Abstract
Any simplification of tariff structures is inherently related to the legal design of rights and to the existing licensing mechanisms (either mandatorily set by law or voluntarily offered by copyright owners). In this chapter we will examine and comment on some comparative law examples attempting to simplify tariff structures, either voluntarily developed by copyright owners or mandatorily established by legislators, and point out some issues to be considered when trying to successfully simplify these structures.
Raquel Xalabarder is Professor of Intellectual Property at the Universitat Oberta de Catalunya (UOC).
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Notes
- 1.
Any online use of a phonogram or an audiovisual recording involves different overlapping economic rights, several right holders as well as several territories. Furthermore, some of these activities may be differently exempted by limitations and exceptions under each national law.
- 2.
Usually, these solutions tend to be a mere aggregate of territorial licenses.
- 3.
Simplification may be achieved by converging all rights from all right holders required to license a specific activity under one single license. Simplification may also be achieved by overcoming territoriality when the exclusive rights and remuneration rights of several right holders are licensed by one single CMO for several territories.
- 4.
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.
- 5.
These rights of equitable remuneration are set in favor of authors and performers, as inalienable and unwaivable, and are subject to compulsory licensing by CMOs.
- 6.
AGEDI and AIE offer a joint license (on a voluntary basis, not mandated by statute) covering the phonogram performers’ equitable remuneration right for making available online and the exploitation rights (of performers and producers) for making available online. Amounts in brackets (above and below the license fees) show the amounts distributed amongst both CMOs.
- 7.
The exploitation rights of authors and performers have been transferred to the producer.
- 8.
AGEDI also licenses the reproduction done for streaming purposes as “instrumental reproduction”; one wonders whether these acts could be exempted as temporary copies to enable a lawful use under Art. 5.1 InfoSoc Directive.
- 9.
SDRM-SESAM was created in 1995 as a federation of several CMOs (ADAGP, SACD, Sacem, Saje, Scam, and SDRM) to license multimedia online uses (CD, DVD, mobile, streaming, and download). CMOs entrust their rights of reproduction and making available online of repertoires to SESAM, which negotiates and manages the rights, and collects and distributes royalties. Rights managed by SESAM are exclusive rights and belong to several rights holders, available at: sdrmsesam.wordpress.com/sesam. However, SESAM does not appear to be active anymore, as it is not included in the Rapport annuel 2014 de la Commission permanente de contrôle des SPRD, available at: www.ccomptes.fr/Publications/Publications/Rapport-annuel-2014-de-la-Commission-permanente-de-controle-des-SPRD (accessed on 30 March 2016).
- 10.
CEDAR (The Centre for Service to Authors’ and Related Rights) was created in 2005 for the clearance of multimedia rights. CEDAR manages the repertoires of several CMOs by collecting fees and subsequently distributing amongst them, available at: www.cedar.nl/ (accessed on 30 March 2016).
- 11.
ARMONIA was initiated by SACEM, SGAE, and SIAE and later joined by others, to license universal music products. ARMONIA manages the aggregated repertoires of authors and publishers, to license music to online service providers and telecom platforms such as YouTube, Google Play, Deezer, etc., available at: www.armoniaonline.eu (accessed on 30 March 2016).
- 12.
For instance, CELAS was a joint venture between the German GEMA and the British PRS for Music to offer Pan-European licenses of the Anglo-American mechanical rights repertoire of EMI Music Publishing in the field of online and mobile services. EMI’s repertoire is now being licensed by SOLAR—Music Rights Management, available at: www.solar-music.com (accessed on 30 March 2016).
- 13.
Commission Decision COMP/C2/38.014 (8 October 2002).
- 14.
See GCEU (6th ch.) T-392/08 AEPI v. Commission and the several rulings known as the CISAC cases (12 April 2013).
- 15.
WIPO/IFRRO, International Survey on Text and Image Copyright Levies 2014, WIPO, available at: www.ifrro.org/sites/default/files/levies_2014_online.pdf (accessed on 30 March 2016).
- 16.
In Austria, there is only one CMO and one single license (which explains why it is feasible that fees are negotiated with users).
- 17.
In Spain, the levy regime was derogated in 2011; equitable compensation for private copying is calculated each year by the Government (and distributed among each category of works/authors). For 2014, the amount was 5.000.000 € and distributed as follows: Books and assimilated: 22.6 %; Phonograms and alike: 31 %; Videograms and alike: 46.4 %. Orden ECD/2226/2015, de 19 de octubre. A preliminary question (C-470/14 EGEDA) is pending at the Court of Justice of the European Union (CJEU) to see if the compensation regime based on the General State budget is consistent with EU law and clears the requirement of “equitable compensation” of Art. 5.2 Directive 2001/29/EC.
- 18.
For instance, in Spain, Art. 5 Royal Decree 1657/2012 the annual compensation amounts (set by the government) are distributed within each category of right owners as follows: Phonograms and alike: 50 authors, 25 % performers, 25 % producers; Videograms and alike: 33.3 % authors, 33.3 % performers, 33.3 % producers; Books and assimilated: 55 % authors, 45 % publishers.
- 19.
See, for instance, the CJEU ruling, 12 Nov. 2015 (C-572/13) REPROBEL, regarding the reprography limitation in Art.5(2)(a) Directive 2001/29/EC.
- 20.
Texto Refundido de la Ley de Propiedad Intelectual, Real Decreto Legislativo 1/1996, April 12, 1996, as last amended by Act 21/2014, of 4 Nov. 2014.
- 21.
This is a theoretical comparative exercise based on CMOs’ published fees. In practice, discounts and other modulating criteria may apply.
- 22.
Producers of audiovisual recordings are granted an exclusive right of communication to the public of the audiovisual recording (Art. 122.1 TRLPI). In addition, they also have a right (Art. 122.2 TRLPI) to receive an equitable remuneration for the communication to the public of audiovisual recordings under Art. 20(2) (f) and (g) TRLPI. According to Art. 122.2 TRLPI, this equitable remuneration is shared with the performing artists (ex Art. 108.5 TRLPI) whose performances are included in the audiovisual recording. Art. 122.3 TRLPI confirms that it is a “single” equitable remuneration and it will be jointly managed (negotiated with users, calculated, collected and distributed) by the corresponding CMOs (AIE and AISGE for performers, and EGEDA for producers). The same applies to phonogram producers. Art. 116 TRLPI establishes a “single” equitable remuneration in favor of both the phonogram producers and the performers for its communication to the public (in any means, except for making available to the public online), which is subject to compulsory collective licensing. Unlike for audiovisual recordings, here the law expressly states that failing an agreement among the corresponding CMOs regarding how to share the remuneration collected, it will be shared in equal parts. And the same applies regarding performers of phonograms under Art. 108.4 TRLPI. So far, so good. After all, according to the Directive on rental and lending (Art. 8), the remuneration right in favor of phonogram performers and producers is expressly qualified as a “single equitable remuneration.” However, when dealing with the performers of audiovisual recordings Art. 108.5 TRLPI not only fails to mention that it is “single equitable remuneration” but implies that each CMO is entitled to establish and collect the “applicable remuneration according to the general fees set by each collecting society.” This text (which only affects Art. 108.5 TRLPI; Art. 122.2 TRLPI still refers to a joint/single remuneration right) was introduced by Act 23/2006. The CMOs support that this amendment put an end to the compulsory “joint management” of the remuneration right for communication to the public (of performers and producers) of audiovisual recordings. It is to be expected that this inconsistency (for audiovisual recordings) is someday solved by case law or by a revision of the Act. In practice, EGEDA and AIE currently collect the remuneration jointly, (i.e. EGEDA collects for AIE as well), whereas AISGE goes its own way. It is interesting to notice that the tariff applied by EGEDA (and AIE) remained the same as before, when it also included the remuneration right of the performing artists (AISGE). See also R. Xalabarder (2013), op. cit. 1-138.
- 23.
Swiss Federal Copyright Act—9 October 1992 (LDA). Art. 47 (Joint tariff). See also D. Barrelet / W. Egloff (2008), op. cit. 285-287.
- 24.
As explained on the Swiss copyright website, “If only one repertoire is used e.g. music at concerts, the society responsible generally produces its own tariff. If several repertoires are used, e.g. in the private copying of radio or television broadcasts or corporate photocopying, the societies draw up joint tariffs.”
- 25.
Before then, only three joint tariffs existed: JT1 (cable retransmission), JT2 (retransmission of broadcasts) and JT3 (reception of broadcasts in public places).
- 26.
Authors of literary and visual works, publishers, available at: www.prolitteris.ch/ (accessed on 30 March 2016).
- 27.
Société Suisse des Auteurs, available at: www.ssa.ch/ (accessed on 30 March 2016).
- 28.
Cooperative Society of Authors and Publishers (music), available at: www.suisa.ch/en/home.html (accessed on 30 March 2016).
- 29.
Swiss Authors’ Rights Cooperative for Audiovisual Works, available at: www.suissimage.ch/ (accessed on 30 March 2016).
- 30.
Collecting Society for Neighboring Rights, available at: www.swissperform.ch/ (accessed on 30 March 2016).
- 31.
A list of all tariffs offered by Swiss CMOs, indicating which of them are joint tariffs and the designated CMO, available at: www.swisscopyright.ch/en/income-and-distribution/tariffs/overview.html (accessed on 30 March 2016).
- 32.
The DUN is an umbrella organization of users of authors’ rights, see http://www.dun.ch (accessed on 30 March 2016). When the license affects the end consumer, consumer protection associations may also participate in the negotiations.
- 33.
The 13 joint tariffs participated by all 5 CMOs are managed as follows: ProLitteris is the designated payment office for 4 of them: JT6 (rental in libraries), JT8 (reprography), JT9 (internal networks) and JT10 (blind and handicapped people); SUISA for 3 of them: JT 3 (background broadcast reception and public viewing), JT 4 (private copying) and JT 5 (rental); SUISSIMAGE manages 4: JT 1 (cable redistribution), JT2 (retransmission via internet servers), JT 7 (school use), JT 12 (set-top-boxes); and Swissperform is the central managing office for 2: JT 11 (archive recording by broadcasters) and JT 13 (orphan rights).
- 34.
For instance, SUISA manages JT5 (rental) despite only getting 23 % of its revenues and ProLitteris manages JT 6a (rental in libraries) despite only getting a 35 % of its revenues, while SUISSIMAGE gets respectively 60 % and 38 % of these revenues. See the amounts distributed in 2014 for JT5 and JT6a, available at: www.swisscopyright.ch/en/income-and-distribution/money-flows/key-figures.html (accessed on 30 March 2016).
- 35.
Some examples of annual amounts distributed among CMOs for several joint tariffs, available at: www.swisscopyright.ch/en/income-and-distribution/money-flows/key-figures.html (accessed on 30 March 2016).
- 36.
Administrative costs of Swiss CMOs for 2014 range from 4 % (Suissimage) to 23 % (ProLitteris) depending on the number of licenses managed, customers, members and employees, available at: www.swisscopyright.ch/en/income-and-distribution/money-flows/administrative-costs.html (accessed on 30 March 2016).
- 37.
The distribution criteria (regulations) for each CMO are approved by the Swiss Federal Institute of Intellectual Property (IGE).
- 38.
Available at: www.swisscopyright.ch/en/income-and-distribution/money-flows/example.html (accessed on 30 March 2016).
- 39.
Act 21/2014 of 4 November 2014, amending the TRLPI and implementing Directive 2012/28/EU on orphan works and Directive 2011/77/EU on phonograms term extension; BOE 268, of 5 November 2014.
- 40.
According to Art. 154.5 TRLPI, any amounts collected but undistributed (not claimed within 5 years) shall be used for several purposes (assistance, education, and re-distribution), including financing the one-stop shop; the minimum of 15 % set for each does not apply to the one-stop shop.
- 41.
A claim of unconstitutionality against this ventanilla única is pending at the Spanish Constitutional Court (# 681-2015) (BOE 58, 9 March 2015), submitted by the Socialist Parliamentary Group.
- 42.
Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market. OJEU L 84/72, 20 March 2014.
- 43.
A duty to contract (Article 29) is set on two conditions: there must be a request from a CMO that is not offering MTL, and the requested CMO must be representing the same category of online rights in musical works in one or more CMOs.
- 44.
For instance, it is unlikely that the implementation of this Directive alone will simplify the Spanish licensing scenario—as sketched in Sect. 2—for the online exploitation of phonograms and audiovisual recordings.
- 45.
In Israel, the equitable remuneration of performers for communication to the public of their performances is subject to compulsory collective management of several CMOs, which is assigned exclusively to one CMO, namely the one that represents the largest number of performers. This organization “shall also transmit the royalties to performers and holders of performers’ rights who are not members in it” (sec. 3 Performers’ and Broadcasters’ Rights Law, 5744-1984), thus formally working as extended collective licensing. Courts have come to recognize de facto the Representative Organization of Performers in Israel as holding this status. See T. Greenman (2013), op. cit. 1-126.
- 46.
In its 11-12-2008 ruling (case C-52/07, Kanal 5 and TV4), the CJEU accepted that the application of a percentage of fees on these items was not per se contrary to Article 102 TFEU.
- 47.
For instance, the fees in the licenses granted by “clearance centers” are not negotiated, but simply calculated for each client, and based on the pre-existing licensing structures and fees of the CMOs. Any negotiation is done a posteriori through discounts and favored prices.
- 48.
For instance, Art. 46 Spanish TRLPI.
- 49.
The CJEU (C-192/04, C-245/00, C-572/13) has been establishing criteria to modulate the concept of “equitable remuneration”—especially when it is based on a percentage of gross revenues—such as the intensity and volume of use, the effective use of works, the amount of use, the audience indexes, and even by comparing the fees to other CMOs fees or to the remuneration agreed in exploitation contracts. See also C-467/08, regarding the meaning of “fair compensation” under the private copying limitation.
- 50.
For instance, Belgium: équitables et non discriminatoires (Art. XI.275).
- 51.
Fees cannot be applied differently without an objective justification, and especially not in a manner that has a negative impact on competition (when it causes a competitive disadvantage for the client).
- 52.
Management costs to be deducted from collected fees should be reasonable.
- 53.
For instance, Germany and Italy; National Reports ALAI International Congress 2015, available at: www.alai2015.org/en/national-reports.html (accessed on 30 March 2016).
- 54.
Swiss LDA Art. 60 “Principle of equitableness
a. When determining remuneration, account will be taken of:
b. the proceeds obtained from the use of the work, performance, phonogram or audiovisual fixation or broadcast, or alternatively the costs incurred in such use;
c. the nature and quantity of the works, performances, phonograms or audiovisual fixations or broadcasts used;
d. the ratio of protected to unprotected works, performances, phonograms or audiovisual fixations or broadcasts as well as to other services.
e. Remuneration normally amounts to a maximum of 10 per cent of the proceeds or costs incurred from the use of the copyright and a maximum of 3 per cent for related rights; however, it is determined in such a way that entitled persons receive equitable remuneration conditioned upon sound financial management for the administration of rights.”
- 55.
Art. 157.1b TRLPI adds: “… account will be taken of at least the following criteria:
a. the effective use of the repertoire within the whole activity of the user;
b. the intensity and relevance of the repertoire used within the whole activity of the user;
c. the amount of repertoire managed by the CMO;
d. the economic proceeds obtained by the user for the commercial exploitation of the repertoire;
e. the economic value of the service provided by the CMO to enforce the licensing fees;
f. the fees set by the CMO to other users for the same kind of use;
g. the fees set by similar CMOs in other EU member States for the same kind of use.”
References
Barrelet, D., / Egloff, W. (2008), Le nouveau droit d’auteur, 3rd ed., 285-287, Stämpfli
Greenman, T. (2013), Chapter 20: Israel, in: S. von Lewinski (Ed.), Copyright throughout the World, 1-126, Thomson Reuters
Xalabarder, R. (2013), Chapter 35: Spain, in: S. von Lewinski (Ed.), Copyright throughout the World, 1-138 Thomson Reuters
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Xalabarder, R. (2017). Simplification of Tariff Structures. In: Liu, KC., Hilty, R. (eds) Remuneration of Copyright Owners. MPI Studies on Intellectual Property and Competition Law, vol 27. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-53809-8_3
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