Coercion
Coercion is the practice whereby a composer is forced to assign the publishing rights in their music as a condition of being granted a commission.
Coercion: why do we object?
Coercion is an abuse of position by the producers and broadcasters of television programmes and advertisements. The producer is in a position to pressurise the composer into signing away their copyright, with the threat being the non-granting or even withdrawal of a commission. Put simply ... Pay to Play.
Coercion excludes from the marketplace composers who refuse to “play ball”. It also excludes those publishers who don’t have a deal with the commissioning broadcaster or production company. This can be viewed as a “failure of the market”.
Composers are not able to assign their music to a publisher of their own choice (or remain unpublished). In crude terms, this is a rights grab, or more accurately a money grab, given that very little “publishing” goes on in the case of television music.
There is a “conflict of interest” issue. If a publisher is handling a catalogue on behalf of a broadcaster or production company, does their primary loyalty lie with the broadcaster, or with the composer of the music in their catalogue?
Why is Coercion a Competition Issue?
We believe that coercion is a competition issue because:
1. Distortion of the Market
2. Abuse of Dominant Position
3. Collateral Contracts
i) Distortion of the Market
Television music represents a “market” and that coercive activity by commissioning parties is distorting the fair operation of that market to the disadvantage of freelance composers and other publishers who are unable to enter this market.
ii) Abuse of Dominant Position
The major broadcasters (for example ITV in the UK) have a dominant position in the UK television market. Their policy of insisting upon assignment of music publishing rights in all music written for programmes produced by them is an abuse of that dominant position.
iii) Collateral Contracts
When music is commissioned for a television programme or advertisement, all that the producer requires is a licence to synchronise the music with film. The insistence upon acquiring copyright in the music (upon terms and at royalty rates which are disadvantageous to the writer and for the life of that copyright) amounts to a collateral agreement.
Why is Coercion an Economic Issue?
Coercion Creates foreclosure in the market for rights administration (the role of a legitimate music publisher) through vertical agreements. This allows the broadcaster or production company publisher to exercise market power over the writer and abuse its dominant position.
The abuse of dominance is reinforced by the coercive behaviour creating a barrier for new entrants to the market for publishing media music which prevents the market from acting efficiently. In the market for publishing popular commercial music the royalty rates achieved by the writer are considerably higher. Coercion artificially reinforces the reduction of these royalty rates. If coercion did not occur in the market, there would be no abuse of market dominance.
