United for streaming - GramArt › ... › 2016 › 03 › United_for_streaming.pdf · 2019-04-09 · UnitedforStreaming5StudypapercommissionedbyGramArt5*bySæmundFiskvik

Study paper commissioned by GramArt Translated from Norwegian original text

Kirkegata 5, 0153 Oslo, Norway +47 22 00 56 50 [email protected]

Sæmund Fiskvik

United for Streaming

Legislation and management

of artists' rights

United for Streaming -‐ Study paper commissioned by GramArt -‐ by Sæmund Fiskvik

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Introduction -‐ Part 1

New times -‐ new systems

The situation of music artists clearly worsened with the transition from CD to streaming. The same is true for many smaller music producers and record labels. In light of this, GramArt has launched an analysis of the issues involved, hoping to

Inspire debate on the issues Spread understanding of the hurdles of copyright in CyberSpace Examine the physical and legal nature of streaming Discuss alternatives to the royalty system Propose a viable route map to escape the confusion ... and not least, draft new legal paragraphs in support of this route map

This brief says little about the monetary split between artist and label. Instead it examines how artists' remuneration for streaming can be collected without being diverted as royalty through the label. The proposals include a collective system, similar to the CMOs TONO and GRAMO, to collect and distribute remuneration to the artists. The stated benefits are:

-‐ Distribution and administration become more professional and transparent

-‐ Remuneration can exceed royalty under a record label contract -‐ Groups presently excluded can be included, notably session musicians -‐ Licencing becomes easier for streaming providers.

A consequence is a change in the cash flow, and on the next page different models are examined.

-‐-‐ So no other countries have introduced anything similar? No, of course not. Norway and Sweden are the global pioneers in streaming. Actually, one country has introduced a similar model, Kenya adopted such legislation in 2012.1

Oslo 8 May 2013, Sæmund Fiskvik

1 The author serves as a copyright coach for producers and artists in Kenya.

Record directors love to have a new

car every year, but they will

stick to the good(?) old record

contracts for ever... even into

CyberSpace.

- Who wants to join them?

Photo: Svein Erik Dahl


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Introduction -‐ Part 2

Cash flow when records are sold

Basically, composers, artists and labels each have their separate rights. Figure 1 shows how composers (authors) and artists allowed labels to protect their rights when records were sold, in return for royalties.

With the transition to streaming (Figure 2), composers broke out of the model and signed a direct contract with the content providers, leaving artists behind with their labels and royalties.

Key to figures: Fig 1. Physical record sale (CD): Record store, Record label, Artists, TONO/ncb, Authors, Studio musicians bought out. Fig 2. Present-‐day streaming: Content provider, Record label, Artists, TONO, Authors, Studio musicians unpaid. Fig 3. Key streaming proposal: Content provider, GRAMO, Record label, Artists, Studio musicians, TONO, Authors. Fig 4. Alternative streaming proposal: Content provider, Record label, GRAMO, Artists, Studio musicians, TONO, Authors. 1 2

Physical record sale (CD) Present-‐day streaming

Buy-‐out of session musicians Sessions musicians not remunerated 3 4 Key streaming proposal Alternative streaming proposal

Streaming is performance of music, and performance is best administered collectively, I believe. Figures 3 and 4 illustrate the situation if artists opt for the same model as composers, and administer streaming themselves -‐ meaning collectively -‐ such as through GRAMO.

And, just so there is no misunderstanding: Even if artists opt for such a model, labels will in any case retain their performance right in the case of streaming – which may even be more valuable than the artist's right (?).

Content-‐ provider

Record company

Artists

TONO Authors

Content-‐ providers

GRAMO

Rec. company

Artists

Session-‐musicians

TONO Authors

Content-‐ providers

Rec.

company

GRAMO

Artists

Session musicians

TONO Authors

Record shop

Record company

Artists

TONO/ncb Authors


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Tabloid version: Sickness -‐ Symptoms -‐ Advice

How YOU win the streaming battleArtist organisation GramArt is launching a new type of copyright in CyberSpace. Powerful record majors are being challenged about their record contracts and the royalty scheme.

Should artists' streaming remuneration come via the record labels, or should artists collect the money collectively themselves, through something like GRAMO?

The debate is hotting up! The question is: Why should streaming fees be regulated in the record contract, when revenues for radio plays are paid directly through GRAMO?

Legally speaking, both radio broadcasts and streaming are two ways of public performance of music, and rec. contracts previously never regulated performance rights. The stakes are high!

Status quo from labels?While some labels are pricking up their ears at the new model, others just snicker and dust off the royalty contracts. As one label boss declares, it is "devastating for the artists to pursue such an ego trip just as the record companies are finally seeing hope of earning money again".

In a recent comment, a famous label director insisted that the good old contract model must be preserved, asserting that "collective management is just some old communist rehash by Mr Fiskvik." On a poor line from Hanoi, we asked Fiskvik for a response:

"Preserve the old record contracts? Preservation is for museum curators! The record business has never been about preservation, only innovation! -‐ Get Rich or Die Trying" was his impassioned reply.

End of Royalty? "Artists should not get royalty for performance." "Royalty belongs in an age when shops sold records." Such ideas are being aired in a controversial analysis commissioned by GramArt.

15 or 50% ? When radio stations pay for a music performance, the artist pockets 50%. But when Spotify or WIMP perform the music, the artist only nets roughly 15% royalty, maybe even less.

Demand may be 33%.

Streamed daily, paid never:

Online Robbery Two respected studio musicians are shouting a warning to colleagues: "Artists' exclusive rights offer no protection in practice in a world based on Internet sales."

On paper, even session musicians have an exclusive right to streaming, but in fact they never get paid anything. They point out that they earn significant GRAMO revenues when a record is performed on the radio, but nothing at all when it is streamed. They are now demanding a change in the law to support collective control, and are challenging the Ministry of Culture: ”while culture promises are honoured right and left, copyright has suffered eight years of famine under the government's changing culture ministers", they claim. The GRAMO model is put forward as the ideal solution.

Read more about the new law paragraph on page 27

Photo: Svein Er


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Table of contents Part I -‐ Old contracts in a new world

1. Streaming revenues trickle down .................................................................................. 6 2. Record labels and streaming ........................................................................................... 8 3. ...initial cold shower ......................................................................................................... 13

Part II -‐ CyberSpace and streaming

4. Thinking out loud about copyright in CyberSpace ................................................ 14 5. Wilderness crusade or adaptation? ............................................................................ 16 6. CyberSpace treaty ............................................................................................................. 18 7. The different streaming scenarios .............................................................................. 21 8. Streaming as broadcasting -‐ or vice versa? .............................................................. 23 9. Dropping in at the Ministry of Culture ...................................................................... 25

Part III -‐ Statutory regulation of streaming

10. The legal starting point ................................................................................................. 26 11. Collective licence for streaming? ............................................................................... 27 12. Mandatory Collective Administration, MCA ........................................................... 29 13. New legislative models for MCA ................................................................................. 30

Part IV -‐ Some practical consequences of the proposed legislation

14. Expanding GRAMO? ........................................................................................................ 33 15. International rights holders and streaming .......................................................... 35 16. The Fund for Performing Artists and unprotected repertoire ........................ 37 17. Columbus's egg conundrum ......................................................................................... 38

Appendices

1. Draft clauses for Mandatory Collective Administration, MCA ............................ 39 2. Current legislation ............................................................................................................ 41 3. Current regulations pursuant to the Copyright Act ............................................... 42


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Part I Old contracts in a new world

1. Streaming revenues trickle down

The cast of characters in a village church are not much different from the record industry: the parson and the record labels give the sermon, the church wardens and the bosses take the collection, while the bellringer and musicians who provide the good vibrations go home with very little.

The mock-‐tabloid spread on page 4 is not entirely accurate: no form of "Streaming Battle" is pending. But it is true that artists and musicians have become the big losers as society transitions from physical record sales to downloads and streaming. In Norway we have seen a 10-‐year decline in CD sales. A mix of private copying, web pirates and quasi-‐legal file sharing have cut sales in half -‐ but the main factor is competition from legitimate Internet services. Physical "fixations" like the CD will fade into oblivion within the year, downloads have stagnated and expectations are falling, and all hope therefore rests on the virtual shoulders of the streaming revolution.

And streaming shows much promise. Annual streaming sales by the record industry in Norway are now twice GRAMO sales. For 2013 the grand total will be around 350 million kroner, and is rising fast. Yet artists are losing out, receiving less revenue from streaming than via GRAMO. Campaigns to increase royalty are unlikely to make much difference. For this reason, GramArt has launched an investigation into possible new legislation.

According to TONO, Norway is the country in the world that is experiencing the largest increase in popularity of new streaming services. TONO's sales for the years 2010, 2011 and 2012 were

roughly 10, 20 and 60 million kroner. So composers have emerged better off than artists, and actually receive a large slice of the pie than from CD sales. Pure streaming revenues for the record industry in 2012 were below 250 million, so TONO received some 19% of the total pie of roughly 310 million. Admittedly the sums are still small, but that is another matter.

We will not make many predictions in this Brief. But no one will need otherworldly forecasting skills to see the massive restructuring that streaming will soon experience. In the first place, Google is about to launch its new streaming service, and perhaps revolutionise what is on offer from the users' point of view. What will then happen to current leaders like Spotify and WIMP? In the second, signing up to a music stream is becoming increasingly integrated into universal entertainment packages (shared with TV channels and web access). So they will almost automatically start to wash into every household. Volumes will go through the roof, but what of revenues?

In such a scenario, today's system, where artists are granted an exclusive right under the Copyright Act, seems to many to be an economic step backward, compared with the old royalty revenues from sales of CDs.


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At the same time as composers -‐ via TONO -‐ are about to secure their remuneration from the transition to online sales, it seems as if artists' exclusive right is of no practical use whatsoever, regardless of the alternative chosen.

* Either you can use the exclusive right in negotiations when signing a record contract with a label, in which case the only thing that counts is the commercial clout of the artist, and for most of us that means accepting the label's generally skimpy standard royalty clause for a share of streaming earnings.

* Or you can set up shop as your own producer (without a label), but this is

not the ideal for most artists. Those who have, find that streaming services offer such a meagre return that you might as well...

* ...Use your exclusive right to opt out of CyberSpace and net sales, although this means opting out of the future. An interesting alternative is WiMP's new services for unsigned artists:

WIMP DIY -‐ do it yourself, where self-‐producing artists hopefully will retain 70% of income. The DIY offer was launched just before this Brief was published (April 2013), so the results remain to be seen.

-‐ -‐ -‐ -‐ -‐

Session musicians with no record contract can expect especially lean times. Labels must often show that their musicians have been bought out, and therefore receive no royalty from unit sales of CDs.

But streaming is not unit production, it is performance, and in this sense the musicians have not been bought out. Through the GRAMO system, session musicians earn remuneration for all other performances of recordings in which they participate.

And in fact, these GRAMO levies can add up for musicians who played on a large number of recordings, often amounting to more than the headliners receive.

On paper, all session musicians enjoy exclusive rights for streaming, but what good does it do? Today's system still means they never get paid for such performances.

The point of this analysis is to launch new models for streaming of recorded music and make sure that artists and musicians receive their fair share of revenues. Hopefully the music industry will also spark up an interest for such models.

No rich pickings from streaming :-‐( Photo: Lars Eivind Bones, Dagbladet


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Good-‐bye royalty? 2. Record labels and streaming

Record companies arose as cousins of the book publishers. The basis tenet was that professional businesses were required to print books or press records and sell the physical products. And since music by its nature also needs to be recorded in a creative manner, the labels also took on responsibility for the artistic aspect.

This is the main reason that record companies own the (original) copyright, whereas book publishers -‐ who only provide the typesetting of the creative work -‐ do not, having to acquire such rights from the author.

With full control of the physical product and sales process, labels were naturally able to firmly grasp the cash stream, so that remuneration to composers and musicians were both fed through the labels. By contrast, labels have no role to play for artists when it comes to broadcast media. Here, GRAMO receives a collective musician's levy from the

radio station on behalf of the artists, without going through the label. The role of the labels in broadcasting is reduced to leveraging their artists onto the pop music hit lists and securing A-‐List celebrity status on the talk-‐show circuit.

From a legal point of view, broadcasts and public performance in bars, restaurants, hotels, shopping malls and fitness studios are similar. Here too, artists and composers receive a direct reward through collective deals. Now a third sector of public performance is growing very quickly: streaming. Composers were early to recognise the trend and demanded remuneration directly from the content providers -‐ albeit the labels wanted the money to pass through them. The artists are the only rightholders left stranded in the prehistoric model.

The flow chart for collection of levies looks like this:

Type of use Composers Artists Labels Physical record sales Label Label Label Broadcast performance TONO GRAMO GRAMO Public performance TONO GRAMO GRAMO Streaming performance TONO Label Label

The obvious question is therefore: Why should artists' streaming fees be channelled through the record label? Is this simply a relic of a long-‐vanished era? It is not an easy detour. It seems old fashioned and backward. And it gives rise to a piece of distribution trickery that weighs the pie disproportionately in favour of the producer, leaving the artist short.

Probably nobody would have invented such a scheme had we come to CyberSpace with a blank sheet of paper, and we had never inherited the convoluted ways of the physical record.

Nobody dreams of regulating the GRAMO levy in a recording contract -‐ why do so for on-‐demand streaming?


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Public performance of music needs to be regulated outside the confines of the record contract. Records have no place in CyberSpace -‐ and nor do the ancient record contracts. An argument can be made for contracts to regulate downloads, since both CD sales and downloads are a form of reproduction. But historically there are three different formats: physical records like CDs, digital downloads, and virtual streams (not a unit).

Record directors are quite content to get a new car every year, but they will stick to the good (?) old record contracts forever... even into CyberSpace. -‐ Who wants to join them?

This certainly does not mean that the role of record labels has expired, they only have to reinvent themselves and change their name, and are busy doing so. But the labels still argue that the creativity and dynamics of the record industry are joined at the hip to contract negotiations -‐ as if clever wording of a contract was a magic formula for commercial success.

A side effect is that the royalty rate for streaming varies from one artist to the next. But payment from WIMP and Spotify does not vary, nor does the public pay more for some artists than for others.

So why should popular artists receive a higher fee per-‐stream than others? They already make more due to selling a greater number of streams. And since the pie has a finite size, higher rates for one artist inevitably mean less for others.

Perhaps the future is brightest for labels that devote most of their creativity to the recording process (rather than the contract wording)? Recording will always mean some form of recording contract between the label and the artist. They may be carefully worded, but should not try to regulate the fee for performance of the fixation.

The record industry thus faces the following modern challenge:

Artists should not earn royalty on streaming performances! Royalty belongs in an age of physical records and record contracts.

An explanation is in order: Royalty is not taken from the label's own pocket to give to the artist, it is the label's

payment for using and basing a business on the exclusive right, which is vested in the artist by law.

Recording contr

act -‐ Hurray!

-‐ or is it?

But, but, but.... ... but surely streaming is kind of business?

Everyone is happy for radio performances to be paid via GRAMO. But streaming is different, some will say, streaming is sale of music, unlike radio. Well, if streaming meant the transmission of individual songs paid by the unit, this might be true. But a streaming subscription is not the same as a download.

WIMP and Spotify do not sell music the way iTunes do. Like radio, they deliver a music service. Radio and streaming are media services who both pay to be allowed to perform the

recordings, and who at the other end earn revenue from the customer's subscription, licence fee, or through advertising (or some combination of same, like Spotify). Yes indeed, they run

a business performing music, but streaming is no more the sale of music than is commercial radio.

And how long will it take before streaming services also offer spoken content? Streaming and radio are fast merging in functionality and editorial content – and, lest we forget -‐ both are regarded as performance under the Norwegian law.

(More in Chapter 8). ... but streaming is not just business – it is going to be the CORE business!

Streaming is becoming the core business of record labels, some will protest. So what?

Labels are free to administer their rights as they see fit. But why interfere with the rights of others?

Artists and labels have equal rights under the law of copyright. There is nothing self-‐evident about the labels acquiring their artists' rights just because streaming is their core business.

Or perhaps they are not content to build a core business on their own rights, but also yearn to exploit the rights of others assigned by the recording contract?

In both the book industry and record industry, we see an ugly tendency to regulate the future as if it were the past. The Norwegian idea of a Book Act for CyberSpace is the most hopeless example. It would be better if people could apply their energies to innovative ideas and being creative.

Management of copyright is open to many options. Just look at the rights holders. In the print world, authors clasp at the standard publishing house model of contract and royalty (but for how long?). Conversely, music rights holders have opted to retain their copyright and collect it collectively, through TONO.

Artists now face the same choices.


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Incidentally, the labels' core business has been pleasantly rationalised thanks to streaming. When records needed to be pressed, labels assisted in many ways in addition to the studio recording and financial investment.

With the transition to streaming, the artists' role is naturally unchanged, but labels have less work to do, since many of their functions are fading away. So the role of the labels is more modest, as we have tried to illustrate below. Key: Record labels' new business, Investment, A&R/ Recording, Hype (Promotion/ Marketing), Packaging/ Cover, Pressing/ Stocks, Sales/ Discounts, and Distribution.

The banking function (financing) will continue, but promotion and marketing (hype), may become more important than it was with physical sales. The actual studio recording is something artists and managers will increasingly be responsible for, while other functions from the days of physical fixations will disappear.

In a streaming world, label sales directors have a lot of the work done for them, to put it mildly, and their favourite exercise -‐ discount deals -‐ is fading into insignificance. They avoid the hassle of manufacture, warehousing and distribution. They avoid the burden of unfashionable back catalogues, and the unpleasant sting of customer returns. It is not surprising that the major labels have already increased their bottom line compared with the situation just five years ago.

But we must remember that this bottom line has improved because the royalty base for CDs has been redefined. It used to include the authors fee, but this is now kept apart. As the base shrinks, then mathematically a nominal royalty of 12% for streaming is no more than 9.5% by the old measure. To put it differently: if the labels increase their streaming royalty to 15%, they are simply maintaining the 12% level for physical sales.

A key issue in this Brief is not to engage in a campaign for higher royalty, but for repeal, which naturally enough will spark squeals of protest from the industry.

Plateselskapenes nye business

Distribusjon


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MORE ... but what are labels and artists going to strike deals about, if streaming is kept off the contract?

Both record stores and CD factories have asked themselves this uncomfortable question, how can the shop remain afloat when streaming prevails? Equally, label bosses have asked how they can preserve their record contracts, if remuneration for streaming is kept off-‐limits? After all, streaming will soon account for 80-‐90% of sales. Preserve?!! The record industry was never about preserving structures, it was always about innovation. Preservation is for museum curators.

Furthermore, streaming is not 90% of the total music market. We all know that producers, artists and directors need each other, and must negotiate contracts for how to divide up the WHOLE pie -‐ including the live market.

The banking role of the producer will never

disappear regardless. Labels will always be finding new ways to engage in profitable financing, and the record industry will be reborn as the music industry.

For spring is here: the green shoots of CyberSpace are sprouting up, despite a few north-‐facing hollows that still retain the snow.

...In Oslo the Universal gardens are facing south, where celebrated and generous parties will no doubt continue, whatever conduit is used to pluck music from CyberSpace.

This analysis identifies a new conduit, where streaming is collectively regulated. Discussion is found in Part III of this Brief (whence readers with little stomach for detail can move directly, avoiding the heavy-‐going pages from 14 to 27).

Before we present the new map, we should naturally make a few comments about the terrain in which the music business and its artists should be operating. Streaming is a newborn baby, yet it has already overturned many of our accustomed ideas about earnings and pie distribution of recorded music. Musicians, artists and small labels alike find their bottom lines shrinking compared with the days of CD sales. Despite a larger volume (number of streams), the monetary value is often negligible.

-‐ -‐ -‐

The leap from CDs to streaming is quite simply a step too far for most players. Transitioning issues are insurmountable, and anyone hoping that this analysis will make

these disappear, is likely to face an initial cold shower...

... museum curator ? ? Photo: Stella Pictures


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3. ...initial cold shower (resulting in a warm, tingly feeling afterwards) There are at least three reasons for these transitional issues:

The first is the consumer stream explosion. When users no longer pay per stream, then of course the market becomes saturated. So consumption, measured in number of streams, explodes, while sales increase only gradually. With record sales most sales came from new releases. With streaming, sales are spread over many more recordings, including a large portion of back catalogue. In short, there are more recordings in play, but less return on each.

The second is the market situation. Only when all Norwegian households pay a monthly due of 100 kroner ($ 17), will total sales approach the golden age of record sales around the millennium -‐ when they were 2 billion annually. We may well get there eventually, but it will take a few years.

And not much can be done to alter public preferences either. There has proven to be a poor correspondence between the songs the public stream, and the records they bought. It has always been the case that some records are spun more than others. The repertoire bought for whatever reason on CD, and which sits on a cosy shelf in Norwegian homes, produces little revenue from online sales.

Streaming services are an accurate indicator that reflects what people are listening to. Must we accept that soft

entertainment, typically generic international song compilations, is the winner as we move into streaming? The director of Universal reportedly told Aftenposten on 8 April 2013 that his back-‐catalogue now accounts for 50% of all streaming, no less.

The losers may be local recordings that were vigorously hyped whenever a CD was launched. Labels that were accustomed to having their own rack in the high street stores, and could launch every other record via national radio, will quickly submerge in the online cacophony. The result is that major catalogues win out, smaller labels lose out.

Some shrug their shoulders and empathise with John Lennon: There's nothing for me here, so I will disappear. Yet that solves as few problems as the idea to legally regulate some redistribution of the fee -‐ for example a double fee for new recordings. Such a scheme is deep within the realms of culture policy.

No indeed, these market issues are something that have to be tolerated -‐ the terrain is hilly and bumpy. But things are unlikely to get any worse, and legislative changes may offer new, better framing. And if we are going to mix in a little culture policy, the final section of this Brief (Chapters 16-‐17) offers a navigable course that has gone almost unmentioned.

Part II CyberSpace and streaming

(Mostly for those with a special interest, those pressed for time should jump to page 28) A new world or just a conduit? 4. Some ideas about copyright in CyberSpace

The basic issue is how to organise and regulate online sales. Digital online is hailed by some as a technological wonder on a par with the invention of the tape-‐to-‐tape reel or CD disc. Such a view is often combined with the idea that CyberSpace is just a conduit through which content flows -‐ much like a souped up telephone wire.

Many copyright pundits tend toward

that idea, and since one of their key articles of faith is that copyright both can and should be designed to be "technology-‐neutral", the result is endless attempts to squeeze the ancient legislation from the world of physical recordings into the world of online. There have been many fanciful results, such as the notion that caching is a form of reproduction.

-‐ -‐ -‐

If we try to draw a realistic map of the hunting grounds of copyright, the central issue is how to view the new world. The Internet connection is not primarily a new packaging of copyrighted items or new technology. The Internet has created a new world called CyberSpace, and we have all discovered that special expectations rule in this world -‐ often different from those in the old physical existence. Finding examples is not a problem:

The Law of the Cyber Jungle number one is that absolutely everything must be accessible. This modern expectation of total access is growing day by day, albeit not necessarily combined with an expectation of it all being free of charge. Yet there is a law that says that Internet content is expected to be cheap.

The second law of expectations is that users may freely adapt, cut and paste the downloaded content. Of course this is because technology makes it possible in countless new ways, and the freedom to edit and adapt has become a new self-‐evident right. Without a licence system the bounds of private, unpaid use are liable to be shattered,2...not least when 2 The tiresome job of getting clearance for the photos used in this Brief is a good illustration of

3D printing soon reaches its popular break-‐through point.

Close to this idea is the expectation to freely share. The old physical-‐world model of private collections makes no sense in CyberSpace, and the popularity of more-‐or-‐less free file sharing of content is poised to explode in a year or two. But free does not necessarily mean unpaid, as new monitoring technologies like Scan & Match offer hope of a fee for pirate files which can be whitewashed through such matching

CyberSpace also breaks with another central axiom of copyright, namely the

why many simply give up and stop worrying about permission.


15

requirement for so-‐called prior consent – meaning getting permission up-‐front. On the contrary, we seem to be being forced into a position where what we might call post consent has to be accepted.

A clear demonstration is YouTube where (in combination with Facebook), every web user simply assumes there will be no criminal penalty for uploading content, so that others can freely download the content worldwide. From a traditional copyright standpoint, this is regular piracy. But YouTube has no problem making the scheme float, thanks to its "offer" to copyright holders that they can click to remove the content (provided of course that they discover it). Another element is the cross-‐border nature of CyberSpace. These examples of special expectations in CyberSpace illustrate the point that

the Internet is more than just a conduit, it is but the doorway to a new world -‐ a world where copyright must carve out a new place subject to these entirely new rules.

So any attempt to create a set of "technology-‐neutral" copyright laws that are smart enough to simultaneously target both the physical world and CyberSpace is unlikely to succeed in the long term.

The Internet needs no special statutes, but CyberSpace does. We can anticipate the need to gradually introduce a set of new rules -‐ rules that will challenge and sometimes breach traditional copyright law from the physical world and previous century. This Brief does not allow for an examination of such broad new rules, and is only trying to identify stopgap measures for streaming.


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Stubborn or flexible: 5. Wilderness crusade or adaptation?

The copyright pundits can either bravely take up the fight against this challenge, by allowing the copyright law to duke it out with the law of the jungle. Or we can avoid a confrontation, and adapt the copyright law to smartly and flexibly work in the world of CyberSpace.

When we see strategies that focus on anti-‐piracy, stricter enforcement, page blocking and exclusion from the web, as exemplified by the IFPI's graduated response model, these are variations on the duke it out theme. Realisation is growing that this focus neither brings in the revenues, nor does it secure the future of copyright.

It is an unproductive route, but the alternative -‐ adaptation -‐ also looks pretty unappetising, since ultimately it challenges the very core of traditional, physical-‐world copyright, namely the exclusive right to the work or performance.

Full adaptation to the inner logic of CyberSpace would mean rights holders sacrifice their exclusive right (controlling position) in favour of

securing remuneration. Admittedly one could seek a more nuanced position, where partial control is retained, but it is impossible to avoid making the crucial choice: duke it out or adapt.

Adaption may be painful, but a full-‐blown fight can be fatal. In a phrase:

Exclusive copyright is dying, long live collective management!

The church in the middle ages held that the earth was the centre of the firmament, which the stars and planets circulated about. Copyright loyalists should avoid falling into the same trap. Because professional works and performances are not the main bulk of content offered in CyberSpace. They must live in a soup of amateurism and do-‐it-‐yourself, as any visit to YouTube will illustrate in abundance. Not to mention the deprofessionalization of photographic images.

And anyone who believes the rules about "the criterion of originality" can be used to distinguish the wheat from the chaff, is asking for a job more difficult than Sisyphus.

It even may be that copyrighted materials are not the most important value element in the stream of offerings from CyberSpace to users. The bitter reality is that organization; packaging, technology, promotion and business solutions add greater value -‐ at least within our capitalist

economy that completely dominates the world.

To be in the game in CyberSpace you have to accept the cost, or stay out. Agitation to promote a "rebalancing" of copyright and market distribution is thus illusory, and can at best only lead the copyright crusaders on a long march in the wilderness.

More realistically, due to the law of jungle expectations, and the subservient position of copyright in the cyber world, the wise move is to adapt, and protect one's interests given the circumstances. So there is no point in assuming the role of copyright crusader, and insisting that all physical copyright rules should be transplanted into the virtual sphere.


17

For so many reasons copyright is very much a conservative phenomenon, firstly because rights owners have so much to defend, and also so much to lose. So it is typical that copyrightists are facing new challenges on the defensive, instead of taking a proactive approach based on new ideas.

The label managers are well stocked with worried executives who have a deep anxiety for free discussion about copyright. And then there are the hoards of experts whose profession it is to find a traditional way through the complexity of copyright. The third point is that the whole system is tied up and tethered by international conventions and treaties, whose immutable status is so revered that their clauses are more permanent than the Bible itself.

To some extent, copyright law will be perceived as a roadblock in the way of users' free exploitation of CyberSpace, as indeed it is -‐ taking account of others is always demanding. But the copyright purists should listen to such outcries,

and do their bit to amend the law to be more flexible.

When users complain that ”when confronted with the current rights and management regimes we haven't the

resources to clear desired content, so we just give up the idea” (Norwegian Digital Committee Recommendation, NOU 2013:2), users must be taken seriously, and not dismissed as only interested in prices.

Albeit the really chunky food for thought is whether copyright is a barrier, not just to users, but also to rights holders and their freedom to manoeuvre and manage

their intellectual property in the cyber world. Internationally the WPPT/WCT treaties regulate these challenges in the first place.

To Bis or not to Bis ?


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Already out-‐dated: 6. CyberSpace treaty

WIPO Performances and Phonograms Treaty (WPPT)

(Adopted in Geneva on 20 December 1996)

Sadly the "making-‐available-‐on-‐demand" services were regulated by law back in the 1990s, when international copyright advocates attempted for once to pre-‐empt the new technology, resulting in the WIPO Performances and Phonograms Treaty, for performers and producers, and the WIPO Copyright Treaty, for copyright holders. When these two treaties were written, streaming was hardly born, and it was assumed that distribution of music performances over CyberSpace would be based on downloading of files. A new copyright was established for downloads:

”..the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them”.

This is what we refer to as the on-‐demand right in this paper. We must digress to explain the clear difference between copying and transmission (performing). The Norwegian Copyright Act in NCA § 2 clearly states that: ”The transferring of a work to any device by which it can be reproduced shall also be considered a production of copies” – which is precisely the type of transmission that occurs by download.

In 2005 adjustments were made to the law to come into line with WPPT, hereunder this specification in NCA § 2: ”As public performance is also included broadcasting or other transmission by wire or wireless means to the public, hereunder when the work is made available in such a way that the individual can choose the time and place of access to the work."

Under this rule, all making available (in broad sense) of copyrighted material in digital networks was classified as performance. The ramifications are sometimes quirky, or as Professor Rognstad declared: ”the objection that not all such actions fit

with the linguist's understanding of the term performance... thus found little resonance with Norwegian lawmakers”.

The concept of performance thus also embraces download services. So Norway ended up with legislation where down-‐loading was not simply regulated like copying/reproduction, but also like performance. NCA § 2 regulates the rights of the author, albeit the same double protection was established for performers and labels in NCA §§ 42 and 45.

It is worth reflecting that rights holders fought for this on-‐demand performance right in the context of download. They already had full control of such services by virtue of the copying that necessarily took place -‐ the copying that the service provider has an undoubted direct responsibility for (not just aiding and abetting). Legal protections may not have become significantly stronger under this new exclusive right, but certainly more complex.

Although these performances now are


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becoming totally dominated by streaming, the same rights apply.

What is not crystal clear, is just which

steps making available comprises. From a technical point of view the availability steps are:

...the four steps of streaming (and download):

1. Uploading of a digital copy to an Internet server

(with interactive interface) This is the vital technology step that represents the copying of a master original for performance, but is not part of the making-‐available sequence.

2. Making available of the master original This is the publication of the web address of the file, usually via a clickable link, which immediately starts transmission of the file to the user. Thus the file is interactively available on demand, and this is defined as performance.

3. File transmission from the vendor to the user's gadget Although this is a silent transmission of a data file, it counts as performance in judicial terms. Certainly the music is passed to the user.

4. File receipt and performance (or reproduction) by user This performance is not part of the making-‐available sequence, but is where the value to the user lies – either as a private or a public performance.

TONO separates the different steps in its web licence, describing uploads as ”(the) right to reproduce Music Works on servers”. So step 1 should not affect the performance right involved in making available. The same goes for step 4, which TONO appropriately defines: ”Down-‐loading shall mean action allowing an end-‐user to receive a data file for the purpose of reproducing a copy of a music work in a storage unit or units.” (my underline).

A relevant question is whether uploads in step 1 are part of the right to make available. Administrators have quite a problem. Under Norwegian law, the producer's exclusive right to fixate originals covers all recordings (within the term of protection), regardless of country of origin or country of recording. Yet Norwegian law offers a different, less expansive protection to

producers for making available. Which extension of rules should apply -‐ surely not both? Uploads live their own life, and must be regulated like reproduction.

For on-‐demand services it is therefore steps 2 and 3, which constitute the making available act3, and if we are to understand the law correctly, each of these steps represents a performance, then this will have repercussions for services which cross national boundaries -‐ as for example a Swedish service which transmits songs to Norwegian users.

3 The treaty wording suggests only step 2 is subject to the making available right, but in retrospect experts usually assume that Article 3 is also subject, see Silke v. Lewinski, International Copyright Law and Policy p. 457: "The act of making available is understood also to cover the subsequent acts of individual access and transmission, if they take place".


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It is also worth noting that step 2 seems to be more important in theory than in money terms. Certainly it is the case that web-‐based music services are reconciled in money terms with the rights holder according to the number of streams or downloads (step 3).

This fits well with the best traditions of the music world, which calculates remuneration according to actual use. Equally, artists and composers are not paid for the number of records pressed, only for those sold.

Making available of music by simply storing a recording on a download server, is therefore a sort of exploitation that does not occasion any financial settlement.

This is distinct from the world of books, where the (Norwegian) National Library's digital streaming project, bokhylla.no (Bookshelf), is remunerated by Kopinor equally for all books and authors who are placed on these “shelves”, regardless of the number of streams for each work.

For private users of on-‐demand services, step 4 will represent performance or copying in the private sphere.

To summarise, streaming looks like this: Technologically: By Law: 1. Upload Reproduction 2. Publish link Making Available 3. File transmission Making Available 4. File usage Performance (public

or private)

With this range of steps, claims for double payment of remuneration are highly tempting. But TONO's rates are

reasonably clear that an agreed fee is payable -‐ and we are not aware of any cases where double payment (first for upload of the master, then for user reproduction) has been charged for download services. Another matter is that the remuneration in some countries is split between the performance CMO and the mechanical rights CMO, typically 70/30.

But what is happening in Norway right now?

Performance in step 4 will be a public performance if the recipient is somewhere like a hotel, gym or similar, playing for guests or members. Licences are only available from GRAMO and TONO, and do not affect the making available right. WIMP and Spotify cannot licence their streams for public use, but do so apparently nevertheless?

So double payment is highlighted due to the subscription terms of WIMP Professional, which charges 10 times more for pro users who "offer streaming services beyond private use", and "allows the corporate market to legally use music streaming in the public sphere" (press release, 8 May). These companies must then additionally pay GRAMO fees for this public use of the stream.

Is this double payment? …GRAMO has got a legal monopoly to collect remune-‐ration on behalf of performers and producers for use of their recordings in the public sphere.

Breakneck development: 7. The different streaming scenarios

As already highlighted, streaming is a technology rather than a legal concept. But when streaming became mainstream -‐ 15 years after the WPPT -‐ there was little doubt that the service was covered in purely legal terms by the wording of the treaty. Streaming and downloading thus had to be regulated as conjoined twins under the same legal regime, despite the very different ways the recordings were enjoyed. For while downloads are essentially a means to make a copy of a fixation -‐ a digital variation on the physical CD -‐ streaming is by nature flighty and unphysical, and can only be regulated as a form of performance.

The treaty provisions about the making available rights are therefore far more relevant for streaming than for download.

Bear in mind that the object of protection under the law is the specific recording (specific music track), so that even when streaming a bulk selection, it is each individual track that is protected by law. WIPO defines the key test on its webpage as ”whether individual members of the public (not the public at large) can determine when and where they want to access a work or phonogram” (my underline).

It must also be emphasised that the right to make available does not embrace all on-‐demand services, only those where the performance "is done in such a way that the individual can choose the time and place of access to the fixation" (NCA 42).

The challenges of regulating this type of service are considerable. Despite this still being the early days of streaming, developments have been breath taking in just a few years. From the onset until today, developments can be summarised in roughly six scenarios.

Scenario 1: Unalterable stream. Real streaming is a performance online that is initiated and chosen by the provider. Users can neither start nor alter the stream -‐ simply connect to it. The performance is the same for all users. Without doubt, this stream is a type of performance that must be regulated in NCA § 45b, first para, and has nothing to do with either WPPT or the exclusive right in NCA § 42.

Performance as described in the next five scenarios should really have a different name than streaming, but that is not what has happened.


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Scenario 2: Specific tracks stream. Streaming on-‐demand was started as a parallel to download services like iTunes, where it was possible to choose tracks at given times and places. Such a service is quite accurately described by WPPT, and will also cover compilations of specific tracks, which are published in a cluster, like an album.

Yet there is a challenge when streaming is less and less the booking of specific tracks, booked one at a time. WIMP and Spotify feature ready-‐packaged streams of entire genres, entire catalogues and long playlists -‐ like other people's playlists -‐ in the sense that users do not choose each and every song when they first click on the link.

Scenario 3: Ready-‐made playlists. A typical example is WiMP's Best of 2012 containing 121 songs. Having clicked on the link, users can admittedly click forward to each track in the package, which is a sort of opportunity to handpick selected tracks from the list, but who could be bothered?

But whether streaming is played in a fitness studio or at a party, typically the playlist will be started without anyone choosing the individual tracks -‐ and certainly the user has not chosen the time at which each song is streamed. Of course one can argue that what happens in practice is not the point, and that the theoretical opportunity is all that matters in legal circles. But is there any guarantee that such a view will stand the test of time in the jungle of CyberSpace?

Scenario 4: The situation is further complicated by the option often offered by providers whereby users can access playlists offline. This presupposes a more-‐or-‐less permanent fixation of the songs on the user's gadget, and illustrates the point that streaming and downloading can morph into each other, which is an argument why common regulation of the two should be upheld -‐ or should it?


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Near-‐on-‐demand 8. Streaming as broadcasting -‐ or vice versa?

Let us remind ourselves that the WPPT definition assumes that each song is streamed to the users ”at a time individually chosen by them”, but the options are tending to move away from a situation where individual songs are booked and transmitted at a freely chosen time and place. Streaming is

becoming less and less like the WPPT definition of a making available service, and more and more like broadcasting, or individual genre-‐based radio. Streaming providers are also calling these services "radio channels".

Scenario 5: Radio-‐streaming. A pertinent example is WIMP Radio where users, with a single click, can initiate a stream of almost 100 songs lasting many hours -‐ with the music starting by the initial click. Streaming starts before the user can choose a single track. True, users who feel compelled to do so can click to see the entire list, read it and delete any recordings they may not like, or alter the sequence. But how many users do so in practice?

Information lists of upcoming songs are also available on all web radios, as will be discussed further below.

Scenario 6: Genre stations. Yet another step away from WPPT are services like Spotifys Genre Stations, channels that resemble radio with a specific genre-‐weighted repertoire -‐ all preselected by the provider. Here too, the music starts with the first click, and it is not possible to click forward to read what is in the stream, or choose freely from it. The only option is to skip forward to the next tune. Spotify has dozens of these stations, all with unlimited playtime. The question must be asked -‐ is this the same as "to choose the time and place of access to the fixation"?

A further complication is that Internet radio – while streaming is becoming more like broadcasting – is becoming more like streaming. A good example is Britain's UK Radioplayer, which is now being launched in Norwegian. Without explaining the detail, one of the points is that listeners use a new search engine to find their favourite artists, then generate a list of when selected songs by that artist will be played by the individual stations.

With such a service, users can easily switch between different radio channels. This gives listeners better information about the playing time of the performance of certain songs than what

is available by streaming. In this way streaming and radio are approaching each other from opposite sides.

There is no doubt that Internet radio will be counted as broadcasting in Norway, and regulated accordingly (NCA § 45b). But what about the legal aspects when the radio apparatus has a pause button, allowing the transmission to be cached, and restarted later on? The public will no longer be listening in real time, and is close to entering the on-‐demand sphere. Should exclusive rights affect the listener who pushes the pause button, but not listeners who do not? In other words: A grey area.


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Another service is streaming of real radio-‐on-‐demand, where parts of the radio's offerings must be regulated as an exclusive right outside GRAMO. Concert recordings are now being offered as radio-‐on-‐demand, while WIMP is offering similar recordings as stream-‐on-‐demand. From both a factual and a judicial viewpoint, this is exactly the same activity.

It is worth noting that WIPO's webpages describe the making available right as follows ”…not only ‘music on demand’ services but also all other services with a like effect (e.g. digital transmissions allowing for the identification and recording of specific music tracks) should be covered by this right”. If so,

Radioplayer should be regulated according to the exclusive rights clause in NCA § 42, but WIPO's very broad definition here is unlikely to find support.

The legal verdict on streaming is likely to depend on the actual content of the service. Many of today's streaming products fall within the WPPT and NCA definition of on-‐demand services, while other services perhaps do not. This legal ambiguity is a good reason for introducing compulsory regulation of CyberSpace.

Each individual service should require separate clearance and licencing, as TONO in fact is now doing.

The figure shows how different scenarios for radio and streaming are getting closer to each other, and sometimes crossing the line between the Mandatory Licence in NCA § 45 b and Exclusive Right in NCA § 42. Even under current legislation the argument can therefore be made that services where users neither choose the specific recording nor the time of streaming, should be regulated under the GRAMO clause -‐ for both performers and producers. GRAMO could, under today's legislation, put forward a claim for remuneration for some of today's streaming services.

However, the management of copyright is about more than what can be done, it is also about what it is wise to do. 4

4 Public performance (or private?!) at dental surgeries and hire cars are cases in point.

Radio Stream-‐on-‐demand

Mandatory Licence under NCA § 45 b Exclusive Right under NCA § 42


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A taste of the political process 9. Dropping in at the Ministry of Culture

Confusing? Yes, indeed -‐ for all concerned -‐ perhaps even for the legal beagles of copyright law.

When the law was passed in 2005, the Ministry of Culture conceded in its White Paper that a total clean-‐out of the law was required, promising that at some point in the future, the work to perform a root-‐and-‐branch audit of the Copyright Act and its structure would be prioritised.

This prioritisation has been noticeable by its absence, for while cultural promises were being fulfilled at high speed both here and there, copyright suffered eight lean years under the Labour party administration's various ministers of culture.

It remains to be seen if the new Ministry can put things right, as those before have failed to do. GramArt's mission must therefore be to advocate a minor adjustment to the current legislation. Luckily a suitable white paper is already in the pipeline. Norway is facing revisions due to the extension of the term of protection. Under the EEA, Norway is bound to comply, and a new bill is anticipated in

spring 2014. We should be able to add the amendment proposal set out below to the process, since the very same clauses § 42 and § 45 will need to be revised.

...And we should be able to succeed whatever the colour of the government.


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Part III Collective management of streaming

Tied and bound: 10. The legal starting point

WPPT introduces an obligatory exclusive right, which most likely will get in the way of the type of flexible solutions that are described below. The Treaty itself thus creates more problems than it solves, but maybe not in Norway? Here artists should perhaps count their blessings that Norway has not yet ratified WPPT, and we are not yet bound to harmonise our copyright laws with the Treaty.

The Treaty is already out of date, and is unable to properly capture all the new streaming services. Ultimately one could envisage a revision of the Treaty, for example so that streaming was included in Article 15 -‐ Right to Remuneration for Broadcasting and Communication to the Public, which would regulate streaming on a par with broadcasting. But this is not going to happen for many years yet. To sum up then, we can say that the

WPPT is not worth fighting for, certainly not for artists.

And the Treaty will inevitably apply in Norway anyway, via a back channel. The European Union has ratified WPPT, which binds Norway through the EEA mechanism. So it is difficult to avoid the exclusive rights clause. These provisions have been included in the Norwegian Copyright Act since 2005. Indeed, Norway has surpassed WPPT, by allowing artists a general exclusive right for making their music recordings available. However an extensive exception is made for public performance of such recordings, except from making available on-‐demand services.

Article 42 states that; a performing artist has the exclusive right to dispose of his performance of a work by….a)…, b)…..

NCA § 42

c) making the performance or a fixation of the performance available to the public

For the public performance of sound fixations the provisions in section 45b nonetheless apply

unless the performance is done in such a way that the individual can choose the time and place of access to the fixation

This may not be the most elegant provision of European legislation, but -‐ thanks to the first exception -‐ all performances are regulated under NCA § 45b, the so-‐called GRAMO clause,

except from streaming and downloading “done in such a way that the individual can choose the time and place of access to the fixation”. Please note that the small word “can” presumably means that

Exception

Exception from the exception

Exclusive right


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the clause covers all on-‐demand streaming.

The point that some aspects of streaming are just as much at home within the GRAMO sphere, is not possible to exploit in any positive way presently. The situation would be toxic if there were frequent arguments about all new streaming services, to sort out if one or the other should be subject to article 42 or § 45b.

A better option must be accepting that the map -‐ the Copyright Act -‐ does not

really fit the terrain; the new streaming services.

Even more, a broad understanding should emerge that the law needs adjusting in a way that the exclusive right is softened up through some form of collective administration.

In this connection the wording of the NCA should be tightened up, so that the unwieldy formula, whereby making available is an exception to the exception, is straightened out.

For the connoisseur: 11. Collective licencing?

The question becomes, how is it possible to collectively regulate the exclusive right to streaming? Through NCA § 45 a corresponding rule has been added for the producers.

Exclusive rights are tailor-‐made for individual management, although the rather disappointing results for artists are discussed early in this Brief.

Norway's international obligations allow few models that would curtail these exclusive rights:

* The simplest solution would be that streaming was also administered under the Compulsory Licence in NCA § 45b. Artists know it well from the GRAMO sphere, and from the artists' point of view, it has been an unmitigated success, both organisationally and in terms of remuneration.

Evaluation: Any compulsory legal licence however is contradicting the exclusive right, and clearly contravenes Norway's treaty obligations. The model is not therefore feasible for streaming that is regulated under the exclusive right in NCA § 42. As will be understood from Chapter 14 below, it may nonetheless be feasible to entrust the practical administration of this field to GRAMO, in the shape of a new sector.

Collective management -‐ natural and effective

Photo: Svein Erik Dahl

*The law offers several alternatives of Collective Licence, and the first of these is the Classical Collective Licencing, that regulates matters between TONO and broadcasters. Here the exclusive right is retained, and the model finds support in the Bern Convention, so that Norway would be free to introduce such a model. The precondition would be that the right to opt out is written into law.

Evaluation: The model is not based on mandatory collective management, and cannot prevent individual artists from exercising their rights alone or through a record label. It does presuppose endorsement by license holders to the same degree as in TONO -‐ including the international repertoire -‐ and is therefore unrealistic. Incidentally, non-‐representation is a growing failing of TONO, since major music publishers are more frequently carving out their repertoire from collective administration.

* A solution using Collective Licencing without statutory opt-‐out could allow the right of use in this field to be freely administered by a license holder in person (or someone appointed by the license holder to manage the rights). Though the most popular form of collective license, this model will hardly pass the so-‐called "three-‐step test".

Evaluation: Since streaming will be the main use for the recordings, it is very doubtful that such a license would pass the three-‐step test, and the model is therefore unlikely to be relevant.

* The so-‐called Nordic Extended Collective Licencing system implies provisions in the law giving an extended effect to the clauses in a collective agreement in specific areas of the copyright/related rights field. The extended effect applies to right-‐owners who are not members of the contracting organization, and combines a collective licence with a clause saying that the rights in the area of use can only be administrated by the organization that has been approved to enter into the contract. This means that outsiders cannot, of their own volition, sign up for a usage contract. It is this arrangement that, according to NCA § 34, applies to NORWACO´s management of simultaneous retransmission of broadcasting programs.

Evaluation: This model would work well for music performers, and a Collective Licence is also always in the provider's interest, since providers can access the full repertoire through a collective deal with a representative management organisation. Obligations to the EU and EEA regulations make it rather doubtful if it is possible to establish such an exception for the exclusive streaming right. However it might be possible to push the limits slightly if there is the political will and courage. The Preamble 18 to the EU InfoSoc Directive certainly opens the door for (“is without prejudice to”) a general collective licence. Yet there is a clear condition that the administration organization is representative of the rights holders being streamed (including international ones) -‐ which may cause some consternation.5 So although we do not recommend this model, we are very much in two minds.

5 For NORWACO too, this is becoming increasingly complex, which shows that such a model is vulnerable when seriously challenged.

12. Mandatory Collective Management of Exclusive rights, “MCM” (..Not the Japanese punk-‐metal band) Appreciating that collective licencing may conflict with exclusive rights legislation; there may be an appropriate alternative for streaming. One way to describe it is Mandatory Collective Management, MCM, or Obligatory Collective administration (Tvungen Kollektiv Forvaltning, in Norwegian).

This alternative does not challenge the exclusive right. Instead of introducing collective licencing, it is based on exclusive rights holders entrusting the management to an agency.

Awaiting an official name for such an agency, we will call it The Collective.

An MCM model could be based on the following schematic:

Exclusive rights are retained, but the rights-‐owners can present their claims only through a collecting society, being granted an exclusive privilege to manage the rights,

The Collective grants permission for the making-‐available performance, collects the remuneration. The amount is freely negotiated, or set by a Commission, as laid down in NCA § 35, first paragraph.

The Collective represents only those licensors (from GramArt or others) who entrust the management in this field to The Collective.

There is no opportunity for rights holders who opt to stay outside The Collective to licence or to collect for the use of their recordings themselves (not even at the same terms as practiced by The Collective).

The right to obtain remuneration is established as non-‐transferrable.

Licensors are ensured a reasonable level of influence on management issues.

Rules are established so that individual licensors are retaining their right to file a prohibition against such use (streaming) of their recordings.

GramArt has recently commissioned a special Expert Assessment of whether such a model contravenes Norway's international obligations. The conclusion is that the model would be internationally acceptable, since it does not challenge the exclusive right. But there is always some risk that this conclusion may be contested.

Evaluation: The upside of such a model is that artists can leave the straightjacket of royalty contracts with the labels, and act collectively towards commercial users. This should give

performers a standing equal to the producers, both in negotiations, and also perhaps regarding the size of the remuneration.

Distribution of streaming revenues would be professional, in the same way as current GRAMO reconciliation for broadcasting. And the distribution would embrace everyone, including session musicians. It would further bolster GRAMO if The Collective were established as part of it.

The downside would be that The Collective does not automatically


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represent all performers (as GRAMO does for broadcasting). The exclusive right prevent this, and the greatest challenge will be to bring international artists into the fold.

Past record contracts can also represent a problem during a transitional period, but with a new non-‐transfer rule, this would ultimately slot into place. It is doubtful if the labels would dare to

challenge The Collective by citing old contracts if artists wish to join up.

Although the exclusive rights may be in place, it is also conceivable that a situation could develop where streaming is in fact handled by GRAMO. A further advantage would be achieved if the Columbus´s Egg presented at the end of this Brief is finally hatched.

13. New legislative models for MCM

A. Delimitation. A new MCM model requires changes to NCA § 42 and perhaps also § 45b (if producers are included). It might be beneficial to limit the MCM model to streaming, but technologies flow into each other, as shown in Scenario 4 with off-‐line access to streaming.

So perhaps we must live with a goulash of downloads and streaming in the same legal stewing pot?

The suggestion is therefore to retain the legislation whereby downloads and streaming (on-‐demand) are regulated as an exclusive right under NCA §§ 42 and 45.

When discussing streaming below, we therefore include downloads. It may also be necessary to adjust the Revenue Commission clause in NCA § 35.

Alternatively, streaming could be regulated under NCA § 45b, making it an all-‐inclusive performance clause, both for streaming and broadcasting and other public performance. Although this might be feasible, lawmakers might find it technically challenging, and for that reason it is not recommended. B. Technical fixations It ought to be possible to include a clause whereby the licence from the Collective includes the technically necessary fixations, including the single source copy (as for modern broadcasting), and any caching copies during the upload or transmission.

C. Producer's assignment? The GRAMO system builds on the understanding that artists' right to obtain remuneration cannot be acquired

by the producers. Yet this is not explicitly stated in the law, and in connection with a new law for MCM of streaming, it may be useful to include a non-‐transferability clause for artists' rights, perhaps supplemented by a requirement that such artists' rights must be tied to physical persons. A general non-‐transfer clause for the exclusive right might contravene the general principle that copyright may be transferred, but there should be acceptance for a clause whereby the

Some models need to be scrapped Photo: Svein Erik Dahl


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artists' right to obtain remuneration cannot be transferred.

In practice it would mean that artists can indeed transfer their exclusive right to authorise the provider's stream, but that the artist shall nevertheless have a non-‐transferrable right to obtain remuneration for licencing the making-‐

available right, and that this right cannot be assigned in connection with the recording process. By this means, artists cannot waive the right to obtain remuneration from the stream provider, but they can allow such remuneration to be paid through The Collective.

It would correspond to the rule in the old EU Rental Directive, which states in Article 4, regarding the rental right:

Unwaivable right to equitable remuneration 1. Where an author or performer has transferred or assigned his rental right concerning a phonogram or an original or copy of a film to a phonogram or film producer, that author or performer shall retain the right to obtain an equitable remuneration for the rental. 2. The right to obtain an equitable remuneration for rental cannot be waived by authors or performers. 3. The administration of this right to obtain an equitable remuneration may be entrusted to collecting societies representing authors or performers.

Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 (my underline)

D. Like and unlike GRAMO. Unlike GRAMO's mandatory licence, the streaming clause for exclusive rights must prescribe preclearance (prior consent) from the Collective before streaming can take place. In several other areas the new clause can be regulated like GRAMO.

These include the Revenue Commission that sets the remuneration with binding effect if negotiations are unsuccessful (cf. NCA § 35, first para).

MCM does not require the Collective to be representative for the artists, but it must require the Collective to have official approval, so it can be set up as a legal monopoly just like GRAMO.

Quite possibly therefore GRAMO may be preferred as the CMO for the new area, although there seems little sense in writing this into law.

Another likeness is with the GRAMO remuneration: The MCM model will avoid a situation where the size of the remuneration varies according to royalty contracts. Record labels currently receive equal amount for each stream -‐ so why shouldn't artists do the same -‐ although of course GRAMO could conceivably adjust the remuneration according to the track length.


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E. Primary proposal: In non-‐legalese, the proposal is thus that:

At rewriting NCA § 42, on-‐demand downloads and streaming will still be regulated as exclusive rights.

The law should emphasise that these rights may only be exercised through Mandatory Collective Management, MCM, and with a non-‐transferrable right to obtain remuneration.

Setting the remuneration and conditions will depend on the NCA § 35 Commission

This keeps NCA § 45b unchanged. Alternatively, minor amendments can be made to NCA § 42 in combination with a more extensive revision to NCA § 45b. Both these proposals are crystallised (though only in outline!) in Appendix 1. A further alternative would be to commit to a model based on Collective Licencing. F. Including the producers? Introduction of a common MCM streaming model is recommended for both artists and producers. Producers have also praised the benefits of working with GRAMO, and many will concur that producers have a clear interest in joining such an MCA model.

In GRAMO's traditional area, Nordic solutions have proved their superiority, but despite this the international music industry is strongly sceptical of mandatory solutions.

Moreover, many labels will be suspicious of MCM for fear that today's biased pie-‐sharing between producer and artist is straightened up.

Actually there is no reason why MCM could not be introduced for artists only. In that case, streaming providers would need to sign a deal with both The Collective and with each producer.

A further option could be to allow Voluntary Collective Management, for those producers wishing to join the party. It seems likely this would attract many of the independent Norwegian producers, and not least those artists who produce themselves.

– or why not the Norwegian cluster called Phonofile?

Welcome!

FONO

Never say Never Photo: Kristin Svorte, Dagbladet

Part IV Some practical consequences of the proposed legislation

14. Expanding GRAMO?

From an artist's point of view, the upside of such legislative provisions would be:

• Clear rights situation and less dependence on music label,

• Safeguarding all artists, including studio musicians,

• Higher remuneration and a bigger share of the pie

• Professional collective administration.

In the wake of such legislation, the most natural course would be tasking Gramo for establishing the administrative organisation. Gramo already have the database of metadata, and the present distribution systems in Gramo should relatively easily adapt to the task of reconciliation of streaming revenues.

The same goes for electronic log sheets. This brings us in the happy position that practical management, including annual distribution, could be up and running just as soon as the remuneration is set and the money is collected.

Distribution of streaming revenues Today's royalty model means varying rates for different artists, despite every stream provider reckoning the same amount for each stream -‐ why not simply redistribute this revenue? Why not reconcile each and every artist's remuneration for each and every stream (adjusted for duration)? The celebrities will earn more in any case due to the larger number of streams.

One would have to decide whether to use the GRAMO points value system for artists, or opt for a model with the same baseline value for every track. That is how the producers' side works already, resulting in popular recordings earning higher remuneration thanks to greater stream volume, not because of an elevated baseline.6

6 Incidentally, the author's view is that GRAMO should in any case abandon the points system, and adopt a share-‐based distribution for artists. This would admittedly imply a major rectification of the database, and that would take a rather long time.

Authorisation: A necessary precondition is that licensors must grant management rights to Gramo. One way to approach this is for Gramo to write to members and ask for authorisation. Additionally GramArt could grant permission on behalf of its members. From GramArt's Byelaws, section 3.1, we can read:

”GramArt may enter into binding collective agreements on behalf of members, either itself or through a management organisation, albeit subject to the limitations that follow from GramArt's Byelaws and other legislation, which do not contravene other pre-‐existing management contracts of members."

Unlike the situation with extended collective licensing, the Collective may initially only collect the remuneration for its own members. For that reason, GramArt members' collective enrolment is crucial. Other artist organization should be urged to undertake a similar operation. Beyond that, the Collective and commercial users are naturally free to agree that the remuneration shall

embrace all artists -‐ subject to the assumption that the Collective takes responsibility and risk for all claims that may be raised by unorganised artists.

The providers will need to know which recordings that are managed by the Collective, and therefore a searchable list of such recordings is essential. With it, providers can monitor the Collective's repertoire before uploading masters for streaming. This should not involve any problems, especially since the list is a subset of GRAMOs database.

Rates: The final stipulation of the remuneration will take place through free negotiations or a Price Commission. It will always be based on a comparison of relevant remuneration fees in Norway or Scandinavia. In practice it means that the Commission will have to set the size of an equitable artist's remuneration, in light of the previously agreed producer's fee. It is outside the remit of this Brief to discuss the distribution of the streaming pie, although the following is self-‐evident:

There is no law to say that the split between producer and artist must be 50:50 as we recognise from GRAMO today. On the other hand, we must expect that the Price Commission will be reluctant to endorse a position

equivalent to today's (roughly) 15 % royalty.

The question becomes how providers like WIMP and Spotify will respond to the old contracts with producers. They are based on contracts that licence the rights of both producers and artists under NCA 45 and 42, and realistically we must expect providers to want to finance a separate artists' fee by reducing today´s payment to producers.

Producers have a very poor hand if they insist that the old record contracts should regulate streaming. These old royalty contracts are historically linked to physical record production, and give neither the producer the right to represent the artists, nor viable reasons to impose an artists' royalty like the old

record contracts. For new contracts the picture may be more varieed.

Since streaming includes both a transmission function at the provider, and a receiver function at the user, the law must regulate different scenarios. First and foremost, streaming in Norway to Norwegian recipients (IP addresses), but also streaming from Norway to international recipients, and streaming from international providers to Norwegian recipients. In the two latter cases -‐ when streaming crosses borders -‐ only the Norwegian activities will be affected.

All are not protected: 15. International rights holders and streaming

International rights holders must rely on relevant Norwegian legislation when exercising their rights for Norwegian streaming. According to the MCM-‐solution proposed here, artists can neither collect for themselves, nor transfer this function to the labels – meaning that artists will be expected to leave the administration to the Collective. GRAMOs databases should be ideal for the purpose.

The protection of artists is basically for rights holders and fixations related to Norway, but the scope of copyright law is extended to foreigners from EU/EEA. There is also a certain extension via the Rome Convention, and the WTO/ TRIPS Agreement (WPPT is not applicable). For the GRAMO area we know that US recordings are not protected for traditional public performance and broadcasting.

For streaming the NCA regulations expand the protection beyond simply European Union artists, to also include artists who perform on sound fixations where:

“...the producer of the sound fixation is domiciled in another Rome Convention state or WTO state, or when the first fixation of the sound was done in another such contracting state, or when the first publication of the sound fixation was made in another such contracting state." (See Appendix 4)

This implies that US musicians (and even Canadian kids) do have protection in Norway for streaming-‐on-‐demand

It must be emphasised that this extension does not include producers who are "domiciled in another Rome Convention state or WTO state", but only artists who perform on the fixations of these producers.

...protected by the Copyright Act, or just by bodyguards? Photo: Hans Arne Vedlog,


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The principle that Norwegian law at the outset only protects Norwegian rights holders, is equally true for producers, cf. NCA § 45. With the exception of the reproduction right in NCA § 58, the scope of producers protected is only expanded by way of the said regulation.

The wording of the regulation implies that only fixations from the EU/EEAare protected under NCA § 45.

Thus it seems clear that extension by regulation goes further for artists than for producers, and it is not easy to understand what legal basis should today grant US producers protection for on-‐demand streaming of their fixations in Norway.

It is likely that the producers to date have claimed remuneration from WIMP and Spotify without the problems of geographical limits being raised. It is high time that producers supported their case with legal arguments. A demand for protection for making available, based solely on the right to reproduce the single master copy, is surely a fragile base.

In the traditional broadcasting sphere of GRAMO, it has been considered safe law

that a fixation is fully protected when at least one of the musicians performing on it is protected, for example by virtue of being a resident of the EU. The assumption is then that GRAMO can demand the full remuneration, so that also the other musicians and producer receive it, albeit they may be American. But this argument rests on a condominium structure, a mandatory licence, and common collection of the total remuneration.

The structure is materially different in streaming, given that the exclusive right is retained. Exclusivity is currently granted in two separate provisions (NCA 42 and 45), and where artists' protection does not spill over to the producers. A grey area may arise if producers were included in an MCM, in a mandatory condominium with the artists.

So for some fixations artists will be protected for streaming on-‐demand in Norway, but not producers – and US fixations will be typical examples.

I wonder how royalty will be calculated in such a situation?


37

It is always best to look forward, but we want to end this Brief with a visit to what may seem like an anachronism in Norwegian music -‐ a fund that was established in the post-‐war years to secure pensions for musicians and their widows in an age when National Insurance and Social Security had not yet been thought of.

50 million extra?

16. The Fund for Performing Artists and unprotected repertoire

The 1956 Act of the Fund for Performing Artists establishes a universal levy payable to the Fund for all broadcasting and other public performance of the fixations not being protected by NCA 45b. These are mainly US recordings, and presently the Fund receives some 50 million kroner in levies each year.

Performances by means of streaming or downloads are not subject to the levy, as is spelled out in the following rule in the 1956 Act § 3, second paragraph:

The obligation to pay a levy does not extend to public performance of a sound fixation for which no remuneration is payable under the Copyright Act 45b, or public performance of a sound fixation or film by transmission in such a way that the individual can choose the time and place of access to the fixation. (Read: On-‐demand services)

In fact there is no weighty reason why the exception underlined here

should exist. Streaming of works not protected by the

NCA (exclusive rights in 42 and 45), could without problem be subject to a levy, especially if the streaming is regulated by MCM. Then it would simply be logical for all forms of performance to attract a levy.

This general levy could bring in significant proceeds. The annual streaming sales by record labels are likely to reach some 350 million kroner in 2013. If we conservatively estimate that 10% of songs are unprotected by artist or producer, and that an additional 15% is not protected by producer (US recordings), a levy reflecting today's streaming rates would net some 50 million kroner a year -‐ with a huge potential for growth.

Finally we offer a solution to the puzzle... 17. Columbus's Egg conundrum

It is not possible, within the law of copyright, to reallocate streaming revenues according to the whim of the Culture Ministry. The market issues described at the start of this Brief are here to stay -‐ most likely for a long time to come. On the other hand, all levy revenues from streaming of unprotected music could be freely applied in the best interests of Norwegian artists ("whose activity is in Norway"), in the sense that a major portion of the proceeds could be used to supplement the streaming fee.

Particularly in a transitional phase, this could be extremely significant for Norwegian artists.

We must mention that introduction of such a levy could be done today, regardless of any changes in the NCA proposed here. The levy would be charged on all on-‐demand performances of unprotected repertoire (inclusive downloads).

Regardless of what is decided above, the recommended procedure will look like this:

Proposal:

Parallel to the proposed amendments to the Norwegian Copyright Act, the Act of the Fund for Performing Artists should be amended by the introduction of a Levy on streaming of non-‐protected repertoire. The major part of the proceeds will be channelled through the Collective to subsidise stream remuneration to artists, while the remainder will be accrued to the Fund for Performing Artists.

Although no one can remain satiated on a single egg forever, during a lean transitional period it will keep the wolves from the door. And the very simplicity of the proposal should not distract us from its power.

Columbus's egg...too simple?

– yet it stands! (Illustration by Hogarth)

Appendix 1 Draft clauses for Mandatory Collective Administration, MCA Primary proposal: ...where streaming and download are regulated collectively Tvungen Kollektiv Forvaltning, TKF Mandatory Collective Administration, MCA

§ 42. En utøvende kunstner har, innen de grenser som er angitt i denne lov, enerett til å råde over sin fremføring av et verk ved å

Section 42. Subject to the limitations laid down in this Act, a performing artist has the exclusive right to dispose of his performance of a work by

<Opptak> <Fixation> a) gjøre varig eller midlertidig opptak av fremføringen, a) making temporary or permanent fixations of the

performance, <Eksemplarfremstilling> <Making copies of fixation> b) fremstille varig eller midlertidig eksemplar av et opptak av fremføringen,

b) producing permanent or temporary copies of a fixation of the performance, and

<On-‐demand> <On-‐demand> c) gjøre fremføringen eller opptak av den tilgjengelig for allmennheten ved overføring på en slik måte at den enkelte selv kan velge tid og sted for tilgang til opptaket. Retten til slik offentlig fremføring av lydopptak (samt teknisk nødvendig eksemplarfremstilling knyttet til fremføringen) kan bare gjøres gjeldende gjennom forvaltnings-‐organisasjon som er godkjent av vedkommende departement, og den utøvende kunstner kan ikke fraskrive seg sin rett til å få utbetalt (et rimelig) vederlag for fremføringen.

c) making the performance or a fixation of the performance available to the public, by transmission in such a way that the individual can choose the time and place of access to the fixation. The right to such public performance of a sound fixation (and the technically necessary reproduction facilitating the performance) may only be invoked through a collective management organisation approved by the Ministry concerned, and the right to obtain (equitable) remuneration for the performance cannot be waived by the performing artist.

<Non on-‐demand> <Non on-‐demand> d) For offentlig fremføring av lydopptak der den enkelte selv ikke kan velge tid og sted for tilgang til opptaket, gjelder bestemmelsene i § 45b.

For the public performance of sound fixations for which the individual cannot choose the time and place of access to the fixation, the provisions in section 45b nonetheless apply.

§ 35 om nemndsfastsetting av vederlag må utvides til å omfatte § 42 c).

Section 35 regarding a price commission to set the remuneration must be expanded to embrace NCA 42 c).

§ 45b kan da stå uendret. NCA 45b can then remain unchanged.


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Alternative proposal: ...where streaming and download are regulated separately

§ 42 får et mindre tillegg i første ledd pkt. c:

NCA 42 gets a small addition in the first paragraph, letter c):

§ 42. En utøvende kunstner har, innen de grenser som er angitt i denne lov, enerett til å råde over sin fremføring av et verk ved å

Section 42. Subject to the limitations laid down in this Act, a performing artist has the exclusive right to dispose of his performance of a work by

a) gjøre varig eller midlertidig opptak av fremføringen, a) making temporary or permanent fixations of the performance,

b) fremstille varig eller midlertidig eksemplar av et opptak av fremføringen, og

b) producing permanent or temporary copies of a fixation of the performance, and

c) gjøre fremføringen eller opptak av den tilgjengelig for allmennheten. For offentlig fremføring av lydopptak og for eksemplarfremstilling som er (teknisk) nødvendig for vedkommende fremføring, gjelder likevel bestemmelsene i § 45b, innbefattet tilfeller der fremføringen skjer på en slik måte at den enkelte selv kan velge tid og sted for tilgang til opptaket.

c) making the performance or a fixation of the performance available to the public. For the public performance of sound fixations and for the (technically) necessary reproduction facilitating the performance, the provisions in section 45b nonetheless apply, including if the performance is done in such a way that the individual can choose the time and place of access to the fixation.

mens § 45b får et lengre innskudd: while NCA 45b gets a longer addition: § 45b. Lydopptak av utøvende kunstneres prestasjoner kan innenfor det i § 45 nevnte tidsrom mot vederlag gjøres tilgjengelig for allmennheten ved offentlig fremføring. Når overføring skal skje på en slik måte at den enkelte selv kan velge tid og sted for tilgang til opptaket, kreves tillatelse fra de utøvende kunstnere som medvirker på opptaket. For utøvende kunstnere gjelder at retten (til slik fremføring) ikke kan overdras, og at slik tillatelse bare kan gis gjennom forvaltningsorganisasjon som er godkjent av vedkommende departement. Det samme gjelder tillatelse til å fremstille teknisk nødvendige eksemplar for vedkommende fremføring. (Bestemmelsen her gjelder ikke for overføring som medfører at mottaker tillates å fremstille varig eksemplar av opptaket).

Section 45b. Sound fixations of the performances of performing artists can, within the period of time specified in section 45, against remuneration, be made available to the public through public performance. When transmission is done in such a way that the individual can choose the time and place of access to the fixation, permission is required from the performing artists who perform on the fixation. For performing artists the rights (to such performance) cannot be transferred, and such permission may only be given through a management organisation approved by the Ministry concerned. The same applies for permission to make the technically necessary fixations for such performance. (This provision does not apply to transmissions where the recipient is granted permission to make permanent fixations of the fixation.)

Så vel tilvirkeren av opptaket som de utøvende kunstnere hvis fremføring gjengis, har krav på vederlag. Har to eller flere kunstnere samvirket ved fremføringen, må de gjøre vederlagskravet gjeldende i fellesskap. Overfor de vederlagspliktige må vederlagskravet etter første ledd første punktum gjøres gjeldende gjennom oppkrevings-‐ og fordelingsorganisasjon som er godkjent av vedkommende departement. Kongen kan gi nærmere regler om oppkreving og fordeling av vederlag. Osv...

Both the producer of the fixation and the performing artists whose performances are reproduced are entitled to remuneration. If two or more artists have cooperated in the performance, they shall jointly present their claim for remuneration. A claim for remuneration under the first paragraph, first sentence, shall be presented to those who are liable to pay it through a collection and distribution organization approved by the Ministry concerned. The King may issue further rules for the collection and distribution of remuneration. Etc...

...as will be seen, this alternative proposal is quite fiddly in law terms, unless there is somebody out there who can formulate the same ideas more succinctly?


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Appendix 2 Current legislation § 42. En utøvende kunstner har, innen de grenser som er angitt i denne lov, enerett til å råde over sin fremføring av et verk ved å (….)

Section 42. Subject to the limitations laid down in this Act, a performing artist has the exclusive right to dispose of his performance of a work by (….)

c) gjøre fremføringen eller opptak av den tilgjengelig for allmennheten. For offentlig fremføring av lydopptak gjelder likevel bestemmelsene i § 45b, med mindre fremføringen skjer på en slik måte at den enkelte selv kan velge tid og sted for tilgang til opptaket.

c) making the performance or a fixation of the performance available to the public. For the public performance of sound fixations the provisions in section 45b nonetheless apply, unless the performance is done in such a way that the individual can choose the time and place of access to the fixation.

§ 45b. Lydopptak av utøvende kunstneres prestasjoner kan innenfor det i § 45 nevnte tidsrom mot vederlag gjøres tilgjengelig for allmennheten ved offentlig fremføring. Dette gjelder ikke for overføring på en slik måte at den enkelte selv kan velge tid og sted for tilgang til opptaket.

Section 45b. Sound fixations of the performances of performing artists can, within the period of time specified in section 45, against remuneration, be made available to the pubic through public performance. This does not apply to transmission done in such a way that the individual can choose the time and place of access to the fixation.

Så vel tilvirkeren av opptaket som de utøvende kunstnere hvis fremføring gjengis, har krav på vederlag. Har to eller flere kunstnere samvirket ved fremføringen, må de gjøre vederlagskravet gjeldende i fellesskap. Overfor de vederlagspliktige må vederlagskravet gjøres gjeldende gjennom oppkrevings-‐ og fordelingsorganisasjon som er godkjent av vedkommende departement. Kongen kan gi nærmere regler om oppkreving og fordeling av vederlag. Vederlagets størrelse skal fastsettes uavhengig av avgiftsplikten etter § 3 i lov 14. desember 1956 nr. 4 om avgift på offentlig framføring av utøvende kunstneres prestasjoner mv.

Both the producer of the fixation and the performing artists whose performances are reproduced are entitled to remuneration. If two or more artists have cooperated in the performance, they shall jointly present their claim for remuneration. A claim for remuneration shall be presented to those who are liable to pay it through a collection and distribution organization approved by the Ministry concerned. The King may issue further rules for the collection and distribution of remuneration. The amount of the remuneration shall be fixed independently of the obligation to pay a levy pursuant to section 3 in the Act No. 4 of 14 December 1956 relating to a levy on the public performance of performing artists’ performances, etc.

Rettighetshavere som ikke er medlem av organisasjon godkjent etter andre ledd, må selv fremsette krav på vederlag overfor organisasjonen. Kravet må fremsettes innen tre år etter utløpet av det år opptaket ble fremført. Vederlag for videresending kan uansett fordeles etter prinsippene i § 37.

Rights holders who are not members of an organization approved pursuant to the second paragraph, must themselves claim remuneration from the organization. Such claim must be put forward within three years after the expiry of the year in which the fixation was performed. Remuneration for forwarding can regardless be distributed in accordance with the principles in § 37.

Bestemmelsene i §§ 3, 21, 22 og 25, jf. § 11, og § 39k fjerde ledd, har tilsvarende anvendelse.

The provisions of sections 3, 22 and 25, cf. section 11, and section 39 k, fourth paragraph, shall apply correspondingly.

Det som er bestemt i denne paragraf gjelder ikke for lydfilm. For offentlig fremføring av lydopptak som ikke er vernet etter åndsverkloven, gjelder lov 14. desember 1956 nr. 4 om avgift på offentlig framføring av utøvende kunstneres prestasjoner mv.

The provisions of this section shall not apply to sound film. For public performance of sound fixations that are not protected under the copyright act, the Act No. 4 of 14 December 1956 relating to a levy on the public performance of performing artists’ performances, etc. applies.


42

§ 58, annet ledd Section 58, second paragraph Bestemmelsene i § 42 og i § 45a gjelder dessuten også for fremføringer og kringkastingssendinger som finner sted i Norge. Bestemmelsen om spredningsrett i §§ 42 og 45 gjelder for lyd-‐ og filmopptak gjort i Norge. Bestemmelsen i § 45 om rett til eksemplarfremstilling gjelder til fordel for ethvert lyd-‐ og filmopptak.

The provisions of sections 42 and 45a shall, moreover, also apply to performances and broadcasts which take place in Norway. The provision concerning the right of distribution in sections 42 and 45 shall apply to sound and film fixations made in Norway. The provision in section 45 concerning the right to make copies shall apply for the benefit of all sound and film fixations.

Forskjellige nyanser i beskrivelsen av retten til making-‐available

Slight differences in description of right to make available:

§ 2: når verket stilles til rådighet på en slik måte at… Section 2: when the work is made available in such a

way that...

§ 42: fremføringen skjer på en slik måte at… Section 42: the performance is done in such a way that the individual can choose the time and place of access to the fixation

§ 45b: …for overføring på en slik måte at… den enkelte selv kan velge tid og sted for tilgang til verket

Section 45b: …to transmission done in such a way that …the individual can choose the time and place of access to the fixation


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Appendix 3 Current regulations pursuant to the Copyright Act Regarding NCA 42, 45 and 45b. Expansion of Copyright Act's geographical reach. § 6-‐1. Bestemmelsene i åndsverkloven skal, i samme utstrekning som de gjelder for norske statsborgere og selskaper med tilknytning til Norge, gjelde tilsvarende for verk og for arbeider omhandlet i lovens femte kapittel av

Section 6-‐1. The provisions in the Copyright Act shall apply to the same extent as they apply to Norwegian citizens and companies with a connection to Norway, correspondingly for works and other manifestations dealt with in Chapter 5 by

a) en person som er statsborger av eller bosatt i et land innenfor Det europeiske økonomiske samarbeidsområde (EØS), eller

a) a person who is a citizen of or domiciled in a country within the European Economic Area (EEA), or

b) et selskap som har sitt sete i et land innenfor EØS.

b) a company which has its headquarters in a country within the EEA.

Bestemmelsene i åndsverkloven § 42 og § 45 om spredningsrett skal også gjelde for lyd-‐ og filmopptak som er gjort i et land innenfor EØS.

The provisions in NCA 42 and 45 concerning further distribution rights shall also apply to sound and film fixations made in a country within the EEA.

§ 6-‐9. Åndsverkloven § 42 skal, med unntak av den der nevnte spredningsrett, gjelde uten hensyn til den utøvende kunstners nasjonalitet for fremføring som finner sted i et land som er tilsluttet Konvensjonen av 21. oktober 1961 om vern for utøvende kunstnere, fonogramprodusenter og kringkastingsvirksomheter (Romakonvensjonen) eller til et land som har tiltrådt Avtale om opprettelse av Verdens Handelsorganisasjon (WTO), herunder Avtalen om handelsrelaterte sider ved immaterielle rettigheter (TRIPS).

Section 6-‐9. The Copyright Act 42 shall apply, except for the said distribution rights, regardless of the performing artist's nationality, for a performance that takes place in a country that has acceded to the 21 October 1961 International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome Convention), or a country that has acceded to the World Trade Organization (WTO) Treaty, hereunder the WTO Agreement on Trade-‐Related Aspects of Intellectual Property Rights (TRIPS).

Det samme gjelder når det er gjort lydopptak av fremføringen og lydopptakets tilvirker er hjemmehørende i et annet Romakonvensjonsland eller WTO-‐land, eller når det første opptak av lyden ble gjort i et annet slikt land, eller når den første utgivelse av lydopptaket ble gjort i et annet slikt land.

The same shall apply when a sound fixation of the performance has been made, and the producer of the sound fixation is domiciled in another Rome Convention state or WTO state, or when the first fixation of the sound was done in another such contracting state, or when the first publication of the sound fixation was made in another such contracting state.

Det samme gjelder også når fremføringen, uten at det er gjort lydopptak av den, er tatt med i en kringkastingssending som er vernet i henhold til Romakonvensjonen art. 6, forutsatt, i henhold til det norske forbehold til artikkelen, at kringkastingsinstitusjonen både har sitt sete i et annet konvensjonsland og kringkastingssendingen ble foretatt fra sender i det samme konvensjonsland.

The same shall apply also when the performance, although no sound fixation has been made of it, is included in a broadcast transmission that is protected under the Rome Convention, Article 6, provided that, in respect of the Norwegian reservation to that article, the broadcasting institution both has its headquarters in another country that is a member of the Convention, and the broadcast transmission was done from a transmitter in the same member country.

Bestemmelsen i paragrafen her gjelder tilsvarende for utøvende kunstner, når det foreligger tilknytning som her nevnt i et land som har tiltrådt WTO-‐avtalen.

The provision in this section shall apply correspondingly for performing artists, when there is a connection as described here to a country that has acceded to the WTO treaty.

§ 6-‐10. Bestemmelsene i åndsverkloven § 42 om utleie av lydopptak

Section 6-‐10. The provisions in the Copyright Act 42 regarding rental of sound fixations.

Bestemmelsene i åndsverkloven § 45 om utleie av lydopptak.

The provisions in the Copyright Act 45 regarding rental of sound fixations.


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§ 6-‐12. Bestemmelsene i åndsverkloven § 45b skal gjelde for alle lydopptak som er tilvirket av noen som er hjemmehørende i et land som er tilsluttet Romakonvensjonen såfremt dette land tilstår utøvende kunstnere eller tilvirkere av lydopptak vederlagsrett etter bestemmelsene i Romakonvensjonens art. 12. Retten til vederlag for videresending av kringkastingssending omfattes ikke av denne bestemmelse.

Section 6-‐12. The provisions in the Copyright Act 45b shall apply to all sound fixations produced by a person who is domiciled in a Rome Convention state, provided that said contracting state grants to performing artists, or producers of sound fixations, a right to obtain remuneration under the Rome Convention Article 12. The right to obtain remuneration for retransmission of a broadcast transmission is not embraced by this provision.

Retten til vederlag etter første ledd varer ikke ut over den tid norske lydopptak gis tilsvarende vederlagsrett i det land der tilvirkeren er hjemmehørende.

The right to obtain remuneration under the first paragraph shall not extend beyond the time that Norwegian sound fixations are granted a corresponding right to obtain remuneration in the country where the producer is domiciled.

...samt lovens § 58 (se vedlegg 3)

...and Section 58 of the Act (see Appendix 3)

Documents

United for streaming - GramArt › ... › 2016 › 03 › United_for_streaming.pdf · 2019-04-09 · United*for*Streaming*****5*****Study*paper*commissioned*byGramArt*****5*****by*SæmundFiskvik*

United for streaming - GramArt › ... › 2016 › 03 › United_for_streaming.pdf · 2019-04-09 · UnitedforStreaming5StudypapercommissionedbyGramArt5*bySæmundFiskvik