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We have shown thus far that a higher statutory mechanical royalty rate is unwarranted. No less important, surely, it would have adverse impacts on the public interest, performing artists, new and experimental music, and upon the recording industry. These are the reasons:
The share of the total revenues from record sales that goes to
The aggregate dollar revenues paid by the recording industry to
The dollar revenues generated per license and per tune have increased
The increase in the compulsory rate to 3¢, an' more, as proposed
If not passed on, the aggregate dollar value of the increase would
These fact notwithstanding, there is one final argument put forth by publishing companies, copyright owners, and their representatives that must be addressed and dismissed.
Publishing companies and other copyright owners and their representatives have tried to waive any serious, documented discussion of the impacts of increasing the statutory royalty rate. They have argued that there is no way of knowing what the effects on payments and on the recording industry would be -- if any. They suggest that even the present 2¢ rate is merely a "peiling" and that, because of bargaining between record people and publishing companies, the actual royalty rate paid is often less than 2¢. They have said that raising the rate above 2¢ would merely be permissive, and that it would merely give "more room for bargaining" between publishing companies and record makers. They have said that "the 3¢ would merely be a ceiling" - a higher "ceiling" -- above which this bargaining could not go. They have said that the outcomes of all these "negotiations" would be subject to bargaining on the basis of the "relative positions" of copyright owners and recording companies, case by case. They have implied and have argued that the large majority of licenses granted would be bargained down to rates less than the statutory rate.
The picture suggested by this argument, of numbers of publishers and recording companies -- there are hundreds of each -- all sitting down together, haggling and negotiating rates and bargaining on the strengths of their relative positions, case by case, for each of more than 50,000 licenses granted in a representative year is a beguiling one. And it is a grave nisportrayal of how the industry has worked, now works, and must work.
The statutory, compulsory license rate is, and has been, the standard rate, which, along with standard, recognized non-discriminatory variations therefron, accounts for practically all license rates paid. The present statutory rate is not a "ceiling". It is the standard rate. In fact, some rates are paid that are above that standard; but these, also, are at standard, established variations above the statutory rate.
Such standard variations provide for lower rates for such uses as socalled "budget records" and records distributed by record clubs, and for higher standard rates on musical renditions that run for more than
5 minutes. Most of these variations are issued by means of standard licenses, issued routinely and practically automatically by a licensing agency used in cormon by most publishers. This is a point to which we shall return in a moment.
It was almost exactly 10 years ago that I presented here incontrovertible evidence that the vast majority of the rates paid to publishing companies were at 2$ and that, with rare exceptions, the rest were at standard variations from the statutory rate. These rates were not the results of "bar. gaining" or "negotiation" case by case. They were the outcomes of prevail. ing and necessary industry practice.
To make the point again, and to lay this ghost of "bargaining" to rest once and for all, I shall in a moment give you added, very recent evidence that shows that the practice of 10 years ago is -- inevitably -- still the practice today. This is no nere happenstance. But before doing so, let ne erplain briefly why it is that the industry does and must operate on the basis of standard license rates and standard variations, and cannot operate on the basis of case-by-case bargaining. When this is under stood, it will be seen why the present statutory rate is the standard rate and why any new statutory rate would, in turn, become the new standard.
First, as I pointed out a moment ago, some 50,000 licenses may be granted in a representative year. It is simply not feasible for publishing companies and recording companies to bargain together for each of these bany, many licenses. À major recorking :1na zay obtain, and a major publisain, company may grant, a score or more licenses on a working day. As a practical matter, there sust be, and there is, sone administrative mechanism for handling this problem. And that mechanism is based on standard contracts that incor. porate standard conditions under which licenses are granted and standard rates which, together with standard variations, account for practically all rates, with only . few exceptions. These standard, prevailing rates are not "bargained". Only very seldom, as I showed ten years ago and as I shall show again, are unusual arrangements "bargained" out and entered into. Any other procedure would simply be impractical.
In passing, let me point out very briefly a source of semantic confusion as to the process of what is sometimes called "negotiation" of license rates for use of copyright music in mechanical reproduction. In theory, there are two avenues to obtaining a license: either through the route of "negotiation" or through the "compulsory" route. According to the theory of the copyright law, a person wanting to use a tune in Dechanical reproduction of music can try to "negotiate" a license from the copyright owner. Then, if a copyright owner is uncooperative or intractable, any party wanting to record a tune that has once been recorded may sixply go ahead and do so and pay royalties at the compulsory statutory rate of 2¢ under conditions and procedures prescribed by the Register of Copyrights. In fact, the administrative and procedural mechanics of the corpul sory route are cumbersome for all parties, and are only very rarely used. Instcad, publishing companies have set up routine procedures for going the route of "negotiation". By definition and usage in the trade, any license that is issued under any procedure other than the "compulsory" provision is said to be "negotiated", even if -- and this is crucial to understanding how the industry works - the license is actuully issued under the most routine, the nost automatic procedure. Tens of thousands of licenses are issued every year absolutely routinely, absolutely automatically. And because they are not issued under the "compulsory" procedure they are -- by definition -- "negotiated". The fact that they are thus labeled in the trade should not mislead one to suppose for a moment that they were in an real sense haggled over or "bargained for",
This leads us to the second point in understanding why any new proposed Statutory rate would, in turn, become the standard rate.
in fact, many -- probably most -- licenses are applied for and granted in this routine fashion after the fact of recording, not before, as one would expect if there were any real negotiation.
A majority of copyright licenses are, and have been for many years granted through a single, common agency of the music publishing companies -the so-called "Harry Fox Office". This agency has been owned since 1969 by the National Music Publishers' Association. This agency is the commonly and generally used instrumentality where licenses are routinely and, for practical purposes, well-nigh automatically issued on behalf of copyright owners -- that is to say, "negotiated". When a record producer wants to use a tune, he fills out a standard license for indicating his intentions and sends it to the Harry Fox Office. He does not wait to receive some fon granting persission; that is unnecessary. He obtains permission through filling out and filing the contract fon, and proceeds to sake his recording autona tically. Later, the Harry Fox office will issue to the recording fin a standard contract, specifying the standard conditions, standard rates, or standard variations therefrom, under which the license is granted. The recording fin later sends the royalties due upon the license to the Harry Fox office which remits payments to the copyright owner or owners of the tune licensed.
There appear to be a few publishing companies that now do not use the Harry Fox Office to issue licenses and collect royalties and sonitor payments. More important, publishing companies and recording companies sometimes go around the Office when they are under common ownership. So also, sometimes, do artist-composers own the whole or a share of copyrights to music they are performing on a record; the record company generally pays royalties to them directly in such cases.
Nevertheless, the fact, alone, of the existence and use of common licenseissuing and royalty-collection and monitoring agencies, as I pointed out 10 years ago, could be a sufficiently important factor in industry practice to establish, at very least, a strong "pattern" in contract forms used and license royalties charged.
There is a third reason why there is not, and will not be, as argued by publishing interests, bargaining according to the relative strengths of the
Often, tunes are subject to fractional ownership interests. In such instance, a separate payment is remitted to each owner for his share of the royalty payment due on the particular license.