Copyright in the EU: Pearle*’s Survey and

Analysis

Charles-Henry MassaPearle*’s general assemblyStockholm, 12 December

2009

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!

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

Copyright users or holders?

All Members are copyright users Some, but not many, Members are

copyright holders

NB. “Copyright” here includes neighbouring rights

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!

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

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”?

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?)

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”)?

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)

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

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).

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?)

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

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.”

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

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

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)

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

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

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

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)

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?

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)

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?)

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)

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

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?

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?

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

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

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…

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?

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)

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?)

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?

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”

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?

Pearle*’s mandate

Lobby for multi-territorial licences

Lobby against Term Directive

Neutrality for producer’s right?

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

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...

Thank you for your attention

Your Questions? Your Comments?

Your Experiences?