Posts Tagged CMOs
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?
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.