Is It Time to Repeal the Section 115 Compulsory License? One Songwriter Is Formally Urging the Copyright Office To Do Just That

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Washington, D.C.’s James Madison Memorial Building, which houses the U.S. Copyright Office.

Is it time to repeal the Section 115 compulsory license? Singer-songwriter George Johnson believes so, and he’s calling on the Copyright Office to initiate a formal study as well as related roundtables on the matter.

A longtime copyright-reform activist, Johnson just recently described his position – and the perceived positives associated with the rarely discussed Section 115 repeal – in a letter to Register of Copyrights Shira Perlmutter. Additionally, the Nashville-based musician elaborated upon his view of the relevant Copyright Act section across a detail-oriented 19-page supplemental resource.

“The 1909 compulsory license was designed for a different time, for the local sale of piano rolls and not contemplated to be used billions of times, by the largest trillion-dollar corporations in the history of the world, with teams of attorneys,” the mentioned letter reads towards its start, proceeding to describe the Big Three labels’ “current anticompetitive misuse of the compulsory license at the” Copyright Royalty Board (CRB) as the multifaceted situation’s foremost issue.

The text also points to “several studies” (initiated by former Register Marybeth Peters) that are said to have “questioned the continued necessity of the compulsory license” – before underscoring the perceived need for sweeping regulatory action spurred by the Copyright Office.

“The license, the rate-structure, and the CRB process are all truly broken in almost every way and must be fixed immediately or completely abandoned,” the letter reads closer to its end. “All rational market actors who currently use private collective blanket licensing providers would certainly switch, proving no need for federal licensing to operate efficiently.

“We all could really benefit from the Copyright Office’s input, ideas, and legal opinions on these extremely important issues since each and every songwriter cannot compete with RIAA and NMPA counsel, nor 25 years of their regulatory capture,” the message indicates.

Meanwhile, the aforementioned 19-page resource explores at length all manner of related topics and information, with the central theme being the alleged conflicts of interest stemming from the major labels’ owning today’s largest publishing companies.

Of course, these Big Three-owned publishers have a substantial presence within the National Music Publishers’ Association (NMPA), which has in the past rallied with the majors behind what critics described as highly questionable royalty proposals.

The CRB last year rejected one such proposal, which would have left in place a longstanding mechanical rate of 9.1 cents per song for physical products and downloads. In explaining the decision, the three-judge entity made clear the belief that “vertical integration linking music publishers and record labels raises a warning flag.”

(Subsequently, the NMPA and the majors agreed to increase said rate to 12 cents per song. 2022 further delivered the announcement of a cost-of-living adjustment for webcaster royalty rates as well as the CRB’s approval of a Phonorecords IV settlement, spanning 2023 through 2027, for on-demand streaming services. The latter likewise elicited pushback and preliminary calls to do away with the compulsory license.)

Elsewhere in the document, Johnson explored the “broken” Mechanical Licensing Collective (and raised questions about how exactly its seemingly massive pile of unmatched royalties, destined for distribution to existing rightsholders based upon market share despite deriving from works they don’t own, is being used), reiterated that 16 years have passed since the last “comprehensive” compulsory license study, and tied these and other points back to songwriters’ economic reality as well as the real-world impact thereof.

“I lived on Music Row for almost 25 years,” Johnson’s white paper states, “and when I got there in 1997 there were about 4,000 songwriters or ‘publishing deals’ according to the Tennessean, and in 2018 there were less than 400 songwriters! That is a 90% percent drop in 20 years and nobody cared!

“All due to the negative harmful effects of Congressional price-fixing and central-planning under the 1909 compulsory license, compounded by the regulatory capture of 3 major record labels, their lobbyists, Google/DiMA, and their armies of attorneys,” the text proceeds.