Posts Tagged CMOs

5 years of SAA

SAA_5AASAA was created 5 years ago to represent the interests of collective management organisations (or CMOs) for audiovisual authors.  When we say audiovisual authors we specifically mean screenwriters and directors of film, TV and multimedia programmes. Music composers are also authors of audiovisual works but their rights are dealt with by music CMOs.

Being created in 2010 makes us relatively young – many other European organisations in the audiovisual sector or creative industries more broadly have been around for longer.  We have grown quickly from 9 founding members to 29 members in 22 countries.  But why was there a need to create the SAA?

The founding organisations set up the SAA because they felt that, in discussions with the European institutions, too often the issues of creators and copyright were treated through the perspective of music. This may have been because the music industry is more organised than the audiovisual sector (collective rights management is commonplace) or was the first to suffer from mass unlicensed exploitation and distribution online.  However, the two sectors, although based on the same broad principles, and both relying on authors’ rights and copyright as a foundation, function very differently and many of the issues facing the different creative sectors cannot be resolved just by fixing the problems of one sector.

We also aim to improve the understanding of how Europe’s audiovisual sector works, not only how it is different to the music sector, but also how it differs from the Hollywood studio system. Production, financing, distribution, promotion and exploitation of European films do not face the same challenges as for US studios. Our national markets and SMEs are simply not comparable to the studios, let alone the internet giants. TVs also play a crucial role in financing and supporting cultural diversity in Europe that is specific to us. Europe’s audiovisual sector is therefore extremely diverse, and so is the situation of its collective management organisations.  Some CMOs manage both screenwriters and directors’ rights, others just directors, others just screenwriters.  Some countries have competing societies, others have one single organisation for all authors irrespective of the sector.  There are many misconceptions and we would like to help rectify that while bringing transparency on the work of our members.  Our main work towards this has been through our two white papers (2011 and updated in 2015) which clearly present the diverse situation of Europe’s screenwriters, directors and their CMOs.

SAA’s main focus has been on ensuring screenwriters and directors are remunerated for the use of their work (from a legal, licensed source), something that is unfortunately not the case today.  We want film and TV fans to know that when they watch a film or TV show, that the screenwriters and directors are being paid.  One off payments at the moment a film or television programme is made cut authors out of the future success of their creative works and are contrary to the principle of authors’ rights. This has to be fixed at EU level to ensure that all European authors get remuneration wherever their works are exploited in the EU.

However, while this is our lead area of action, it is obviously not our only area of work.  We care about the general condition of the sector in which screenwriters and directors work and we also want European works to be able to circulate better across Europe.  Our joint wish-list for the new 2014 European Parliament, prepared with FERA and FSE, demonstrates the range of European issues that are important to the wellbeing of Europe’s film-makers: audiovisual policy, the regulation of internet platforms, international trade, intellectual property rights’ enforcement, etc.  A look at the last 5 years of SAA’s work also demonstrates the range of issues we work on.

Authors’ rights and copyright have been identified as priority action areas by the European Commission.  It looks like the next 5 years will be just as busy.

JT

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Copyright experts discuss solutions to guarantee authors’ fair remuneration

You can now read this post auf Deutsch hier.

The International Literary and Artistic Association (ALAI), a well-known gathering of copyright law experts founded by Victor Hugo in 1878, held its annual international congress in Bonn on 18-19 June 2015.  The theme was ‘remuneration for the use of works: exclusivity v other approaches’. ALAI has a habit of ‘looking out for authors’ said Victor Nahban, ALAI’s President, during his opening speech and two days of discussion of all possible mechanisms to guarantee rightholders’ remuneration in the digital world ensued.

Finding a fair deal for authors is one of the issues the Commission is currently working on in the context of the upcoming proposal for EU copyright reform. Authors and performers’ remuneration is on the agenda of the Commission and the European Parliament but no political decisions have yet been taken, said Maria Martin-Prat, the Commission’s head of the copyright unit. Additional hurdles to be tackled which she raised were the unfair contractual position of authors, while stressing Member States’ reluctance for any EU intervention, and the unfair value transfer online in favour of intermediaries.

It was clear from the discussions that authors should be remunerated, not just compensated, but there was disagreement as to the means to achieve this. A number of speakers, including ALAI former vice-president Adolf Dietz, clearly think and repeatedly voiced their claim that statutory remuneration rights are the only way forward to improve the authors’ position, not exclusive rights. Indeed, the simple fact that ‘remuneration for the use of works’ was the topic of the Congress is proof enough that exclusive rights do not allow authors to be fairly remunerated. As such, exclusive rights ‘lose their raison d’être and need to be replaced by another model’ according to Thomas Dreier (Karlsruher Institute for Technology).

In this context, the SAA’s claim for ensuring audiovisual authors’ fair remuneration for all exploitations of their work – an unwaivable right of authors to remuneration for their making available right (based on revenues generated from online distribution and collected from the final distributor) combined with mandatory collective management – was mentioned as a possible solution. Indeed, it is a simple solution to put in place and to include in the revised Copyright Directive to be. It would not interfere with the producer’s role to produce and exploit audiovisual works but would organise the remuneration derived from online exploitation, which would be collected from the final distributor and flow back to authors through their CMOs regardless of the number of links in the audiovisual commercial chain.

The crucial role of CMOs in guaranteeing that authors actually receive the fair remuneration they are entitled to was underlined several times during the Congress, notably by Sylvie Nérisson (Max Planck Institute for Innovation and Competition in Munich) and Jorgen Savy Blomqvist (Copenhagen University, Denmark), explaining that remuneration rights can only work in practice if they go through CMOs because they provide authors with bargaining power. The important role of CMOs and unions in helping authors get better contracts and support in litigation was also raised.

Other interesting ideas to guarantee authors’ fair remuneration were debated during the Congress, all in all giving the Commission plenty of food for thought and concrete proposals on how to make the EU’s Digital Single Market fairer for authors.

MA

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Implement or copy-paste?

I am back from Vilnius again where the Mykolas Romeris University, in cooperation with the Ministry of Culture of the Republic of Lithuania organized a conference on the collective management of authors’ and neighbouring rights in Europe, focusing on the implementation of the 2014/26/EU Directive on Collective Rights Management.

Professors of copyright law from Lithuania, Estonia, Latvia, Poland and Germany discussed the necessary changes to their national copyright law to comply with the Directive and the possible need to develop a separate legislative corpus on the collective management of copyright and neighbouring rights. They highlighted the growing use of the term “rightholders” which dilutes the original authors among their licensees (producers, distributors) and the poor reference to authors’ rights in the 2014/26/EU Directive.

I presented the challenges of the implementation of the Directive for audiovisual authors’ societies.  Today – at the implementation stage – they face the same problems they denounced at the time of the negotiation and adoption of the Directive: a text targeting music societies because of their dominant position, but applicable to all kinds of collective management organisations (CMOs) whatever their size and the rightholders they represent, thus ill-adapted to audiovisual authors’ CMOs.

The remaining question will concern the attitude of Member States towards this text. How will the Directive fit with their existing supervision mechanisms? Will they rethink their existing systems or adapt the Directive’s requirements to their local mechanisms?

When a Directive (Wikipedia definition) requires Member States to achieve a particular result without dictating the means of achieving that result (which is the usual process) Member States normally have a certain amount of leeway as to the exact rules to be adopted. But when a text like Directive 2014/26/EU goes into such detail on the way CMOs have to be organized and governed, on their distribution plans, the way they communicate with their members, their reporting requirements – which make CMOs some of the most regulated private non-profit organisations in the world! – it leaves little room for Member States to enact real implementation. If Member States are left with nothing to decide, then the temptation to just copy-paste the Directive is strong.

Is this an example of better regulation?

CD

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What can Europe do for its screenwriters and directors?

A Europe without audiovisual works is impossible to imagine. Nevertheless the fact that without authors there would be no films is constantly forgotten. Authors need a secure legal basis – copyright law – and they need collective management organisations (CMOs) to help them enforce their rights and secure fair remuneration, when this cannot be achieved on an individual basis. This has always been the case, but it applies especially in today’s digital world.

The development of copyright and authors’ rights law and copyright and authors’ rights administration law is therefore of central importance for the creators, and for the creative economy. In recent years the driving force for legislation in these areas has increasingly been on the European level: examples are the Directives on orphan works in 2012 and collective rights management in 2014. Further initiatives can be expected from the European Commission. In this situation the authors of audiovisual works and their national CMOs need a strong voice in Europe.

The second edition of SAA’s white paper on audiovisual authors’ rights and remuneration in Europe will be launched in Brussels on 23rd March.  It describes the current situation of screenwriters and directors, and their CMOs, in Europe, and contains concrete proposals for future legislation. In short, it gives an overview of the basic work of the SAA in the next few years.

We hope that many will be able to join us in Brussels on 23rd March and that the White Paper will be circulated as widely as possible.

Guest post from SAA Vice-President, Robert Staats, CEO of VG Wort, Germany

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Between a rock and a hard place

The recent report by Green Pirate MEP Julia Reda really hammers home how the polarisation of the authors’ rights/ copyright debate has made it difficult for creators to talk about the future of their industry.  The latest blog post by Ms Reda asserts as much, too.

If authors defend their rights, they are anti-progress suffering from some sort of Stockholm syndrome for their industry oppressors.  If authors’ defend improving availability of works, they support the weakening of their European business partners and ultimately their ability to make films.

What’s an author to do?

Look at the recent case of independent musician Zoe Keating in the States.  As an individual artist, who has deliberately eschewed record labels to have control of her work and its distribution (she uploaded her own albums to torrent sites), she has no power to negotiate with an operator like Google’s You Tube.

Some creative works, like audiovisual works, sit in a special place between industry and culture.  It’s what makes policy making in this area complex.  It’s what puts creators in a difficult place when negotiating contracts – do I risk being unable to make my film by negotiating harder?  Do I risk never working with a producer again by criticising them for not remunerating me properly?

It also puts them in a difficult position in the copyright debate.  Ask a creator “would you rather your works were available across Europe or just in some countries?” – They will answer, “Across Europe, of course.” They also want them subtitled and dubbed for all the languages too, though.  Ask them if they would prefer people to watch their new film on the big screen or a computer screen and they would answer that they of course prefer a large number of cinemas to release it. But some would also be happy to offer VOD experience to remote areas with no cinemas. Ask them if they mind someone making a mash-up using their work, they’d probably say of course not.  But ask that permission be required to ensure their moral rights are respected, and their work can’t be used in a way they feel inappropriate.

These questions are not that simple for individual creators to answer. If you add the industrial reality of their sector, it does not simplify it at all.

The industrial side of the sector, the part that looks for investment and to cover financial risk, means pan-European distribution is not the norm for European works.  The marketing around films is still, for the most part, focussed around the cinema release with success driving subsequent value.  Mash-ups or remixes that disrespect a work or make money (either for the remixer or remix hosting service) without sharing those revenues with the other creators need legal recourse.

Does this debate really oppose consumers against rightsholders? There are many companies who also stand to benefit financially from reducing the value and scope of licences for creative works.  These companies claim to defend consumer choice and squeeze the creative value chain in order to provide lower prices. As always, those squeezed the most are at the bottom of the chain.

Audiovisual works are expensive to make.  Investment is already difficult to find. Creators want to create, they want their works to find an audience.  But creation does not happen in a vacuum.  Creators without collective power are lost against their industry partners and the new online gatekeepers to their audience.

Weakening the weakest link in the chain seems an odd place to start in achieving a European Digital Single Market.

JT

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EC Directive Shape Games

Audiovisual Triangles and Musical Circles

Before the summer the European Commission (finally) published its long awaited proposal for a Directive on Collective Rights Management (here).

The paper is clearly split into two parts. The first, which applies to all societies, considers the transparency and governance of societies. The second focuses purely on musical societies and the licensing of online music platforms.

SAA is delighted that we now have a document that we can discuss properly and on the whole is very positive about the paper and the whole process. Collective management is going to form a central part of how online services value European works and remunerate their creators. Anything that reinforces confidence in this system is welcome as far as we are concerned.

What we do think is important is that the text has to be able to reflect the differences in all the different sectors. Collective management is much more established in music than it is in many other sectors (and indeed much of the press reaction so far has revolved around the impact on music) and the text mustn’t become too focussed on the functioning and traditions of one sector. It is understandable that some of our members are concerned about how their model will be affected by the proposed rules, especially if audiovisual societies are going to be hamstrung with rules adapted from musical societies.

Collective management comes in all shapes and sizes. When SAA was created two and a half years ago, we consulted our founding members (see the results in our white paper here). We didn’t have two societies that managed exactly the same rights for the same membership. This results in different functioning rules. Despite broad similarities the economies of music, book and audiovisual are all different, with different scales and different value chains. The Commission’s proposal is very detailed (although I’m sure some would say that it does not go far enough). Flexibility for the different sectors has to be built in, otherwise the very people that the Commission is seeking to protect (the creators and the consumers – we hope) will be worse off.

To hear some people you would think that collective management organisations were all part of a racket set up to rip off creators. I hope that by the time this proposal is finalised and adopted we can put such nonsense accusations to rest and focus on the real issue – how can we make sure that all creators from all sectors are fairly remunerated for their creative work.

CD

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