Performance rights organisation

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A performance rights organisation exists to collect and distribute royalties on behalf of audio and video artists, for performances of their copyrighted works under copyright law. In some countries it is called a copyright collective or copyright collecting agency. A copyright collective is more generic than a PRO as it is not limited to performance material.

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Functions

A PRO works by first signing up artists to become members, and then bargaining with the users of the artists' copyrights (directly or through the users' representatives) the royalty rate to be paid for such use. Without a PRO, it would be necessary for each artist to contract with each user individually, which is practically impossible.

PROs often take disputed cases to court, or in the U.S. to the Copyright Arbitration Royalty Panel, or CARP, of the Library of Congress.

Closely related to PRO's are reproduction rights organizations (RRO's), some of which are organized as societies (which take an assignement of the rights of the author and copyright owner) and some as agencies (which act as licensing agents for the copyright owners). Music copyright owners are often referred to as "music publishers". RRO's represent essentially the same interests as PRO's, but for different purposes. For instance, the public performance of music in live venues such as arenas or bars is a use of the public performance right. The reproduction of a song onto a medium such as a CD or by way of download is an exercise of the reproduction right.

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History

The first performing right society was established France in 1851. In the United Kingdom, the Copyright Act 1842 was the first to protect musical compositions with the Performing Right Society, founded in 1914 encompassing live performances. The rights for recorded or broadcast performance are administered by the Mechanical Copyright Protection Society, founded in 1924. Italy introduced a performing-right society in 1882 and Germany in 1915. Societies in United States were founded in 1914 and 1944.

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Advantages

PRO's and RRO's provide a wealth of advantages to authors (composers, lyricists) and music publishers. First, the task of keeping track of the use of a musical work is detail- and labour-intensive. Any song can be performed by any radio broadcaster at any time, for instance. The individual author or publisher would have no hope of affordably trackings such usage. Likewise, there are always far more creators and owners of copyrights than there are users, and this tends to make for very powerful users whose collective negotiating power would give them control over the marketplace value of the use of music if creators and copyright owners were not able to band together as collectives. Collectives thus level the playing field and allow for the setting of fair royalty rates, either through negotiation or the intervention of governmental tribunals with rate-setting powers, such as the Copyright Board of Canada, the UK Copyright Tribunal, or the Copyright Tribunal in Australia.

PRO's and RRO's also provide enormous advantages to users, who are afforded one-stop shopping (or very close to it) for all works through blanket licensing. Just as it would be prohibitively expensive for creators and rights owners to track down all uses of their songs on their own, it would be impossible for individual users, no matter how powerful, to find the time and information necessary to obtain licenses for the use of works on an individual basis. Collectives thus simplify the licensing process and drastically reduce what would otherwise be an insupportable cost of administration.

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Criticisms

In the U.S. and many other countries around the world, PROs are often criticised for using heavy-handed tactics to "extort" money from stores which play music. These tactics include sending lawyers to demand payment and even having U.S. Marshals raid stores in order to take money from the registers. This view is mistaken, however. Songwriters and music publishers, unlike the proprietors of physical goods, can't refuse to ship product to a deadbeat customer. Music is laughably easy to steal, and a depressingly large number of users would, in the absence of enforcement, simply ignore the fact that they are legally required to pay for what they use.

Large users, such as broadcasters, are well-represented by very capable lawyers in hearings before rate-setting tribunals and exert unceasing efforts to erode the rights and earnings of creators and music publishers. Similarly, they lobby intensively with legislatures in all countries to create "exemptions" to allow them to use music without paying. This battle will go on as long as people both value music and dislike paying. Likewise, collectives will seek to collect the royalties that are due to their members. That some users, unwilling to pay for what they use, would condemn the actions of collectives as being heavy-handed or choose to malign collectives as "cartels" is understandable. Yelling is cheaper than paying.

The power of PRO's and RRO's to act in an unfair or illegally monopolistic fashion is subject to the same kind of legal intervention as any other industry. In the US, ASCAP operates under a consent decree negotiated with the US Department of Justice in response to allegations of antitrust activity by that organization. In other territories, such as Canada, all tariffs proposed by Canada's PRO, SOCAN, must be scrutinized by the Copyright Board of Canada, and public hearings are held at which objections may be made by intervenors. Tariffs proposed by collectives in Canada are rarely, if ever, approved by the Board in the exact form in which they have been filed.

They have also been criticised for charging non-profit organisations for their use of copyrighted music in situations where the non-profit organization was not earning money from the use. ASCAP, for example, was eventually forced to abandon its attempts to charge the Girl Scouts of America for singing campfire songs in the face of public opinion. ASCAP's and SESAC's policy of charging non-commercial educational (NCE) radio stations for playing copyrighted music has also been criticised, especially by college radio stations across the U.S., which rely entirely on student and listener support for funding and have difficulty affording the extra fees.

On the other hand, songwriters and music publishers contend that non-profit organizations pay for other goods and services they consume, and very often pay wages to those who are in their employ. The proposition that music should be free while others are being compensated for their supply of goods and services is naturally objectionable to songwriters and publishers who do not have any say in whether their music will be used in the first place.

At times, PROs have also been criticised by artists for slow or non-existent payments, or excessive amounts being taken out and kept by the PRO as membership dues or service fees. However on the other hand, the creators of music can hardly enforce and protect their rights without PROs.

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Organisations

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International

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Australasia

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Europe

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North America

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United States

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Canada

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South America

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