Court of Appeals decision backs creators in ASCAP & BMI consent decree battle
Songwriters, composers, creators and collective management have prevailed in a legal action over consent decrees in the United States. On December 19th, the Court of Appeals for the Second Circuit ruled against the U.S. Department of Justice (DOJ) and affirmed Judge Louis L. Stanton’s previous decision that the BMI consent decree allows for fractional licencing.
The decision is a relief for creators, removing the uncertainty and confusion that would have followed if a 100% licencing model was enforced. CISAC had intervened in the case on behalf of international and local creators, filing an amicus brief for BMI on August 24th. The brief highlighted the important potential implications of the DOJ decision throughout the collective management sector.
CISAC Director General Gadi Oron commented in a Billboard editorial that the original DOJ decision was “made with total disregard for the international framework, where fractional licensing is practiced, even if it is less of a factor because many countries only have one performance rights organization representing songwriters in their territory”.
The amicus brief was based on the following arguments:
- Full work licensing of jointly-owned musical works (as the DOJ pretended) is contrary to how copyrights are conferred in other countries and to the way rights are globally and collectively managed
- Fractional licensing is a well-established component of the global licencing market that properly accommodates differences in copyright regimes around the world
- Europe´s experience confirms that partial and fractional licensing is fully consistent with a functioning and competitive marketplace
- DOJ´s proposal would disrupt a well-functioning global licensing system and increase the administrative burdens of an already-complex structure
- Prohibiting fractional licensing of Jointly-Owned Musical Works impinges on creators´ ability to determine how their works will be exploited.