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Copyright in the EU: Pearle*’s Survey and
Analysis
Charles-Henry MassaPearle*’s general assemblyStockholm, 12 December
2009
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The Survey in context New Parliament and new Commission Commission’s Consultation on Creative
Content Online Deadline for comments: 5 January 2010!
Questionnaire: despite short timeframe, 14+5 responses (4+1 from France)
Complete report for Xmas 2009 Please send me feedback by Monday 21st
Permanent survey with Anita!
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Plan Copyright clearance and ownership Collecting societies and multi-
territorial licences Term Directive (extension and co-
written works) Live performance producer’s right? Pearle’s mandate and Creative
Content Online
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Copyright users or holders?
All Members are copyright users Some, but not many, Members are
copyright holders
NB. “Copyright” here includes neighbouring rights
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Clearance: which rightholders? Multiple rightholders: cf. survey:
Texts (playwrights, libretti, scripts, etc.), published editions, music (compositions), scores, sound recordings, films, photos, choreography, set design, lighting plans, costumes…
Architects Stage designers? (e.g. Marthaler 7%) Orphan works (unidentified copyright holders):
fear of later bills deters from making AV production
Beware of authors (e.g. composers) who do not even know they have subscribed to a collecting society!
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Clearance: which rights? Mechanical reproduction rights (including
adaptation, distribution of copies) Individual management (incl. rental?) EU level
Performing rights (including live performance, broadcasting, web-streaming) Collective management
Making available on-demand: more individual National level
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Grand rights v. Small rights Not a legislative term of art, stems from
contractual practice Less about substance (dramatic?) than mode of
management (individual administration)? Switzerland: fight with publishers about the
demarcation line between Grand rights and Small rights, especially for ballet
Concert music (Shostakovich) for ballet = small (for theatre) or grand (for publisher - Atlantis, Universal, Schott…)
Sweden: scope of “elements essential to the progression of the play”?
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Rights: Specific issues (cf. CPDO debate) Incidental rights (droits fortuits)
fee for broadcasting in the foyer fee for videos in box-office area and ad columns fee for surtitles
Rental of scores or texts excessive tariffs
NB. texts sent by e-mail, but charged like textbooks
quality of scores or texts (PS. abolish publisher’s right on scores?)
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Copyright clearance: a rough check-list 1. Subject-matter and requirements: Is the
material you wish to use a work protected by copyright?
2. Duration: Is the work still protected by copyright?
3. Exclusive rights: Is the use of the protected work infringing (and subject to authorisation)?
4. Exceptions: Is the infringing use exempted by a statutory exception?
5. Ownership: Who is (are) the copyright owner(s) (initial or assignee)?
6. Licensing: Does he/she license individually (“grand rights”) or are his/her rights managed by a collecting society (“small rights”)?
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Exceptions Hardly harmonised at EU level (Dir.
2001/29/EC) Lobby for exceptions (for theatres) to
use art works more freely in advertisement (like more privileged museums)
archive Quotation exception (for texts in theatre)
scope unclear (“motivated amount”? in ES)
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Recording of concert:3 schemes for ownership (i) Orchestra acts as intermediary between
musicians (its employees) and recording producer. Then, orchestra secures the transfer of rights from musicians to producer. Orchestra rarely receives a financial consideration
for that service Orchestra may face legal uncertainty as producer
requires it to transfer rights it does not hold e.g. online exploitation not foreseen in audiovisual
agreement with musicians
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Recording of concert: 3 schemes for ownership (ii) Orchestra and recording producer
are co-producers. Here also, orchestra secures the transfer of rights from musicians and other rightholders (NB. moral rights not transferable in France) (iii) Orchestra is 100% producer and
deals with distribution right through a time-limited licence In France, virtually no orchestra owns its label.
In the UK, at least 8 orchestras own their label (some also do in Norway).
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Members’ model contracts and clauses Germany: Model contract for members
(theatres) with recording companies especially those who record a whole
production on DVD for sale and make a buy-out of the rights for an unlimited time, but do not pay an adequate fee to the theatre
Model IP-clauses for individual employment contracts or collective agreements with trade unions? (Finland?)
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Collecting societies Studies commissioned by EU Parliament
KEA Study, “The Collective Management of Rights in Europe: The Quest for Efficiency”, 2006
ELIAMEP Study, “Collecting Societies and Cultural Diversity in the Music Sector”, 2009
EU Institutions Commission’s Recommendation 2005/737/EC Parliament’s Resolution in response 2007 Commission’s CISAC decision 2008 (quashed CISAC’s
model contract for reciprocal representations bilateral agreements, with membership and exclusivity clauses contrary to Art. 81)
Parliament’s Resolution in response 2008 Commission’s Consultation on Creative Content Online
2009
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Disadvantages of collective management KEA Study (and Toubon draft Memorandum)
“It creates a national monopoly which sits uncomfortably with EC rules on competition.
It reduces price competition. In the absence of reciprocal representation
agreements it fragments the internal market. It promotes territorial licensing as opposed to
pan-European licensing. The monopoly position of collecting societies
renders the latter less inclined to understand or to adapt to market realities. It makes them prone to accusations of management inefficiencies.”
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Negotiations with CMOs (i) Individual negotiation of cultural
enterprise with CMOs e.g. all French orchestras negotiate individually
(ii) Agreement with trade union of employers (on behalf of its Members)
(iii) Agreement with federation of trade unions of employers (not yet?)
NB. Very limited margin as French law grants CMOs the power to fix their tariffs unilaterally
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Nordic harmony? Good atmosphere for negotiation,
agreements in the interest of both parties (Nordic harmony? Estonia, Finland, Norway…) Finland: proposed structural change of tariffs
resulting in 500% rise withdrawn after discussion Also Sweden, but
one Swedish collecting society refused to clear music played on stage in a play by a guest performance from Latvia; the show was subsequently cancelled
Also Denmark, but not with publisher
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Bargaining position
Strong bargaining position allowing advantageous tariffs (Germany) Still too high tariffs for playing
recorded music on stage, especially in dance prods
“Clustering” of users, bargaining together on tariffs and criteria (Netherlands)
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Difficult relationships France: difficult relationships with collecting
societies: number of societies ambit of collection unilateral fixing of tariffs amounts too high and mode of calculation disconnected
from the real economy of live performances subsidies to live performance producers through a non-
transparent process, often in consideration of unfair tariffs unrealistic demands of remuneration for record producers
(sometimes causing the project to be cancelled) opaque financial management etc. (unfortunately, limited power and need to go to courts) SACD has no differentiated rate for young authors
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Some stories Belgian stories:
Lack of license abroad impedes touring (Beckett)
Double “taxation” until proof of invoice Breach of exclusivity of license (Turini) NB. publicly funded users pay more
Czech Republic: Royalties up to 30% of gross income!
Bulgaria also complaints
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Figures Sweden: estimated figure for 2008:
7.000.000 SEK = 700.000 € Belgium: 140 members pay around
(estimate) 2.800.000 € per year Bulgaria: around 500.000 € Czech Republic:
Opera house: 15.500 € for scores Bigger Org° (4 ensembles with more than 500
performances/year): 135.000 € Musical Theatre: 442.160 €/year Small drama theatre: 35.000 €
approx. 13% of gross income // 12% Finland or 12.4% France Estonia: National Opera: 94.000 € in 2008
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Figures France:
Author’s rights for private theatres > 10.000.000 € + if music: composer, musicians, record producer
Germany: Public theatres: 31.841.000 € Private theatres: estimated 10.000.000 €
Netherlands: Membership (with rock and pop venues) pays about
25.000.000 € a year on copyright (most of it on music, but also for texts, choreography etc.)
Combined with non membership: total amount of copyright for the performing arts estimated at € 35 - € 45 million a year (on 50.000 performances for 16 million people)
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Intermediary
Quite a few Members act as an intermediary between their own Members and Collecting Societies Germany: good for members of
association: get 20% discount on tariffs!
Good also for association: “kick-back” given by collecting societies for its help in collecting the money?
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Legislation at national level
Netherlands: successful lobby to change the law governing collecting societies in favour of users
Pearle’s Members may also lobby at national level (with a “cluster” of users)
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Multi-territorial licences Now territorial fragmentation, less due to
territoriality of © than contractual practice
Commission’s masterplan: no more t.f., especially for online uses
“One-stop-shop” for pan-European licence Healthy competition between CMOs (CCO: also consolidating reproduction and
digital performance?)
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Multi-territorial licences
Pearle*’s Members stand in favour Belgium: yes & no, risk of higher tariffs
NB. Touring less important for theatres with “exotic” languages (unless translation)
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Multi-territorial licences: but… Concentration of territories, but… Fragmentation of repertoires
(Cf. right to withdraw) Fragmentation of rights
Author, composer, music publisher, performer, phonogram producer…
Cumulated (and increased?) licence fees
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Legislation at EU level?
Efficiency but also cultural diversity Good governance and transparency:
tariffs, accounts and distribution of income
Control by Executive and/or Judiciary?
Study on audiovisual works in 2010? Draft Directive for Pearle to comment on?
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Term Directive 2006/116/EC: Proposed extension to 70 years
For: very few Members (roughly those whose Members own labels) Cost-benefit analysis? (use now v.
after 50 years) Against: most Members
Stalled under Swedish Presidency, now revived under Spanish one?
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Term Directive 2006/116/EC: Proposed extension to 70 years
Proportionality issue = measures not suitable for the proposed end: Improve the social situation of the
performing artists (≠ enrich majors via poor “hostages”)
Time factor for cost-benefit analysis
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Term Directive 2006/116/EC: Proposed extension to 70 years
Alternative measures: Mandatory contractual rules
protecting performing artists against buy-out contracts
But how devise them against sound recording producer and not live performance producer?
Pension schemes
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Term Directive 2006/116/EC: Co-written works No impact assessment Essentially a (minor) administrative problem?
Less severe than fragmentation into 27 territories! “A trick to raise more money”? Time factor Why only for music and lyrics?
Music and images or choreography + Multimedia, illustrated books, industrial design…
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Term Directive 2006/116/EC: Co-written works Argued: already 70 years from last
surviving co-author for “oeuvre de collaboration” Concept not harmonised (see IViR
Study, “Recasting…”, 2006, Chap. 4) But proposal seems to go beyond: even
if distinct, separate contributions! E.g. Amin Maalouf’s libretto of Kaija
Saariaho’s “L’Amour de Loin” (Love from Afar) published separately as a small paperback -> not collaborative, but co-written work?
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Term Directive 2006/116/EC: Co-written works
Analogy with other “split” regimes? UK CDPA s. 5B(2)-(3): where a movie
soundtrack is played without moving images (e.g. jukebox in pub), only need for consent of rightholder in recording of soundtrack (if with it, only need for film, incl. soundtrack)
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Live performance producer’s right: inspirations Law in Germany
“The general idea is that the producer participates in the copyright of the performing artist concerning recording and broadcasting”
“Prodiss” proposal in France Producer = initiative and responsibility for live
performance Exploitation of derivative products Creation of a new collecting society No (sharing) impact on equitable
remuneration for private copying (seeking unions’ support?)
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Producer’s right: analogies Analogy with other neighbouring rightholders?
Phonogram or film producers, broadcasters Database producers and sport organisers (France)
Analogy with statutory presumptions of transfer of copyright?
Audiovisual works (case-law: does not cover live performances) producers and software employers
Devil’s Advocate: analogy with book publisher? Initial owner is the author of the creative work, not
the investing publisher Idem for creative performer and investing producer?
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Producer’s right: survey Caveat: very strong feelings among Members For: France (save 1) and Germany
+ Czech Republic, Denmark, Estonia, Norway, Sweden
Against: Belgium and Netherlands + Bulgaria, France (1), Switzerland (?), UK
(indifferent or “police existing rights, rather than add yet another layer of copyright”)
Buddhist view: “you think you are going to benefit, but in the long run we all pay”
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Producer’s right: policy options Majority in favour, but no broad consensus
Lobby at national level for a producer’s right
Once several producer’s rights obtained at national level, contemplate harmonisation at EU level?
Rely on contracts (if no prior buy-out!) Lobby for national contractual rules
restricting prior buy-out of performing artist’s rights by sound record producer?
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Pearle*’s mandate
Lobby for multi-territorial licences
Lobby against Term Directive
Neutrality for producer’s right?
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Creative Content Online Foster multi-territorial licensing Create central repository or database
with free accessible ownership and licence information on world repertoire
Transpose solution of Satellite and Cable Directive (country of origin) to online delivery of audiovisual content Single state clearance -> for the whole
EU Toward a European Copyright Law?
Single title for the whole EU
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Recasting European Copyright Law?
A Member’s radical proposal: No harmonisation (“only harms us”),
but 1. copyright only to creative artists (no
producers, publishers, musicians etc.) 2. only during lifetime 3. only at the beginning of the chain
and not at each intermediary...
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Thank you for your attention
Your Questions? Your Comments?
Your Experiences?