Posts Tagged Collective Rights Management

Commission study calls for action on authors’ remuneration

Far be it from us to think the European Commission doesn’t want anyone to read its study on the remuneration of authors and performers in the audiovisual and music sectors, but we’re a bit concerned some of you may have missed that late Friday afternoon publication towards the end of July.  As an organisation that has been highlighting the poor situation of screenwriters and directors, this is a study we have been eagerly awaiting.  So, what does it say?

The study finds clear problems that prevent authors from enjoying the full benefit of the exclusive rights conferred upon them by numerous European Directives.

The key finding is that transparency is a problem which is having an impact on the internal market.  This means the European Commission can look into issues such as contractual negotiations which are usually considered sovereign to the countries in the EU.  The study puts forward 2 proposals to tackle this. The first is clear contracts that identify which rights (e.g. making available, rental) are being transferred for which means of exploitation (e.g. cinema, rental, VOD) and the level of remuneration for each right and exploitation method.  Precedents for laws that provide for transparency exists in both the Netherlands and France.  The second is to ensure that this transparency applies cross-border and that authors and performers can understand different national systems (although it’s doubtful that knowledge of the best legal jurisdiction would see authors moving to countries where they don’t speak the language or have contacts with people in the industry are what will guarantee them work…).

The next 2 proposals focus on strengthening authors and performers both individually (by limiting the scope for transferring rights for future works and exploitation methods) and collectively so that they can negotiate collectively and rectify their weak negotiating position.  This means making it possible for authors to get a good, transparent deal and not be tied into long, unfair contracts.

Finally, and significantly for us, the study identifies SAA’s proposal for a collectively managed unwaivable right to remuneration as a solution to the issue of authors’ remuneration.  We believe that this is the only way authors will be able to be transparently and effectively remunerated for the multiple online exploitations that will develop in the coming years.

Any complaints?

A few.  Unfortunately the study was not able to obtain exploitable statistics for the remuneration of screenwriters and directors in the 10 countries examined.  The authors of the study recognise the poor quality of their economic survey and therefore did not take it into account in their recommendations. There are surely many reasons behind this failure (as well as the number one key finding – the situation just isn’t transparent, including for the authors themselves) but it has deprived us of the opportunity to demonstrate once and for all the poor remuneration situation of screenwriters and directors.

The legal analysis for the different countries (the main input to the debate as the economic survey was not exploitable) is presented in a confused way, giving anecdotal examples of the impact of particular national conditions on, say, music performers or screenwriters, without presenting a complete consistent image of the legal framework of the 10 countries.

On top of that, the published audiovisual sector analysis seems to be heavily based upon documents dating from 2011 or older, despite the European Audiovisual Observatory publishing high quality yearly statistics.  Some of the analysis is based on a 2001 document from the European Investment Bank.  Given the rate of change of the audiovisual sector, these sources cannot give a fair representation of the current state of Europe’s audiovisual sector.

Finally, the policy proposals fail to offer the dual approach that SAA believes necessary to resolve the challenges faced by screenwriters and directors.  We need to focus on both the contract negotiation stage and enforcement at the exploitation stage in parallel.  To focus on one, won’t solve the problem of the other.  The first proposal is a clear element that has precedent in different European countries.  The others should not be considered as ‘either/or’ options, or implemented one after the other to see which one works.  Authors need better contracts at the production stage and fair remuneration at the exploitation stage.

This new study has brought forward additional proof that action is needed.  A legislative proposal from the Commission is the next step.


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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?


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Vilnius on the forefront of audiovisual authors’ rights protection

I have just got back from Vilnius where I was invited by the Lithuanian Ministry of Culture to make a presentation on the collective management of audiovisual authors’ rights. They are seriously considering improving the protection of audiovisual authors and performers’ rights. The conference aimed at assessing the protection of audiovisual authors and performers at international level, European level and in a specific country, Spain, before entering into a discussion of their situation in Lithuania.

At a time of uncertainty for the future of EU copyright rules due to the changes in the European Commission, it was very refreshing to hear that there is at least one Member State who does care about audiovisual authors and wants to address the current inefficiencies in the legal framework that prevent them from exercising their rights.

After expanding the list of devices subject to private copying levies in 2011, which significantly increased the compensation collected for authors, performers and producers (€3 to 4 million a year in total in a country with 3 million inhabitants), the Lithuanian Ministry of Culture is now preparing a draft law to improve the situation of authors and performers of audiovisual works and enable them to receive remuneration for both the creation of audiovisual works and their subsequent use in the various possible forms of exploitation.

Inspired by existing legislation in Spain, Poland, Bulgaria and Estonia, the draft law will propose distinguishing between the remuneration to be paid to the author by the producer for the creation of the work and the remuneration to be paid by users for the commercial use of the works. To protect the interests of the authors, the draft law proposes that producers will not be able to takeover the rights of authors to remuneration for the use of the audiovisual works. Agreements in which authors waive their right to remuneration would be deemed invalid. In addition, it proposes to provide for the compulsory collective administration of the remuneration which is seen as the only way to ensure authors’ right to remuneration in practice. This argument is strengthened by the Collective Rights Management Directive which now provides for European standard criteria for governance, accountability and transparency of collective management organisations.

Interestingly, the Lithuanian Ministry of Culture invited other Member State representatives to the conference. Was the objective to give them inspiration for their future legislative plans? I hope that the European Commission will hear about this Lithuanian initiative and will address, in its future activities on EU copyright rules, this urgent issue of the remuneration of audiovisual authors in the digital era.


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Hearing both (or more) sides of a tale

Janine Lorente, the chair of SAA’s board of directors, spoke at the European Parliament’s legal affairs committee hearing on collective rights management on Monday.  She was one of 13 stakeholders in a detailed programme which showed just how many different stakeholders will be affected by the directive when it comes into force.  Out of the 13 presentations, only Janine looked at the issue from a non-music point of view.

This directive cannot just be looked at from a simplified creator, CMO, user perspective.  It has to be looked at within multiple contexts including the different rightholders and sectors that use collective management and the different national approaches. What the Parliament and the Council have to work out is a way of coming up with a text that has the flexibility for the different sectors and legal traditions while fulfilling the key objective of well-functioning societies providing fair remuneration and guarantees to creators so that they can really benefit from their rights .

Not an easy task, but essential for the Directive to work for everyone.

You can find the presentations here and a video of the full hearing here (Janine Lorente’s presentation starts around the 15:48:30 time mark).

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Remuneration and audiovisual works online

September in Brussels is always a funny thing.  August (despite the best efforts of the Commission to publish proposals and reports at the end of July) slows down completely, lulling you into a feeling of false preparedness (if there is such a word) for the months ahead.  Then September hits you.  Proposals here, Declarations there, conferences this day, board meetings the next.  The whirlwind grabs you.

All this is a very long way of introducing a very significant event that took place last month that I’ve been meaning to write about for a while.

The European Parliament adopted a resolution on the Online Distribution of Audiovisual Works on 11th September (read the full text here) and SAA joined a number of organisations in congratulating the European Parliament and its rapporteur Jean-Marie Cavada on the end result.

To see the European Parliament adopt such a united position on a text that includes a whole section on remuneration of audiovisual authors is extremely encouraging.  The text calls for an end to buyout contracts and the strengthening of the negotiation position of authors and performers.  Let’s hope the European Commission’s report that will follow up on this picks up these points as they are essential to the future of online.

I think we have to recognise that one of the key arguments that is used to justify illegal access to audiovisual works online is that whatever happens, the authors of the film (or any other creative work for that matter) aren’t really paid and that the money goes to companies.  If we are going to encourage the younger generations (who have grown up with free online access to films and TV shows) to pay, then part of the solution is in convincing them that the creative people behind the films they love get paid.  This isn’t a criticism of the intermediary companies that make up our industry, they play an essential and often poorly understood role.  It is however a wake up call that they cannot allow this perception to continue.

The same could be said to apply to collective rights management organisations (one of the suggested support structures for better deals for screenwriters and directors in the Cavada report) and I hope that the proposal for a Directive from the Commission will reinforce their vital role for creators.  However there is no legislative procedure on the table to address the problems identified in the European Parliament resolution.  Either this is something that the Commission should consider or the actors themselves should take the initiative and support the sustainability of the whole sector through a rebalanced sharing of the success of creative works.

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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.


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