kernochan center for media law and the arts - columbia law school collective management of...
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Kernochan Center for Media Law and the Arts - Columbia Law School
Collective Management of Copyright: Solution or Sacrifice?
New York, 28 January 2011
Giuseppe Mazziotti
University of Copenhagen, Faculty of Law
Alternative licensing models for online music services in the EU
Which roles for customized collective management and independent
management?
Why are online music services still undeveloped in Europe?
Digital sales: 15% of total music sales (in the US it is 44%)
Music downloads: ¼ of the US downloadsInternet broadband: 24% of the EU
population had an access line subscription at 1 July 2009
Mobile broadband: 4,2% (July 2009)
A EU “Digital Single Market”?
No single copyright system (27 sub-systems, instead)
Philosophical and cultural diversities (copyright vs. droit d’auteur)
Different rules for transfer and management of copyright developed at national level by collecting societies (most of which have acted as authors’ “unions”)
Types of collecting societies
Public or semi-public institutions enjoying a legal or de facto monopoly and pursuing cultural and solidarity goals beyond the main purpose of copyright management (continental-Europe: e.g. France, Belgium, Germany, Italy, Spain, etc)
Fully private entities acting in a (supposedly) free market for licensing services with the exclusive objective to maximize their members’ revenues and without pursuing any social or solidarity goals (e.g. PRS in the UK)
Online music services and copyright
Commercial users need authorizations from different right-holders Authors and Composers/Publishers Record Producers/Performers
Collective management was well developed for the clearance of author/publisher rights
Collective management for so-called neighboring rights is much more undeveloped (record producers’ agents)
Each collecting society represents a domestic (i.e., national) repertoire
By courtesy of Violaine Dehin
How has it worked off-line so far?
Territory-based model (local and foreign repertoire)
CS _A CS _B
Reciprocal representation
Commercial User
Right holders
(Authors & Publishers)
Right holders
(Authors & Publishers)
License
TERRITORY A TERRITORY B
- CS (A) deductions - CS (B) deductions
- CS (A) deductions
World Repertoire
By courtesy of Violaine Dehin
An alternative system for the UK music repertoire: mechanical rights
CS _A CS _B
Publisher
Commercial User
Sub-Publisher
License
Worldwide Repertoire
- CS (A) deductions
TERRITORY A TERRITORY B
- Sub-publisher commission
Authors
- Publisher share
Sub-publishing agreement
Recent EU Commission actionDG Internal Market
Recommendation 2005 • Targeted copyright and
related rights alike• Right-holders’ freedoms:o join any collecting society
(no economic residence)o select territorial scopeo transfer online rights • No involvement of the EU
Parliament (soft law)
DG Competition (2008)
Cisac Decision• Mutual representation
agreements (public performance rights)
• No economic residence and no territorial exclusivity clauses in the bilateral agreements
• No territorial segmentation for online transmissions
Radical change of licensing structure
Global aggregated music repertoire
Strict country-by-country basis
Same licensing conditions and fees for all repertoires
New scenario
Mono-repertoires
EU-wide licensing
Different licensing conditions and different prices for each repertoire
Centralized online licensing trends
Major music publishers• CELAS (EMI+GEMA+PRS)• PAECOL (SONY+GEMA)• PEL
(SGAE+SONY+Peermusic)• PEDL
(WARNER+PRS+SACEM+STIM+BUMA STEMRA)
• DEAL (SACEM+UNIVERSAL MUSIC)
CSs’ joint repertoires
• ARMONIA (SACEM+SGAE+SIAE)
• SCANDINAVIAN+BALTIC CSs
• SGAE+SPA
Unsettled or troublesome issues
Uneasy withdrawal of online rights• Mechanical (easy only for the UK music repertoire)
• Performing rights (not until January 2010)
Split copyright (multiple right-holders)• It concerns 40% of musical works. In case of distinct
agents ‘Tragedy of the anti-commons’ (Heller)
Legal status of these new agents• (e.g., is CELAS a collecting society under German law?)
Non-exclusivity of the mandates (fictitious)
Individual licensing: a key role in the management of sound recordings
EU-wide licensing of all rights (one stop shops): for whom?
What about cultural diversity? European Parliament, Study (2009)
Over-centralization of licensing power and reinforcement of dominant positions
High risks of marginalization for the music repertoires managed by small and medium collecting societies (even more so with the predictable growth of digital sales)
Dominance of the UK music repertoire (numbers) Music sector (worldwide rankings): 1st in performance rights; 3rd
in physical and digital sales Revenues from foreign CSs: 60,9% of total revenues came from
other EU Member States; 15% came from the US (2008) Exchange flows: PRS revenues coming from other EU CSs were
6,71 times higher than what PRS distributed to EU CSs
From a very different perspective
Start-up companies
Beatpick (UK – Italian initiative)
Flattr (Sweden)
Magnatune (US company active also in the EU)
Individual “open-access” management
Members of traditional collecting societies (they are increasingly allowed to split the licensing of on-line and off-line uses)
Non-members of CSsNew collective rights
managers combining licensing approach (e.g.“freemium” models)
Winners and losers
Winners Major music publishers and
their conglomerates Big (or widely
representative) national collecting societies
Commercial users interested merely or mostly in the “must-have” repertoire (i.e., the UK repertoire)
Start-ups (Beatpick, Flattr ..)
LosersMedium- and small-size
collecting societies (and the authors they represent)
Medium and small music publishers
Commercial users interested in a great variety of repertoires (e.g., iTunes or YouTube)
Future scenarios
Copyright unification at EU level (?)A new directive on copyright collective
management (hopefully)“Country of origin” principle to determine
applicable laws for EU-wide licensing (?)Global repertoire database (embodying
freely available and non-proprietary electronic rights management information)
