously imagined.
Incredibly, this growth has happened despite the government's regulatory grip on music creators, distributors and listeners.
All the innovation that’s occurred in the music marketplace over the past few years is a drop in the bucket compared to what we might have seen if the government hadn’t inserted itself between those who make the music, and those who love to listen to it.
Business models that make money off of using a product - in this context, a song - will always seek to pay less for that product. And those who create the product will always seek to be compensated fairly for the use of their product. This natural tension isn’t unique to the music licensing debate. But it is deserving of Congress’ attention because while in most industries this tension is dealt with by negotiating a fair price between the two parties, for the music industry, a massive amount of laws and regulations-- put in place before my kids were born-- prevent this essential dynamic from occurring.
Unfortunately the music industry as a whole seems to be more interested in protecting their fiefdoms than retiring outdated laws and battling it out on a level playing field where Congress is the umpire instead of the league commissioner. For an industry that is ever-evolving and exciting, it’s equally caught up with tired old legislative language and policy positions that do little to speak to the digital age in which we live. Laws become outdated when they are written to appease competing sides of an singular issue, rather than to flexibly create parameters that ensure creation is incentivized but the negotiation is left up to the parties involved, in accordance with Article I, Section 8 of the Constitution.
We live in a technological age that I don’t believe our Founders could have envisioned. Their defining document has survived our ever-changing times because it was written with such flexibility. Today, Congress should take note, and as it hears from all interested parties in the music industry, it should seek to write laws that not only promote creation, but remain relevant even in times of rapid technological change.
The main struggle today is largely due to the fact that the laws and regulations that govern music licensing cannot keep up with the innovations in music access. From compact discs, to digital downloads to online streaming, the industry is in a tailspin about how to compensate songwriters and artists amidst the web of outdated polices that govern a marketplace that didn't exist a decade ago.
There are some, however, that actually benefit from this lack of clarity. The arguments of those in the music industry that support the complex web of regulations and extensive government involvement, in what should be business decisions, are thinly veiled attempts to distract the conversation away from the fact that they profit from the status quo. Case in point - the debate over the Department of Justice's review of decades-old consent decrees that govern music licensing have been skewed by the large corporate interests who benefit by keeping them in place. These consent decrees are regulatory frameworks that govern ASCAP and BMI, organizations that represent millions of songs and collect royalties for songwriters when their songs are played. The Department of Justice established these consent decrees back in the 1940s and according to the structure, ASCAP and BMI cannot refuse to license the songs they represent to music outlets that request them, even if a price has not been agreed to.
These, mostly tech companies, who have become incredibly valuable, are so because archaic laws prevent them from having to pay songwriters a fair-market rate. They go as far as to work towards preventing a free-market altogether. However, as Congress considers their arguments, they would be wise to keep in mind that profit margins are not a policy argument. To be fair, neither are the stock options that a certain streaming service’s CEO received.
Although technology has developed far beyond what our Founders could have imagined, their genius remains as true today as it was when they crafted the Copyright clause in Article I, which lays out the rights of creators to use their own creations as they wish. Music distribution services have gone to great lengths to portray their access to the creative work of a songwriter or artist as a moral imperative, and paint those who believe in the right of creators to negotiate for their work in a free market, as anti-innovation and anti-consumer. The reality is, our country was founded on property rights - and these companies continue to try to profit by degrading the rights of creators.
Ironically, the people who above all others want to see music access models expand and thrive, are the creators themselves. It is the fact that they are continually under financial assault by these corporate interests that will ultimately hurt the consumer, most. When there is no incentive to create, there is less creation.
Unfortunately in this instance, in order to reduce government's heavy hand on the music industry, none other than the government must act. It's time to remove the barriers for songwriters to get what they are owed for their work. While we cannot put a price on what music contributes to our culture and our daily lives, that does not mean songwriters don't deserve to be paid.
Collins has represented Georgia's 9th Congressional District since 2013. He sits on the Foreign Affairs; the Judiciary; and the Oversight and Government Reform committees.