ICMP/CIEM POSITION PAPER IN RELATION TO THE COMMISSION STAFF WORKING PAPER ON THE REVIEW OF THE EC LEGAL FRAMEWORK IN THE FIELD OF COPYRIGHT

Transcription

1 POSITION PAPER IN RELATION TO THE COMMISSION STAFF WORKING PAPER ON THE REVIEW OF THE EC LEGAL FRAMEWORK IN THE FIELD OF COPYRIGHT AND RELATED RIGHTS, DATED 19 JULY 2004, SEC(2004) 995 I. INTRODUCTION 1.1 The European Commission (the Commission ) has invited interested parties to submit their comments on the Commission's suggested update of the European copyright and related rights legislative framework. The Commission indicates that its intent is on the one hand to improve the existing legislative provisions by increasing their consistency and simplifying them, and on the other hand to analyse whether, notwithstanding the current legislation, there remains shortcomings in the functioning of the Internal Market which call for further harmonisation. The consultation by the Commission is on the basis of the Commission Staff Working Paper on the Review of the EC Legal Framework in the field of Copyright and Related Rights, dated 19 July 2004, SEC(2004) 995 (the Working Paper ). 1.2, the umbrella trade organisation which speaks for music publishing, thanks the Commission for this opportunity to express the consolidated views of European and international music publishers and of the composers and lyricists whom they represent on the legislative update suggested by the Commission. The members of comprise nearly all existing national, regional and international music publishers trade associations, which themselves represent the vast majority of music publishing companies in Europe and in the world. These companies include most of the independent music publishers, many of which are small and medium size enterprises, as well as the music publishing companies which remain affiliated with major record companies. Together these music publishing companies represented by generate almost all of the copyright turnover in musical works in Europe and are at the source of most of the investment into music compositions and lyrics created in Europe and disseminated through Europe and abroad. 1 A list of the national European members is attached. 1 Music publishers invest in the creation of music, publish and administer all genres of music, from serious to popular, in all forms (audio, audio-visual, graphic). They are at the source of the creation of musical works and of their dissemination in all its diversity. Music publishers work with and for the composers and lyricists, generally named the authors whom they represent and support, and from whom they derive their exclusive copyrights in musical works by virtue of the effect of music publishing agreements in compliance with applicable copyright and contract laws; the authors and music publishers together constituting the music creative community. Pursuant to the music publishing agreements, music publishers have the function of helping authors bring their music to the market in consideration for a legitimate fee. Music publishers have done so by taking the financial risks associated with nurturing authors and their works and developing very early in time, on behalf of the authors, an exclusive rights licensing business. Licences are negotiated with, and granted to, those in the industry or distribution chain who want to use music commercially for specifically identified purposes.

2 2 II. GENERAL COMMENTS 2.1 commends the Commission for suggesting to improve the operation of the acquis communautaire in the field of copyright and related rights as well as for reviewing its coherence. 2.2 Just as the Working Paper does not pre-empt any forthcoming reports by the Commission, the comments set forth herein by which are based on the Working Paper are not exhaustive and are subject to further consideration, as and when there will be developments in relation to these issues under consideration or in relation to other issues which may arise in respect to copyright and related rights. 2.3 Codification may be a way to simplify the presentation of the law provided that this will not generate any change in substance. It is unclear why such codification should relate to three of the seven Directives and whether codification is really an improvement. III. UPDATING THE CURRENT LEGISLATION 3.1 s comments on the proposed improvement of the existing legislation are limited to two vertical issues of direct concern to the music creative community in the Term Directive. In respect to those horizontal and other vertical issues which this paper does not address, can be deemed to either agree with the Commission or not to oppose its views, or to continue its assessment. 3.2 Particularly, the issue regarding the duration of related rights addressed in Section of the Working Paper is under review by. 3.3 The first vertical issue relates to the observation by the Commission in Section of the Working Paper that the lack of harmonisation of the criteria used in the European Union for calculating the term of protection of co-written musical works 2 has a negative impact on the harmonisation of copyright protection for musical works in the Internal Market and is therefore of a nature to hamper the proper functioning of the Market. The Commission quite rightly concludes that there is room for improvement and that the full harmonisation of the protection of musical works in the European Union should be achieved by way of an amendment to the Term Directive which would clarify the criteria for calculating the term of protection of co-written musical works in a manner similar to that already established by the Term Directive for cinematographic and audio-visual works; i.e. with a term which would run as of the death of the last surviving person having contributed to the creation of the musical work. fully supports this proposed improvement of Community legislation. At the time of the passing of the Term Directive, had already indicated that the Term Directive would fall short of complete harmonisation since co-written works would continue to have differing terms of protection and that the lack of a harmonised rule for the calculation of the term of protection for co-written musical works would result in 2 Musical works include operas, musicals, dramatico-musical works, songs and any other musical compositions with or without words.

3 3 inconsistencies in the Internal Market which would be likely to generate distortions in the Market. Essentially, a song, a dramatico-musical work or any musical composition with words, written by more than one writer, which is often the case, is protected for different periods in Member States since the criteria actually used when calculating the term of protection vary from one Member State to another depending on whether the work qualifies as a joint work or not. For example, while France and several Member States 3 consider most co-written songs to be joint works and provide uniform term protection for musical compositions so that both words and music are protected for 70 years following the date of the death of the last surviving contributor to the work without regard to the nature of the contribution to the work, other Member States 4 tend to classify songs as non-joint works and it is then generally presumed that there are separate copyrights in the words and in the music of a work, with separate credits to each contributor and separate terms of protection running for each element of the musical work. As a result, the words or the music are likely to enter the public domain at different times throughout the European Union and there are sometimes considerable differences in the periods of protection. For example, a song first published in France in 1930 co-written by a composer who lived until 1935 and a lyricist who lived until 1985 will be protected in its entirety in France using the local interpretation of joint works, and in other countries applying the same definition, until However, in the United Kingdom or in Germany although the lyrics will be protected until 2055, the music may well be deemed to fall in the public domain in 2005 (and the same would apply the other way around if the death dates were reversed). This lack of harmonisation affects a voluminous list of songs and generates substantial practical difficulties which have the effect of creating distortions in the Internal Market. Those who contribute to the writing of a song will have this problem in Europe even if they do not face the issue in their home country since they will be affected in other Member States. Differing terms of protection create barriers to the free flow of trade within the Internal Market. For example, the marketing of an instrumental version (or if it is the lyrics that have fallen in the public domain, of a new lyric version) may be possible in a non-protecting State without the consent of the composer (or of the lyricist having written the original lyrics) whose work remains nevertheless protected in the other States applying uniform protection. In addition to diminishing the value of the music (or of the original lyrics) where the work is still protected, the sale of the instrumental version (or of a new lyric version) in that Member State where the original work is still protected is as a matter of principle prohibited. Thus, these different terms of protection generate a situation where the principle of free flow of goods in the market-place may be contrary to the legitimate exercise of the copyrights in the musical works in the States applying uniform term protection when the goods incorporate co-written copyright musical content (such as CDs, DVDs, videos, and other media products, as well as printed material). Moreover, this situation where a work is protected in some Member States and certain of the work s elements are not protected in other Member States gives rise to exploitation problems 3 Among the Member States which treat musical compositions with words as joint works, there are Belgium, France, Greece, Italy, Portugal and Spain where musical compositions with or without words are protected as a joint work without regard to separability. 4 Among those States which tend to separate co-written contributions in a musical work are Germany, the United Kingdom and Sweden.

4 4 and creates difficulties to control the use of those elements which remain protected in some Member States and are not in others. Hence, there are limitations to the development of transborder licences within the European Union when different terms of protection apply to the elements of co-written works. For example, this does not facilitate the ability to license transborder services within the Community (including broadcasting and other forms of communication to the public of sound and video images incorporating musical works, with the difficulties related to the broadcast via satellite, or to the simulcast or making available, of material which is unprotected in certain States into States where those rights are protected), nor does this facilitate the ability to grant Community-wide synchronisation rights. In addition, these differing terms of protection substantially distort the flow of distributions to the creative community in music. Parts of a work can attract royalty in some territories and not in others and these differences have a significant impact on the amount of income earned. This results also in distorting investment potential and impacts negatively on investment decisions due to the lack of legal clarity. Last but not least, the inconsistency in the criteria to calculate the term of protection for musical works in the European Union complicates considerably the administration of the rights in musical works (with technical difficulties in tracking the protected works). In summary, the complete harmonisation of the term of copyright has not been achieved in respect to musical works which has the effect that there remain distortions in the European market-place in respect to exploitation of, and investment in, copyright musical works and a level-playing field is not completed in the Internal Market in respect to content incorporating copyright musical works. After due consideration and consultation, the option suggested by the Commission to apply a single criterion to calculate the term of protection of musical works, which is analogous to that already established by the Term Directive for cinematographic and audio-visual works, as of the death of the last of the individuals having contributed to writing the musical work or an element of the work, whether a composer or a lyricist, whether he or she qualifies as a coauthor, will have the advantage of simplicity, of being based on the acquis communautaire, and of achieving the harmonisation of the term of protection for co-written musical works in the best interest of the Internal Market while preserving the existing rights of those holding these rights in the musical works. The amendment should indicate that each contribution and each part of the contribution should enjoy the protective term even if used separately. 3.4 The second vertical issue in respect to the Term Directive relates to the protection of critical and scientific publications. The Commission reminds in Section of the Working Paper that Article 5 of the Directive optionally allows Member States to protect critical and scientific publications of works which have fallen into the public domain for up to 30 years. This provision is crucial in so far that it allows Member States to specifically protect publications which through a critical and/or scientific effort allow the revival and the preservation of societies' cultural and/or scientific heritage. These publications require substantial investment in time, effort and money by the writer, a scholar or a musicologist, and by the publisher, for the benefit of all. The Term Directive has quite rightly given the option to Member States to provide for a specific protection in consideration for the investment. In addition to those States which already provide for such protection, it is expected that the implementation of Article 5 of the Term Directive will be considered in the other Member States which have not yet introduced this provision into national law. This

5 5 flexible approach offered by the Directive will thus allow harmonisation to move forward while allowing the laws and case-law of each Member State to apply with their specificities. IV. ASSESSMENT OF ISSUES OUTSIDE THE CURRENT ACQUIS 4.1. In the Working Paper, the Commission addresses six issues which have not been harmonised to date and indicates that the list is not closed if other issues need to be brought to the Commission's attention. At the stage of this initial consultation, 's comments are primarily focused on the issues addressed in the Working Paper. These are subject to further comments which may have to be made as matters develop, as reports on the implementation of particular Directives are delivered and if other points are brought forward. In addition, suggests that the Commission might want to consider two additional issues listed in 4.8 below. 4.2 In respect to originality, as indicated by the Commission, there seems to be no convincing evidence that the lack of strict harmonisation has caused any problems for the functioning of the Internal Market. Therefore, agrees with the Commission that legislative action does not appear necessary at this stage. 4.3 On ownership, as indicated by the Commission the different concepts within the European Union on the actual allocation of ownership most often follow a similar path in all Member States. Thus, agrees with the Commission that there is no Internal Market need for a global harmonisation of ownership rules. 4.4 As indicated by the Commission, the term public for the purposes of the right of communication to the public or of that of making available to the public should remain a matter determined by national legislation and case-law. 4.5 The issue relating to points of attachment for related rights holders is under review by. 4.6 As indicated by the Commission, there is neither in the analogue, nor in the digital environment, any evidence that disparities in moral rights protection have a negative impact on the Internal Market. Therefore, continues to believe that there is no need to harmonise moral rights protection in the European Union and agrees with the Commission's position that in practice, the European legal framework provides an adequate level-playing field for the protection of moral rights. 4.7 clearly supports the Commission's conclusion that it is not appropriate to change the copyright exhaustion regime and urges the Commission to promote the closure of this debate. Territoriality is one of the fundamental principles of copyright. Investment into creativity and diversity relies on such territorial approach. Because market conditions are quite different at international level, international exhaustion would generate substantial distortions in the market-place. These would put the income to the creative community in the European Union as well as its ability to re-invest into creation in Europe at jeopardy while there is no evidence

6 6 that international exhaustion would have any direct benefit to the consumer in the Internal Market. 4.8 The Commission might want to consider adding to its list of points for consideration, the option to further coordinate with the European Council in respect to the harmonisation of criminal sanctions in the context of enforcement and the possibility to coordinate a Community-wide action to promote copyright awareness programs. V. CONCLUSION 5.1 agrees with the Commission's conclusion that as far as the existing acquis communautaire is concerned, only minor adjustments are necessary at the moment; among them that of harmonising the criteria for calculating the term of protection for co-written musical works is crucial. 5.2 also agrees with the Commission's conclusion that at present further legislative action at Community level is for the most part unnecessary. However, the Commission might want to consider the two points listed in 4.8 above regarding the harmonisation of criminal sanctions in the context of enforcement and the coordination of a Community-wide action to raise copyright awareness. 5.3 reserves its position in respect to any forthcoming reports on the application of a particular Directive, to any developments in relation to the issues discussed in the Working Paper and herein, and to any new issues which may be brought forward in relation to the harmonisation of copyright and related rights. *** Contact for Correspondence and Information: tel : # fax : # @compuserve.com Mailing address: 47, rue de Turbigo, Paris 75003, France Seat : 6, rue de Bourg, Lausanne, Switzerland

7 7 LIST OF MEMBERS IN THE EUROPEAN UNION NATIONAL MUSIC PUBLISHERS ASSOCIATIONS IN THE EUROPEAN UNION - Musikverleger Union Österreich (MUO) - Union Royale Belge des Editeurs de Musique (URBEM) - Svaz Ceskych Hudebnich Nakladatelu (SCHN) - Dansk Musikforlæggerforening (DMFF) - Suomen Musiikki-kustantajat ry (FMPA) - Chambre Syndicale des Editeurs de Musique de France (CEMF) - Chambre Syndicale de l'edition Musicale (CSDEM) - Deutscher Musikverleger-Verband e.v. (DMV) - Music Publishers' Association of Ireland (MPAI) - Hungarian Music Publishers' Association (HMPA) - Unione Editori di Musica Italiani Associati (UNEMIA) - Vereniging van Muziekhandelaren en -Uitgevers in Nederland (VMN) - Polish Music Publishers (PMP) - Polish Music Publishers' Association (PMPA) - Música e Video, Lda (VIMUSICA) - Organizacion Profesional de Editores de Musica (OPEM) - Svenska Musikförläggareföreningen (SMFF) - The Music Publishers' Association Ltd (MPA UK)