Monday, April 25, 2005

Some history of ASCAP and why Law&Econ won't help us with IP policy

(Hee. I lied about not posting much.. but actually I wrote this for the class blog, but I think it's worth posting here too) (and Law&Econ might help us, I suppose, but it's for heaven's sake in NO WAY sufficient analysis. not if it's done like this..)

Although I found Robert Merges' piece (Compulsory Licensing vs. The Three "Golden Oldies" : Property Rights, Contracts, and Markets) generally quite problematic, I'll stick to one example.

In the section titled "How Markets Solve the Licensing Dilemma Through Voluntary Associations," Merges tells of the rise of ASCAP, a collective rights organization that spontaneously arose during the 1920s, and points to this as an example of the market producing structures that enable proper market function (which is also somewhat elided with social desirability).

ASCAP from 1912 to the 1940s, despite a non-discrimination clause, excluded Black, 'hillbilly' and Mexican/Latino performers. In terms of the styles of music that became widely popular, this has the effect of making a free gift to whiter and wealthier musicians and composers across America, of the culture and what some would call "intellectual property" of their browner and poorer neighbors. It wasn't until around 1941 that BMI (founded only a year before) challenged ASCAP by signing and attempting to get "race music" and other under-represented genres on the airwaves. Up until that time, however there was an incredible pool of 'free music' upon which folks who were members could draw and then sell for their own benefit. (And a whole category of producers who were apparently producing without incentive.) The rise of white swing artists and their records is a good example of the former situation.

(From Rock 'n Roll: The Beginnings, by Donald J. Mabry)
"ASCAP controlled the bulk of American popular music between its founding in 1912/14 and the 1940s. ASCAP decided who could belong to the organization. Each music publisher had one vote for each $500 in royalties earned by the publisher in the preceding year. By 1958, three music publishing companies controlled 51% of the publisher's vote. Writers got one vote for each $20 in royalties earned in the preceding year; in 1958, less than 5% of the writers controlled 51% of the writers' vote."

So apart from representing one section of the population at the expense of others, and in fact enabling the transfer of property (assuming that's how you see music) of one group to another at no cost to the recipient, ASCAP itself was also incredibly skewed towards already-powerful players and at the mercy of existing members' prejudices. On two levels, this seems to me a poor "solution" to licensing problems.

1) assuming we did only care about market efficiency, ASCAP seems a poor example, based on its exclusion of a substantial number of producers and the enabling of other producers to profit off that exclusion.

2) assuming we might care about what kind of a society we live in, whether it is fair, racist or whatever, ASCAP functioned (among other things) to possibly reward copying of works of non-included members, to prevent non-included members from being reqarded, and as a mechanism that maintained white supremacy.

Merges mentioning of ASCAP is a splendid example of looking at how institutions function in their historical context, rather than in the context of an abstract economic model. I commend anyone who wants to look at how institutions (like CROs) have actually functioned, by seeking examples from history. However, without serious engagement with the historical contexts, the examples are merely anecdotes, with no factual or historical power, and using them actually does harm to our understanding of our history, as well as to our understanding of the problem at hand.

Beyond this issue, we can learn a lot from the example of ASCAP about questions we might want to ask ourselves when crafting possible solutions to the licensing dilemma. Some questions that this example raised for me:
1) Who produces IP?
2) Who profits the most from IP-making? What opportunities are there for others to profit? Who controls how others can profit?
3) What pre-existing bodies of work are available that are unprotected by IP law, and who has the ability to profit from them?
4) What is compensation based on now, under the current copyright regime?
5) Should our legal system ensure that those who are the primary beneficiaries now remain the primary beneficiaries? What other issues might our legal system be concerned with?

*For a few of the works that deal with the issues of ASCAP and race, or IP and race you can start with:
Arnold Shaw, Honkers and Shouters: the Golden Years of Rythm and Blues.
Jeffrey Melnick, A Right to Sing the Blues: African-Americans, Jews, and American Popular Song
K.J. Greene, Stealing the Blues: the Fleecing of Black Artists - Does Intellectual Property Appropriation Figure in the Debate over African American Reparations?

No comments:

Post a Comment