Classical Music Composers and Performing Rights Societies

Here's a very interesting article by an American law student with some musical background - whose name happens to be Amanda Scales. It suggests that copyright laws are actually hurting the cause of serious or "classical" composers - mainly through the excessive term of protection and an American problem having to do with the "Fairness in Music Licensing Act".

While the article is focused on American law, there are some aspects that ring true here - namely her discussion of the "follow the dollar" approach that North American societies have used since the early 1990's - which eliminates any "subsidies" or "tribute" as she calls it to classical or serious composers - who by definition don't get much air play or performances in bars, etc. She doesn't use that term - "follow the dollar" - which was used in the SOCAN milieu - but see page 285 of her article.

She suggests on the last page of her article that classical composers should form their own performing rights collective - something I have talked about for years. Naturally, there are big economic barriers to such an endeavor - but a good case could be made for government funding to get one at least up and running in Canada and to provide some ongoing support. The Department of Canadian Heritage has subsidized a number of its clients and collectives lately that don't need any subsidy.

Here's the link again... it's an excellent article from a law student and highly worthwhile by any standard...

HK

ADDENDUM:

There's a very good critque of Ms. Scales' paper by one M. Gladu by way of two "comments" - click below. It merits a full response, which follows:

Dear Mr/Ms Gladu:

You are quite right - the paper is far from perfect and somewhat lacking in evidence and rigour. However, it is an excellent paper by undergraduate law student standards and your very articulate and expert critique confirms that it does a great job raising issues and topics. I’ve seen many writings about collectives that are ultimately much less accurate and informative by people who are very experienced.

A few points in response to your comments:

1. You ask “Are concert/live music licenses fairly valued?” Well, that was certainly a very major issue in the 1994 Canadian Copyright Board decision in which SPACQ (a Quebec based association representing the interests of composers, etc.) argued forcefully that SOCAN was greatly undervaluing the concert tariff in the rate it sought from the Copyright Board. The Board agreed in principle - and although it couldn’t change the rate for the period in question, it clearly concluded that

The rate will therefore be set at 2.2 per cent for the whole period. The Board hopes, however, that SOCAN will give due consideration to filing its proposed concert tariff for 1995 at a rate higher than that in the SOCAN/CAMP agreement. The Board is of the view that unless this course is followed, the interests of SOCAN's members will not be properly served.

(emphasis added)

This spat between SPACQ and SOCAN is still a sore point for SOCAN and likely to remain so for a long time.

2. You say that “...some sources appearing in her bibliography are just not well-versed and specialized on reporting/critiquing the activities and inner workings of the administration and collection of performance royalties. Miss Scales should have gone direct to the source...” Well, I’ve enjoyed a long and at times quite warm rapport with the major PROs in North America. They are always very courteous but rarely very transparent - although I have to say that SOCAN is probably more transparent overall and accessible on the whole than any other major collective in Canada - but that’s not saying much.

3. Even members have a hard time understanding how the distribution rules work in PROs. The chronic and persistent complaint by serious music composers is that their royalties have been going down since the merger of the two Canadian societies in 1990 and the “follow the dollar” movement of the early 90's even if their performances are doing well. The concert and broadcast rates in Europe and Japan are said to be MUCH higher abroad in many cases than Canada - so they often get bigger income from foreign than domestic sources - even though they are performed more here in Canada. SOCAN won’t hear any discussion of a “cultural fund” - which helps serious composers in Europe. The SOCAN Foundation is better than nothing - but barely so in terms of the overall problem.

4. At least in the USA, there is a choice of three PROs. In Canada, there is now only one. Many now regret the 1990 merger - though they are afraid to say so in public. The dirty little secret is that some Canadians have joined with one of the American collectives. They somehow have found this to be advantageous.

5. I agree that her analysis of the effect of term extension may be somewhat unconvincing, but the fact remains that the increase to life + 70 cannot possibly help serious composers. It may help their publishers and sometimes lazy and occastionally difficult grandchildren and great grandchildren in some rare cases. An example of "difficult" might welll be Stephen Joyce. The 1998 CTEA (“Sonny Bono”) term extension legalisation put a 20 year moratorium on works entering the PD in the USA. There is every basis to fear that this trend to extension and moratorium will continue - especially given Mexico’s recent inexplicable move to life + 100 and the effect that may have on NAFTA. So, it may be a very long time before anybody can do an arrangement of or themes and variations on early 20th century masterpieces - such as those by Straus (d. 1949) or Stravinsky (d. 1971). Ironically, Stravinsky is often quoted as saying “ Lesser artists borrow, great artists steal” - and that is clearly true of his own work, as he was quick to admit. But when he “stole”, he also infinitely enhanced. Ms. Scales has a point here - even if she doesn’t quite hit the bull’s eye in terms of methodology or evidence. If term extension gets in the way of the work of the next Stravinsky, Ives, Dvorak or others who blatantly borrow, that will be very said. If serious music publishers actually seriously “invested” in younger unestablished composers and actively promoted their work, there might be some faint argument for term extension. But this isn’t the case any more, if it ever was the case in recent times.

Anyway, thanks for your comments. You seem very knowledgeable indeed. Call me anytime and we’ll chat.

HK