Wednesday, July 19, 2006

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



5 comments:

  1. Miss Scales raises a good issue in her paper but, her conclusions, statements and research appear to be faulty and/or lacking to this reader. I believe she found a very good topic, but she twisted it in a weird way and consequently arrived at doubtful conclusions. Are concert/live music licenses fairly valued? or are the PRO’s distribution methodologies fair? such premises would have lead to more interesting results and findings. This is an old debate/issue that tends to be brushed off whenever brought up but let’s be clear, even popular artists have unleashed their tantrums at PRO’s, (Pete Townsend of The Who comes to mind). Even SOCAN here reflects, from time to time, on their processes/methods, because this is what good managers do. Per the paper itself, first, the exaggerated title and the question it asks; no, PRO’s do not kill classical music…that would be too easy to advance and I have yet to encounter a composer that even hinted at that. Nor have I heard one say that “modern copyright law & practices…create new problems for classical composers”. Second, while her research on legal cases was well conducted, some of her research in other areas seem to be have been botched up. I’ll refrain from naming anyone but, 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 and call, for example, experts such as Arnold Broido of ASCAP’s Board Of Directors who also happens to be a classical music publisher or so many others involved in the PRO’s Writers/Composers or Distribution Committees around the world. Historically, music publishers (and collecting bodies) were created for classical composers and it so happens that music publishers lobby(ied) to increase the copyright protection terms. I would also suggest that she dig out her music history books and modify her intro which I find weak. Bach used Lutheran chorales because that what was prescribed by the Reformation (to this effect see text The Musical Reforms of Martin Luther). The romantic composers did indeed used folk music as implied in the paper. But, contemporary composers do not “borrow”, like in pop & rap music (or even during Bach’s time when it was culturally and artistically acceptable/accepted) some betray their influences thought. They do not get grants to further their skills/style and get formal education to “borrow” musical phrases but they do use already existing melodic contours and harmonic paradigms and such. She concludes that the Copyright Act restricts the borrowing of “popular pieces of the day”. This is incongruous, out of context and not even an issue with composers. Who did she hear complain?. Penderecki?, John Cage?. I doubt it. Also, I wonder what source she consulted that stipulated that the PRO’s “…share an equal share of royalties”!!!. They take a commission for operating expenses. Her proposed solution of shortening the copyrights for underlying works would create a riot, havoc and confusion…imagine adjusting the language on Termination Rights and all the other such legislative matters. Again, great job raising the issue and finding the topic but to weak a paper to be considered by the intelligentsia.

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  2. Oops, i forgot to say that i agree with her discourse and views on FMLA. Her position on CTEA and Justice Breyer's dissentive argument in that famous case could be debated. But, again, she opposes the effect of the FMLA with longer copyright terms...she's proposing shorter terms to faciliate the "long tradition of borrowing ideas"!!! but is (rightly so) for raising licensing fees to make up for the loss of income. Again, to me, this is a question of valuation of IP assets; what is more commercially beneficial for rights holders? a couple of thousands bucks for small businesses (distributed to pop writers as well, let's not forget) or the possibility to receive payments longer periods of time....(classical music, remember!). Thank you.

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  3. Dear Mr.Knopf,

    There are, most probably, members of any PRO's that need assistance in understanding their society's distribution methodologies. In fact, more writers and publishers need to get involved and spend time educating themselves on this part of their business. Some may also feel the need to further grasp how PRO's survey their licensees. I can understand the frustration of those composers that know the system and that don't just gratuitously complain. It is complex in many regards.

    I find your last comment interesting; "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.". I assume you mean the classical serious music publishers when you write "serious music publishers". The word "serious", as you know, is also used as a synonym to "classical" in that genre's vernacular. Now, this is a provoking statement, a thought-provoking statement, the latter i assume was your intent. Based on that assumption, I would add the following precision; there seems to be less classical music publishers that have the "ears" and that earnesly invest time, effort and money in 1) signing, 2) developing or give sufficient time for their writers to develop and, 3) promote their roster's works. The classical music publishing business has changed a lot these last years, and one does not have look long and hard to see accountants, MBA's and lawyers (not an attack on your profession or you personally, just a mere observation) running these entities. This industry sector needs "music" people running its businesses assisted by the experts mentionned above, not the other way around. In the old days, the people managing the composers' catalogues were able to edit and critique a composer's musical creations "on par" with their protégés, nowadays they act more as "administrators" (maybe as requested/needed by their clients). Finally, i want to add that it is very difficult and challenging for a classical composer's catalogue (or any type of IP assets) heir to find people to assist him/her/them with such a particular affairs. Lack of interest and/or knowledege rather than laziness maybe?.

    I am flattered by your open invitation for a casual chat.

    Regards,

    Martin Gladu

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  4. Mr. Knopf,

    Thank you for your kind words about my article. And for defending it against Mr. Gladu's somewhat harsh criticism. "Again, great job raising the issue and finding the topic but to [sic] weak a paper to be considered by the intelligentsia." Ouch. I am unsure of the relevance of a lot of his points. For example, the "weak" introduction -- about the obscurity faced by some of the great composers in their lifetimes -- had absolutely nothing to do with the later discussion of the use of familiar melodies in Bach's chorales. Contrafacta was a common practice of the time, regardless of whether it was dicated by the church.

    No, I haven't heard Penderecki or Cage complain about the lack of the ability to "borrow" from other composers. My focus was not on composers as well-known as Penderecki and Cage. Nor have I seen a composer comment that modern copyright law creates new problems for classical composers. Nor do I have an "in" with the board of directors at ASCAP. I simply saw an area where law and practice have a potentially adverse effect on composers of art music, and I examined the possible legal issue therein. That's the point of a student law journal note -- to find a potential and, hopefully,novel legal premise and examine the law around it. For example, the following year, the same journal published an article based on what would happen if all of the members of a large volunteer ensemble, such as the Mormon Tabernacle Choir, decided not to renew the assignment of copyrights in their recordings. An economic issue such as valuation would have been inappropriate for this particular forum.

    Again, Mr. Knopf, thank you for your kind words about my article.

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  5. Alexander De BleeckereNovember 24, 2008 12:08 pm

    I am currently writing a thesis on music sampling according to Belgian law and the above mentioned article by Miss Scales treats certain issues in which I'm very much interested. The problem is however that the link to the article has become invalid. Are there other links to the article or is it possible to send me a copy by email? I would be very grateful! My email address is alexander.debleeckere@ugent.be

    Kind regards,

    Alexander

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