Public Workshop on Competition in Licensing Music Public Performance Rights
The workshop was free and open to the public and made available as a webcast.
The Department of Justice (DOJ) held a virtual public workshop on July 28 and 29, 2020, to discuss competition in the licensing of public performance rights in the music industry. The workshop provided a further venue for industry stakeholders to weigh in on the ASCAP and BMI consent decrees and their implications for antitrust law enforcement and policy.
A series of panels discussed competition issues relating to the various types of public performance licenses offered in the marketplace, competition between performing rights organizations (PROs), such as ASCAP, BMI, and GMR, and the licensing of music to end-users. Panelists discussed whether or not certain terms of the ASCAP and BMI consent decrees should be modified, and whether the decrees were inhibiting innovative business models that may hurt consumers or artists. These panels included executives, PROs, songwriters, music publishers, music licensees, legal and economic experts, and other industry stakeholders.
Date and Virtual Attendance
July 28, 2020
July 29, 2020
|The workshop was free and open to the public and made available as a webcast.|
July 28, 2020
Opening Remarks: “Thank You for the Music”
Makan Delrahim, Assistant Attorney General for Antitrust, U.S. Department of Justice
Session 1: Remarks from Stakeholders on the Consent Decrees
David Israelite, President and CEO, National Music Publishers’ Association (NMPA)
Michelle Lewis, Executive Director, Songwriters of North America (SONA)
Elizabeth Matthews, CEO, American Society of Composers, Authors, and Publishers (ASCAP)
Michael O’Neill, President and CEO, Broadcast Music Inc. (BMI)
The Honorable Gordon Smith, President and CEO, National Association of Broadcasters (NAB)
DOJ Moderator: Karina Lubell, Assistant Chief, Competition Policy and Advocacy Section, Antitrust Division, U.S. Department of Justice
Session 2: Public Performance Licensing Alternatives
Panelists discussed the use and viability of alternatives to blanket licenses, including direct, adjustable-fee, per-program, and per-segment licenses under the Decrees. They also addressed the use and viability of source and through-to-the-audience licenses and whether those types of licenses should be limited or expanded. Finally, the panel discussed whether these alternatives presented a “genuine choice” to music users or whether the genuine choice provision of the Decrees should be modified.
Jackie Brenneman, General Counsel, National Association of Theatre Owners
Ted Cohen, Managing Partner, TAG Strategic
David Kokakis, Chief Counsel, Universal Music Publishing Group
Janet McHugh, Executive Director, TV Music License Committee
Mike Steinberg, Executive Vice President of Creative and Licensing, BMI
DOJ Moderator: Yvette Tarlov, Assistant Chief, Media, Entertainment, and Professional Services Section, Antitrust Division, U.S. Department of Justice
Session 3: Competition Between PROs for Songwriters and Publishers
The third session discussed competition between the PROs for artists. Panelists discussed the membership provisions of the ASCAP/BMI decrees, including provisions relating to eligibility to join a PRO, resignations, the maximum terms of membership agreements and music licenses, the use and transparency of licenses-in-effect, and member audit rights.
Danielle Aguirre, Executive Vice President and General Counsel, NMPA
Jordan Bromley, Board Member, Music Artists Coalition
Bart Herbison, Executive Director, Nashville Songwriters Association International
Clara Kim, Executive Vice President and General Counsel, Business and Legal Affairs, ASCAP
Jack Kugell, Board Member, SONA
DOJ Moderator: Owen Kendler, Chief, Media, Entertainment, and Professional Services Section, Antitrust Division, U.S. Department of Justice
July 29, 2020
Owen Kendler, Chief, Media, Entertainment, and Professional Services Section, Antitrust Division, U.S. Department of Justice
Jon Bon Jovi
Session 4: Licensing Music to Users
The fourth session discussed the licensing of music to end-users. Panelists discussed potential modifications to the Decrees including the “similarly situated” and interim fee provisions of the Decrees. The panel also addressed if there was a need for more robust disclosure of ASCAP’s and BMI’s repertoires to licensees and potential impediments to such disclosure. Finally, the panel considered whether the Decrees were effective or ineffective, created efficiencies or inefficiencies, or inhibited innovative business models.
John Bodnovich, Executive Director, American Beverage Licensees
Peter Brodsky, General Counsel and Executive Vice President, Business Affairs, Sony/ATV Music Publishing
Rick Kaplan, General Counsel and Executive Vice President, Legal and Regulatory Affairs, NAB
Stuart Rosen, Senior Vice President and General Counsel, BMI
Tres Williams, Executive Vice President, Business Affairs, iHeartMedia, Inc.
DOJ Moderator: Ben Matelson, Trial Attorney, Media, Entertainment, and Professional Services Section, Antitrust Division, U.S. Department of Justice
Session 5: Economists’ Views and Wrap-up
The last session provided a venue for economists to discuss the economic effects of the Decrees. Panelists debated ASCAP’s and BMI’s market power and any constraints on that market power. Additionally, the panel discussed whether the emergence of new PROs and new technologies, including streaming digital music and movie services, made the Decrees obsolete.
Dr. Adam B. Jaffe, Brandeis University
Dr. Kevin M. Murphy, University of Chicago
DOJ Moderator: Dr. Jeffrey Wilder, Deputy Assistant Attorney General for Economic Analysis, Antitrust Division, U.S. Department of Justice
Rene Augustine, Deputy Assistant Attorney General, Antitrust Division, U.S. Department of Justice