MAKING AVAILABLE, COMMUNICATION TO THE PUBLIC & USER INTERACTIVITY

AN ANALYSIS OF THE APPLICATION OF COMMUNICATION AND PERFORMING RIGHTS TO LICENSED MUSIC STREAMING SERVICES AND THE SUBSEQUENT IMPACT ON PERFORMERS

FIONA MCGUGAN

OCTOBER, 2015

INSIGHT PAPER

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Contents Executive Summary ...................................................................................... 3

Author’s Note ................................................................................................. 6

Foreword........................................................................................................ 7

About MusicTank ........................................................................................... 8

About The Music Managers Forum And The Featured Artists Coalition ...... 9

About This Paper ......................................................................................... 10

Introduction .................................................................................................. 11

The Shift From Ownership To Access ........................................................ 13

The Development Of Communication To The Public ................................. 16

The Making Available Right......................................................................... 19

Where Does Equitable Remuneration Apply? ............................................ 21

The Implementation Of Communication To The Public, Making Available And Equitable Remuneration In EU Law .................................................... 23

Making Available And The Interactivity Of Streaming ................................. 25

The Practical Impacts On Performers ......................................................... 27

Recommendations....................................................................................... 29

1. Precision And Clarification In The EU Directive And WIPO Treaty ....... 29

2. A New Deal For Legacy Contracts ......................................................... 30

3. Collective Licensing For The MA Right .................................................. 30

4. Compulsory Licensing For First Reproductions ..................................... 32

Conclusion ................................................................................................... 33

Bibliography ................................................................................................. 35

References .................................................................................................. 38

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Executive Summary One of the most prevalent and recurring topics of recent times has been that of

changing consumer behaviour characterised by an increasing shift away from

ownership towards access models of music consumption, specifically streaming

services.

The rate of conversion (too fast or too slow), the price point (too high or too low), and

whether it is cannibalising or stimulating commerce in other areas are just some of the

points of contention between the various parties.

One such area of dispute is the Making Available Right.

Forgetting the front-of-house economics of the streaming model for a moment, it is

important to examine the activities behind the scenes, legally speaking, both pre and

post-digital, to understand fully how the rights of authors and performers have changed

and how they make money from online distribution. This is the aim of this paper.

The creation of the Making Available Right initially at a global level through the WIPO

Performances and Phonograms Treaty (WPPT) and thereafter, the European InfoSoc

Directive, before each individual State implemented it, is a convoluted process.

Its intention was to account for digital works accessed by a user “at a time and a place

chosen by them”. However, omissions at each stage of legislation are caused by the

uncertainty rooted within the WPPT where WIPO admits that “It is understood that [the

WPPT] does not represent a complete resolution of the level of rights of broadcasting

and communication to the public that should be enjoyed by performers and phonogram

producers in the digital age. Delegations were unable to achieve consensus on different

proposals for aspects of exclusivity to be provided in certain circumstances”.

This paper demonstrates a number of disparities with this right including the fact that it

has been implemented in many countries, including the UK, as a subset of the

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Communication To The Public right (CtoP), yet it is not treated in a similar fashion to

this right, except, sometimes, in the case of authors.

Additionally, the scope of the right varies with each type of creative work, is subject to

differing territorial interpretation, and took many years to define through case law,

implying that the original language with which the right was conceived was perhaps

ambiguous. Indeed, has it yet been defined? Many would argue that it has and that it

applies specifically to on-demand, digital content. Whether it is effective in delivering

the intention of the law – a fair balance between performers and rightsholders - remains

to be seen.

This is a complex area of the law, best explained in terms of ‘performer approvals’ and

‘performer ER’ paid on ‘performing rights’ income (I credit Chris Cooke for this

explanation that he so eloquently lays out in “Dissecting The Digital Dollar”).

Performer approvals apply to any artist involved in the making of a sound recording

and consist of controls over that sound recording (similar to the controls enjoyed by the

copyright owner, which will usually be a record label). These are the rights that are

generally assigned to the record label by the Featured Artist through their recording

contract. Performer ER on the other hand, is unassignable and applies to the

exploitation of performing rights i.e. public performance and communication.

ER - Equitable Remuneration - is a guaranteed remuneration right that sends income

directly to the performer or author. It is important to note that ER is generally a fifty per

cent split, but does not have to be - it just means that it should be fair. The Making

Available right is the only performing right that does not have performer ER applied to it

(even though on the publishing side, the collection societies have treated MA in the

same way as the other performing rights).

The debate around the Making Available right is closely linked with the huge variety in

business models that offer diverging levels of consumer interactivity. Many say that ER

should apply to radio-style models such as Pandora and Spotify’s radio feature as they

clearly use the communication rights of performers, however record labels argue that

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even minor evidence of interactivity such as the ability to pause or skip a track

determines that these services fall under the Making Available right and don’t constitute

a Communication to the Public, under which ER would apply (akin to broadcast radio or

webcasting). Conversely, on the songwriters side, ER applies to both interactive and

non-interactive services.

Therefore, and perhaps unsurprisingly, the single biggest issue this paper found is that

where ER is not applied to Making Available and where Making Available is becoming a

prevalent communication and performer right as consumer uptake in streaming services

grows (e.g. the UK), many performers including both Featured Artists and Session

Musicians are generally not seeing the same level of increase in digital revenue enjoyed

by so many of their partners.

Several changes in this area could go a long way to clarify Making Available including

harmonisation at European level that better advises individual states on the best way to

implement the right and define its parameters. More controversially perhaps,

compulsory licensing or applying ER to the MA right has been suggested. Several

Member States have in fact already supplied performers with a non-assignable

remuneration right that sits alongside the MA right, however, it appears that it is too

early to decipher whether this has benefitted performers or not.

The debate over whether performers would prefer their record labels handling their

entire MA-related income or collection societies taking ownership of a part of it is a

difficult one. Whilst UK collecting society PPL arguably sets a high bar for distribution

and transparency, sadly, this is not always the case throughout Europe.

In summary, the clarification of the origins of Communication To The Public and the

Making Available rights as well as the four recommendations in the paper kickstart an

urgent debate to ensure that those with little negotiation power fairly share in the

evolution of any new market that exploits their performances.

____________________________________________________________________

The forthcoming MusicTank panel debate - Creators’ Rights In The Digital Landscape, Tue 10th

November -

will explore many of these issues and their nuances as well as the recommendations of this paper to

consider what might be a realistic course of action, should it be found that one is needed.

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Author’s Note

This paper started life as an assessment for the Technology, Rights and the Law

module as part of my Entertainment Law LLM course work at the University of

Westminster in the academic year 2013/14. It has since been updated to include recent

developments in both the music industry and IP law and comes at a time of heightened

concern and discussion about the licensing of digital platforms, in particular, music

streaming services.

As such it complements the recent publication of the MMF’s Digital Dollar report, which

for the first time, lays out the fractured landscape of digital music licensing and builds on

Just A Click Away: How Copyright Law Is Failing Musicians – a short paper intended

to demonstrate the legal mechanisms that occur behind each consumer 'click' on

streaming platforms and how the payment structure to labels, publishers and artists can

change with each one. All of these papers have been published concurrently.

I would like to thank all those who gave guidance and support in preparing this paper,

including Brian Message, Chris Cooke, Chris Ellins, Danilo Mandic, Guy Osborn, Nick

Yule, James Barton, Jenny Tyler, Jon Webster, Jonathan Robinson, Keith Harris, Paul

Pacifico and Sandie Shaw, and to family and friends for their unfailing support and

encouragement.

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Foreword

Fiona McGugan’s paper is an important intervention looking at the nuances and

intricacies of creators’ rights in the digital age. Drawing both on her insider status

within, and in-depth knowledge of, the music industry and her academic expertise, she

has produced an important and incisive overview with some concrete proposals for the

future

Fiona continues a fine tradition of exemplary work being produced as part of the

Entertainment Law LLM at Westminster Law School.

Fiona’s timely and illuminating piece follows in the footsteps of previous graduates who

have published work produced on the LLM in myriad journals and edited collections.

Chris Ellins Course Leader, and Danilo Mandic Research Fellow

Centre for Law, Society and Popular Culture, University of Westminster

The quality of work produced by our students never ceases to delight and humble me,

and of which this paper is a fine example. Fiona elicits much food for thought,

particularly around issues of ownership and access, and future implications that the

music industry would do well to heed.

Professor Guy Osborn, Co-Director

Centre for Law, Society and Popular Culture, University of Westminster

Entertainment Law LLM

University of Westminster’s Entertainment Law LLM combines academic analysis with

the commercial practice elements of entertainment law. Entertainment is one area that

we can all associate with in some shape or form, and the interaction of this exciting

subject with the law produces an interesting and eclectic mix. The diverse nature of

entertainment law paves the way for a number of specialisms, all of which are

underpinned by the issues of contract and intellectual property.

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About MusicTank MusicTank is a pre-eminent information hub for UK music business, addressing change

and innovation through informed debate, objective analysis and industry engagement.

Established in 2003, MusicTank has built an enviable reputation for its on-going and

unique programme of think tank debates, events and conferences, a natural extension

of which is its delivery on incisive reports commissioned from key industry figureheads.

MusicTank was shortlisted for the 2012 Times Higher Education Leadership and

Management Awards - Knowledge Transfer.

Report Catalogue

Private Copying Of Music: A New Model For Artist Compensation Samuel Rudy, 2015 Moneyballing Music: Using Big Data To Give Consumers What They Really Want And Enhance A&R Practices At Major Record Labels Prithwijit Mukerji, 2015 Easy Money? The Definitive UK Guide To Funding Music Projects Remi Harris, 2013

The Dark Side Of The Tune: The Hidden Energy Cost Of Digital Music Consumption Dagfinn Bach, 2012

Remake, Remodel: The Evolution of the Record Label Tony Wadsworth with Dr. Eamonn Forde, 2011

Let's Sell Recorded Music Sam Shemtob, 2009

Meet The Millennials Terry McBride, 2008

Beyond The Soundbytes Peter Jenner, 2006

Become a MusicTank member today: musictank.co.uk

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About The Music Managers Forum

The Music Managers Forum represents over 400 artist managers in the UK, who in turn

represent over 1000 of the most successful acts on the planet. Since its inception in

1992, the MMF has worked hard to educate, inform and represent UK managers, as

well as offering a network through which members can share experiences, opportunities

and information. While this work continues, the MMF is also focusing more on providing

a collective voice in this time of change, giving real, meaningful value for members and

their artists, from helping to unlock investment and opening up new markets, to

encouraging a fair and transparent business environment in this digital age.

themmf.net

About The Featured Artists Coalition

The FAC is a collective of 4,500 artists who advocate for transparency in the music

business and a greater connection between artists and fans in the digital age. The

Featured Artists Coalition campaigns for the protection of UK performers’ and

musicians’ rights. Their aim is for all artists to have more control over their music and

have a fairer share of the profits generated in the digital age.

thefac.org

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About This Paper

Published by:

MusicTank Publishing

University of Westminster

Watford Road, Harrow,

Middlesex

HA1 3TP

If you have any comments about this paper we would love to hear from you:

musictank.co.uk/about/contacts | jenny.tyler@musictank.co.uk

First published London, October 2015

Copyright © 2015 Fiona McGugan

The copyright in this publication is held by Fiona McGugan. This material may not be copied or

reproduced wholly or in part for any purpose (commercial or otherwise) except for permitted fair

dealing under the Copyright, Designs, and Patents Act 1988, without the prior written

permission of University of Westminster. The copyright owner has used reasonable endeavours

to identify the proprietors of third-party intellectual property included in this work. The author

would be grateful for notification of any material whose ownership has been misidentified herein,

so that errors and omissions as to attribution may be corrected in future editions.

ISBN: 978-1-909750-08-1

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Introduction

A cross-section of industries have undertaken streaming as a content distribution model

including video games, television, film, radio and music and a variety of business

models have been launched.1 The most common of which are a mixture of advertising-

supported (providing free access for the user), and subscription (a flat-rate monthly fee

charged to the user providing additional benefits such as offline usage, unrestricted

access and mobile apps).2 Free access models that have become hugely popular, such

as YouTube3 have become a preferred method for music listening and discovery by

Generation ‘Z’.4 They have conditioned consumers into using on-demand content that

is accessed temporarily and never downloaded and owned by them. Alongside

YouTube, platforms such as Spotify,5 Deezer and Apple Music,6 have also become

leading models of licensed music distribution, all with the underlying concept of inducing

music consumers to listen to streaming music on-demand.7

The various models of streaming that are available imply distinct levels of user

interactivity with the content being consumed. Live and on-demand require different

initiation processes8 and it can be argued that on-demand streaming singularly contains

a subset of differential interactivities. For example, user control can extend to creating

personalised playlists, picking exactly which tracks they want at the exact time they

want, or they can initiate streaming radio, where they are fed tracks based on certain

genres or decades.9

But why is this important? Historical law has dictated the application of rights to content

consumed by the public in different ways. In some cases, it is supplied with an

exclusive right, where the rightsowner can control all licenses of the music10. In others,

the law sees fit to apply collective licensing to certain uses, ensuring that neutral

institutions licence works and pay rightsowners equitably.11 Collecting Societies purport

an ability to supply combined bargaining power, ensuring reasonable pay rates for more

vulnerable constituents.12

1 See

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HOWEVER, THE SPEED AT WHICH STREAMING TECHNOLOGIES ARE

GATHERING MOMENTUM IS LEAVING BEHIND GREAT GAPS IN LEGISLATIVE

SOLUTIONS FOR THE APPLICATION OF INTELLECTUAL PROPERTY RIGHTS.

This paper will begin by examining nuances of technological development that have

impinged upon the traditional role of the reproduction right, analysing its evolving

nature. The second part will examine the historical development of communication

rights that are beginning to overshadow conventional distribution and reproduction

rights as the consumption of music moves from an ownership model to an access one.

The third part of this paper will examine the application of communication rights to

streaming technologies and looks at a cross-section of EU Member States, comparing

and contrasting the various means of implementation. It also examines specific

examples of streaming models from the viewpoint of their licensing structures in relation

to the interactivity of the user. It will be argued that the paradoxes arising from

European case law and the contrasting implementation of Member States’

legislation have created confusion around the legal definition of a stream, both in

broadcast and on-demand contexts.

Finally, it examines the practical implications this has on performers, specifically

highlighting paradoxes present involving the nature of industry practice together with the

intentions of the law. It analyses whether, through current EU Law, equitable

remuneration13 is payable to performers in respect of certain types of digital media and

makes recommendations in light of this paper’s findings.

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13

Legally spe aking, equi table re mun era tion, w hich mea ns e qual pay, c an h ave a m ore nar rowly defin ed pur pose i n th e busi ness envir onm ent. A com mo n leg al revi ew of the ter m at tem pts t o ens ure tha t re mun era tion rep rese nts good fait h pr actices and is pr opo rtio nate to t he p erf orm ance of t he in dividu al. In the music i ndus try, Eq uita ble Re mun era tion refe rs sp ecifically to th e fifty pe r cen t split betwe en perf or mers an d lab els an d be twee n pu blishe rs an d writ ers thr oug h PPL an d PRS res pectiv ely. The le gal t erm eq uitabl e re mu ner ation ref ers t o th e p rinciple of fai r pay .

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The Shift From Ownership To Access

Streaming technologies are rapidly becoming a dominant mode of consumption of

digital content.1415 It can be argued that the sharp incline seen in music streaming

statistics in the IFPI Digital Report 201416 hinges on the ‘real-time’ aspect of

consumption.17 From the perspective of the end user, it seems that downloading tracks

has now become the less necessary or desirable option for access to content.18

Coupled with the increased availability of broadband connection from almost anywhere

in the western world, real-time, on-demand access to many forms of content has

become intrinsic in people’s daily lives.19

In tandem with the growing trend of streaming is the increase in users’ spending on the

available licensed subscription services and using ad-funded models for free. 20 In

2013, subscription services’ revenues increased by 51 per cent enabling Europe’s

music market to expand for the first time in twelve years.21 Global revenues from

subscription and advertising-supported models accounted for 27 per cent of digital

revenues in the same year, up from 14 per cent in 201122 and the number of

subscribing users increased by 250 per cent between 2010 and 2013.23

Two years on in 2015, exclusive IFPI-commissioned research demonstrated that

consumer engagement with licensed music DSP’s is high with 69 per cent of Internet

users accessing a licensed service within six months over 13 of the world’s leading

music markets.24 This accounts for significantly more people who say they use

streaming services more than they did 12 months ago.

The traditional method of online consumption of music involves the transferral of

technologically protected files through downloading25, a requirement of which is that a

full copy of the file is permanently stored on a device, which the user can then access

repeatedly at their discretion.26 Streaming, on the other hand, introduces the ‘real-time’

notion that users no longer need to own a copy of the content in order to enjoy it.27 In

contrast to downloading, the act of streaming involves the constant transmission and

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receiving of data between the host and the user via an Internet connection.28 The

storage element of streaming only ever occurs on a temporary basis using buffering29

and is a sequential storing motion30, which does not imply the making of ‘copies.’31

Therefore, streaming is a transient act and not necessarily an act of reproduction in the

legal sense32.

From a copyright perspective, the key distinction between the models of

ownership of, and access to, digital files has marked a significant shift in the way

the reproduction right is regarded.33 This is partly due to the fact that the access

model applies to any form of content and arguably does involve an act of reproduction,

however transient or incidental.34 Hence it has been observed that the “reproduction” in

a digital environment is “no longer a good predictor of whether there will be a

distribution to the public”35 and it is thus difficult to consider the reproduction right as a

‘core’ copyright.36 For example, web pages are copied into temporary caches so that

browsers can display them quickly, programs are copied from hard drive to RAM so that

they can run and file systems are backed up to cloud services to ensure they are

protected. Digital music is one of the most versatile forms of content and can be copied

by the user in various forms and on various devices. The point is that, in computers and

networks, copies are made constantly, often without explicit instruction by or even

knowledge of a particular user and without any evidence that there is an intention to

distribute that copy further.37 The relevance of this seismic shift within the world of

music is integral. However, before examining the legal implications of this impact on

music distribution, it is necessary to clarify the technological nuances of streaming.

In the distribution of digital works, streaming has been classified as two separate

entities.38 Live streaming involves delivering content from a single source to multiple

users concurrently in real-time, also known as ‘web-casting’ or ‘simulcasting’39.

Examples of usage are in the form of conferences, live shows and concerts, university

lectures as well as internet-produced content, comparable to traditional radio or

television.40 Distinct from live streaming, on-demand streaming permits the user to

initiate the transmission of content.41 The nature of on-demand requires data storage

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on a central server from where the content is streamed at the users request,42

conversely live streaming demands an original source, from where data is captured,

processed into a digital signal and transmitted to numerous users at the same time

which is only accessible at the time which it is broadcast.43

Within the context of streaming, the undermining of the reproduction and distribution

rights by the technological process brings the application of the communication right into

focus.44 HOWEVER, CONSIDERING THAT THE WAY OF COMMUNICATING THE

CONTENT TO THE PUBLIC IS DIFFERENT, ON-DEMAND AND LIVE STREAMING

(‘BROADCAST’) CONSEQUENTLY OPERATE DIFFERENTLY UNDER THE

COMMUNICATION RIGHT. De rigueur analysis of the development of the law in terms

of the new medium of streaming content is necessary in order to identify the practical

implications the law has on performers.

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42

Ibid. 43

Ibid. 44

Walter, M. M., & Vo n Lewi nski, S. (201 0) Eu rop ean Copy right Law: A C om ment ary, Oxfo rd U niversit y Press , Oxfo rd

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The Development Of Communication To The Public

The right of ‘communication to the public’ (CtoP) has been embroiled in a tangled

web of law making from its very inception. It first appeared in the 1928 (Rome)

Revision of the Berne Convention to account for the advent of radio and TV

broadcasting. ‘Berne Authors’45 - which included performers - were granted an

exclusive right over their own works to communicate them to the public.46 WIPO’s guide

to the Berne Convention, published in 2012, reflects that the original wording of CtoP

was “slightly muddled.”47 The right was later revised in the Brussels edit of the Berne

Convention in Article 11bis(1), however, an actual definition of CtoP still did not appear

in the Berne Convention after this revision.48 Also, due to the lack of mention of

neighbouring rightsholders49, it was necessary for the Rome 1961 Convention to

introduce specific reference to record labels, performers and broadcasters and provide

exclusive rights for them.50 The exclusive right as applied in both the Rome and Berne

Conventions is exceptionally limited due to its preventative nature; performers were

given the right to prevent broadcasting and other communications of live

performances51 and broadcasters were given the right to prevent the rebroadcasting of

their broadcasts52 as well as any communication to the public in locations where

admission is charged.53

The Paris 1971 Act added further complications by applying variations in the scope of

the right depending on the nature of the work. Musical and dramatic works were

awarded the broadest protection, images the least, and literary works were left

somewhere in-between.54 Ginsburg (2004) sums up the way in which the Paris Act

covered CtoP as “incomplete and imperfect through a tangle of occasionally redundant

or self contradictory provisions on ‘public performance’, ‘communication to the public’,

‘public communication’, ‘broadcasting’ and other forms of transmission.”55

45

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Supra not e. 45 [Gins bur g]

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Overdue updates and clarifications arrived in the adoption of the WIPO Treaties 1996.

The aims of the WIPO Copyright Treaty56 (WCT) and the WIPO Performances and

Phonograms Treaty57 (WPPT) were to establish full coverage of CtoP for both Berne

Authors and Neighbouring Rights respectively, thereby modernising and streamlining

protection for these works.58 In contrast to the preventive nature of the Berne

Convention, the WIPO Treaties granted exclusive ‘authorising’ rights and in so

doing formulated a stronger exclusive right for rightsholders and performers.59

Notably, the first endeavour to define communication to the public appears in the

WPPT, a point that has been inexplicably overlooked by the WCT. Article 2(g) of the

WPPT delineates:

“‘Communication to the public’ of a performance or phonogram means the

transmission to the public by any medium, otherwise than by broadcasting, of sounds of

a performance or the sounds or the representation of sounds fixed in a phonogram. For

the purposes of Article 15, ‘communication to the public’ includes making the sounds or

representations of sounds fixed in a phonogram audible to the public.”60

This definition is only valuable in part due to the lack of specific meanings for

‘transmission’ and ‘public’. At European level, these lacunae have left a cross-section

of EC Directives, Member States’ nationally implemented legislation and case law

endeavouring to close the gaps of interpretation in terms of the scope of CtoP. For

example, the determination of ‘transmission’ has been decided as referring to

communicating the work to the public not present at the place where the communication

originates,61 but a mere technical means to improve reception of the original

transmission in its catchment area does not constitute a communication62. Case law

defined CtoP to include any retransmission of a work by specific technical means

different from that of the original communication63 and where it is not, it is necessary to

prove that the communication is to a new public, i.e. one that was not considered by the

original authors in their initial authorisation.64

56

World I ntellec tual Pr ope rty O rga nisatio n, Co pyrig ht Tre aty, S. Tr eaty D oc. No. 10 5-1 7 (1 997 ) He reaf ter to refe rre d to as “WC T” 57

World I ntellec tual Pr ope rty O rga nisatio n, Pe rfor ma nces and Ph ono gra ms Tre aty, S. Tr eaty D oc. No. 10 5-1 7, 3 6 IL M 76 (1 997 ) He reaft er refe rr ed t o as “WPPT” 58

Supra not e. 49 59

See Rein both e, J. & Vo n L ewinski, S. (20 02) Th e WIPO Co pyrig ht Tre aties, 24. and Ficso r, M. ( 200 2) The Law of Co pyrig ht a nd t he In ter net: Th e 19 96 WIPO Tr eatie s, Their Impl eme ntati on a nd I nte rpr etatio n Oxf ord Unive rsity Pr ess, UK. 60

WPPT Art. 2 (g) 61

See Recit al 20 of Eu rope an Di rective 20 01/2 9/EC an d I TV Broa dcasti ng Lt d v TVCatch up Ltd [ 201 3] ECDR 9 at 2 3. 62

See 05 Socied ad G ene ral d e Auto res y Editor es d e Espa ña (SGAE) v Raf ael Ho teles SA [ 2006 ] ECR I- 115 19, Foo tball Associ ation Pre mier Lea gue Ltd v QC L eisur e [2 011] ECR I-9 083, Airfield NV v Belgisch e Ver enigi ng va n Aute urs, Com positie n e n Uitgev ers CVBA (SABAM) [20 11] ECR I -93 63 a nd I TV Bro adcas ting Ltd v TVCatc hup Ltd [20 13] ECDR 9 63

ITV Bro adcas ting Ltd v TVCatc hup Ltd [20 13] ECDR 9 64

See Or ganis mos Sillo gikis Diach eirisis Di miou rgon Th eat rikon kai O ptikoak oustik on Er gon v Divani Ak rop olis Anoni mi Xen odoc heiaki k ai Touris tiki Etairei a [2 010] ECR I-3 7

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In reference to the definition of ‘the public’, several cases have concluded that the term

refers to an “indeterminate number of potential recipients and implies a fairly large

number of persons”65 and for that purpose, the cumulative effect of making the works

available to potential recipients should be taken into account66. This is particularly

relevant to ascertain the number of persons who have access to the same work at the

same time and successively. It is also implicit, therefore that any group comprising of

the non-public should be economically insignificant.67

The significance of the term ‘public’ relates to the concept of right to ‘Equitable

Remuneration’ under UK law. To the extent the right was comprehended within the

Berne Convention Art. 11bis, CtoP is subject to compulsory licensing. Article 12 of the

Rome Convention states:

“If a phonogram published for commercial purposes, or a reproduction of such

phonogram is used directly for broadcasting or for any communication to the public, a

single equitable remuneration shall be paid by the user to the performers, or to the

producers of the phonograms, or to both.”68

However, conflicting judgments continue to arise. In 2012, the ECJ ruled on three

cases involving CtoP, determining that in the case of broadcasting phonograms in hotel

bedrooms was considered CtoP and therefore gave rise to a right of remuneration for

performers and phonogram producers69, however, applying the same criteria70 for the

same action in a dentist’s waiting71 room and a spa72 was not.73

FACTORING THE INTERNET INTO CtoP ONLY SERVES TO COMPLICATE

EQUITABLE REMUNERATION FURTHER.

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73

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The Making Available Right

With the aim of further strengthening the right of CtoP, in addition to the authorising

nature of the Treaties’ language, the ‘Making Available’ (MA) right was created.74

Article 10 of the WPPT states:

“Performers shall enjoy the exclusive right of authorizing the making available to the

public of their performances fixed in phonograms, by wire or wireless means, in such a

way that members of the public may access them from a place and at a time individually

chosen by them.”75

The adoption of MA signified the recognition that record producers needed this right in

order to disseminate their recordings online as a primary form of exploitation. The IFPI

reported on MA as being “fundamental for promoting the development of electronic

works and of new business models by the recording industry.”76 This is justifiable as it

is generally accepted that the public communication right is infringed whenever a work

is made available to the public “by any means”, irrelevant of whether a member of the

public has actually accessed it or not.77 However, whilst the IFPI’s report gives

reasoning for the strength the MA right gives to record producers, it makes no

mention of the potential impact it might have on performers. The exclusive nature

of MA means that it sits within contractual terms between record companies and

performers78, an issue that will be discussed further on.

The phrasing of Article 10 of the WPPT implies its association with technological

advance, specifically the communication of works on the Internet. The MA right differs

from ‘broadcasting’ in the sense that the former allows the user to access the work

whenever he decides, whereas a broadcast only gives the user access to the work at

the time that it is transmitted.79 Consequently, referring back to the definitions of

streaming earlier, in theory all on-demand streaming should fall under the MA right

whilst ‘live’ streaming should have broadcasting rights applied.80

74

75

76

77

78

79 80

Broadc asting rig hts a uto matically i nclud e rig ht t o eq uitabl e r t he C ouncil Di rectiv e 20 06/1 15/EC Re ntal and Len ding Ri ghts A rt. 8 (2)

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However, there is uncertainty surrounding the application of a broadcasting right in a

digital context. Ficsor argues that whilst live Internet streaming may be regarded as

‘broadcasts’, “the prescription of mandatory collective management would hardly be

compatible with the Berne Convention” where the global nature of the Internet conflicts

with the individual State focus of Berne.81 Therefore, it is evident that Internet live

streaming is currently in a ‘legal limbo’.82 It is undoubtedly a form of CtoP, not

within the technical definition of MA but does not fit with the traditional form of

‘broadcast’ either.

Concerning the scope of the MA right, when communication occurs over the Internet, it

is sufficient that a work is made available by any means, including peer-to-peer83 and

hyperlinking for it to be considered making available to the public.84 In a recent case,

four journalists addressed the issue of hyperlinking under the making available right.

Svensson85 proved that in the case of authors, the ECJ found that “making material

available to the public in such a way that they may access it via hyperlinking… provides

that there is a making available and therefore a communication to the public”86 under

Article 3(1) of the Information Society Directive.87 The wording of this judgement brings

the relationship between MA and CtoP into focus. If the former is ‘therefore’ the latter

for authors, do the same provisions apply for performers?

[top]

81

Ficsor , M. (2 006 ) Collec tive M ana ge ment of Co pyrig ht a nd R elate d Right s in t he Digit al Netw orke d Envir onm ent ” Volun tary , Pres ump tion-B ased, Exten ded, Ma ndat ory, Possible, Inevi table ? In Ger vais, D. (2 006 ) Collectiv e M ana gem ent of Co pyrig ht a nd Rel ated Rights 58 -59 K ulwer Law I nter natio nal, Th e Hag ue 82

Supra not e 8 83

For insta nce in Polydo r Li mited & Othe rs v. Brown & Othe rs [ 2005 ] EWGC 3 191 (Ch) UK 84

As state d by t he I talian S upr eme Cou rt in “Supr em a Cor te di C assazi one ”, se nten za 4 l uglio 200 6 n. 339 45 85

Nils Svensso n, Sten Sjögr en, Mad elaine Sahlm an, Pia Gad d v R etriev er Sve rige AB, CJEU, Case C . 46 6/1 2 20 14 Se e also R osati, E. (2 014 ) Early Th oug hts o n Svens son ” co mmu nicatio n/m aking availa ble, ‘n ew’ p ublic, alt erin g th e sco pe o f exclu sive ri ghts availa ble at htt p://ipkit ten. blogs pot.c o.uk/ 201 4/02 /ea rly-t houg hts- on- svenss on. html Acce ssed 4th Ap ril 86

Ibid. Se e also ALAI, ( 201 4) Re por t an d Opi nion on t he makin g avail able and com munic ation to t he public in the inte rnet envi ron men t: foc us o n linkin g tec hniqu es o n th e Int ern et E.I.P.R 149 87

Council Di rective 20 01/2 9/EC he rea fter ref er red t o as “inf oSoc”

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Where Does Equitable Remuneration Apply?

The WPPT addresses Equitable Remuneration with a level of uncertainty. Article 15(1)

states, “Performers and producers of phonograms shall enjoy the right to single

equitable remuneration for the direct or indirect use of phonograms published for

commercial purposes88 for broadcasting or for any communication to the public.” For

defining ‘commercial purposes’ the WPPT uses language applied to the MA right89,

therefore implying that a remuneration right can be given to both on-demand and live

transmission, but that Member States may apply this Article only to certain uses of

phonograms. WIPO has admitted,

“It is understood that Article 15 does not represent a complete resolution of the level of

rights of broadcasting and communication to the public that should be enjoyed by

performers and phonogram producers in the digital age. Delegations were unable to

achieve consensus on different proposals for aspects of exclusivity to be provided in

certain circumstances.”90

It is also important to note the allowance for contractual circumstances to supersede the

right of Equitable Remuneration for performers as the treaty allows for domestic law to

lay down conditions relating to the sharing of remuneration.91

At European level, the ambiguity of the application of the remuneration right is

apparent. Whilst the Rental and Related Rights Directive92 reiterates Article 15(1)

of the WPPT”,93 the InfoSoc Directive does not contain remuneration rights for

performers at all, rather it contains only the exclusive right. Notably, this

exclusive right is worded differently for performers than it is for authors94:

Member States shall provide for the exclusive right to authorise or prohibit the making

available to the public, by wire or wireless means, in such a way that members of the

public may access them from a place and at a time individually chosen by them:

88

WPPT Art. 1 5 89

Article 1 5 WPPT “f or t he pur pose of t his Article, ph ono gra ms m ade availa ble t o th e pu blic by wi re o r wir eless mea ns in s uch a way t hat me mbe rs of the public may access the m f rom a pl ace a nd at a ti me i ndividu ally ch osen by t hem shall b e co nside red as if t hey had bee n pu blishe d fo r co mm ercial pur poses .” 90

WPPT at n ote 12 91

WPPT Art.15 (3 ) 92

Council Di rective 20 06/1 15/EC Re ntal and R elate d Righ ts Dire ctive her eafte r r efe rre d to as “R ental ” 93

Council Di rective 20 01/2 9/EC Article 3(2 ) 94

Council Di rective 20 01/2 9/EC Article 3(1 ) st ates: “M emb er St ates s hall p rovid e au tho rs with the exclusive rig ht to aut horis e o r pr ohibit any c om munic ation to t he p ublic of th eir wo rks, by wire or wireles s me ans, includi ng t he makin g avail able t o th e pu blic of thei r wor ks in s uch a way t hat me mbe rs of the public may access the m f rom a pl ace a nd at a ti me i ndividu ally ch osen by t hem ”

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(a) for performers, of fixations of their performances…95

It is clear from one directive that, for authors, making available to the public is

included as part of the communication right, a circumstance substantiated by

Svensson. It would therefore be logical to assume that making available would

be part of the CtoP for performers as well, however the Rental Directive does not

specifically mention the MA right in relation to CtoP, allowing for a broad

interpretation.

[top]

95

Ibid.

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The Implementation Of Communication To The Public, Making Available And Equitable Remuneration In EU Law

Ficsor has described Article 8 of the WCT as simply an “umbrella solution”96 and the

InfoSoc Directive reiterates the principles of Article 8 of the WCT, thereby maintaining

the broad regulation of the CtoP right in the EU.97 This is also reaffirmed through the

Explanatory Memorandum accompanying the InfoSoc Directive;

“The expression ‘communication to the public’ of a work covers any means or process

other than the distribution of physical copies”98

As such, the Treaties’ leave open the possibility to implement the MA right on the

basis of an existing exclusive right or through enactment of a new right.99

Distinct legal systems throughout the world have justified different approaches in

terms of CtoP, MA and how equitable remuneration relates to both. AEPO-ARTIS

carried out an in depth study into ten Member States establishing that whilst all legislate

a right to remuneration for broadcasting and CtoP of phonograms, the extent of

application differs dependent on use.100

Pertaining to ‘digital media,’ most States, despite Ficsor’s reservations, consider that

Equitable Remuneration is due for ‘webcasting’ and ‘simulcasting’ due to their

broadcasting nature.101 However, in French and Belgian legislation, narrowed

interpretations of CtoP to ‘public places’ mean that they do not apply broadcasting rights

to these uses.102 This contradicts the Recommendation of the Commission103 that

“webcasting, Internet radio, simulcasting and near-on-demand services received either

96

Supra N ote. 73

97

98

99

100

101

102

103

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on a personal computer, or on a mobile phone as belonging to the right of

communication to the public, in the form of a right to remuneration.”104

Most countries studied in the AEPO report have provided performers with an exclusive

MA right.105 Notably, French legislation did not originally mention the MA right explicitly

as the CPI106 on CtoP was considered broad enough to envelop it.107 However, from

the adoption of the Rental Directive, the MA right should be explicitly recognised as a

new, exclusive right,108 and therefore French legislation was adapted. Only in Croatian

and Lithuanian legislations is the making available on-demand of phonograms

considered to be an act of communication to the public for which an Equitable

Remuneration is due.109 Spain has delivered on performers rights to remuneration by

ensuring that, where the performer transfers his or her exclusive MA right to a record

label, they should retain an un-assignable right to Equitable Remuneration.110

Considering that performers are required to transfer their MA right to the record label

under contractual terms, collective administration for this right is almost non-existent.111

Before the impacts of this are analysed, it is essential to discuss some real world

examples of streaming models and where they sit in the licensing framework.

[top]

104

105

106

107

108

109

110

111

28th A pril 2 014

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Making Available And The Interactivity Of Streaming

The broad definition of interactivity within the WIPO Treaties; “at a time and from a

place individually chosen by them”112 allows for all forms of transmission that allocates a

degree of interactivity, measured by individual members of the public rather than the

public at large.113 Theoretically this covers all content that allows a consumer to choose

which content and the moment of enjoyment of that content. It is difficult to identify a

principle that can be applied to such a wide variety of services, many of which were

unlikely to have been considered when drafting the Treaties.114

Tappin endeavoured to define the key features of a music streaming service, which

amounts to an exercise of the MA right and concluded that it is any service where “the

user is in control” and can “individually decide when (and from where) he accesses the

sound recording.”115 Maintaining that each sound recording should be treated

individually,116 he deduced that, in the case of albums and compilations, even when the

user initiates the first track, the expectation that further tracks will follow gives sufficient

substance to say that the music is being accessed at a time chosen by him.

Furthermore, the added element of allowing users to skip tracks clarifies the application

of the MA right even more.

He also asserts that by this definition, the Napster radio station117, and Jazz FM118 are

all examples where providers cede control of the timing of the transmission to the user

and add elements of skip and pause.119 The availability of the tracks in library form

meant that the user has the option of choosing the starting piece of content. In addition,

services such as BBC Radio ‘Listen Again’120 and ‘Jazz FM archive’121 that re-transmit

programmes in full are still within the users control, he argues; “The fact that the

contents of the programme have been chosen, ordered and timed within that programme

by the programme-maker does not seem to me to detract from the fact that those sound

112

See WCT A rt. 8, , WPPT Art. 10. ,an d WPPT. Art 14 113

Supra not e. 68 114

115

116

117

118

119

120

121

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recordings, embedded in the programme, are being made available in such a way that

they can be accessed at a time individually chosen by the user”122

However, Tappin notes that Last.fm123 and Pandora124 should not be counted under the

MA right, even though they both allow user interactivity by giving them the option to pause

and skip tracks, because “it is not possible to identify any posted works”125, which are

accessible to members of the public at a time of their own choosing. There is no stored

playlist but instead the provider transmits sound recordings in an order generated semi-

randomly by a computer according to user preferences. This in effect is a ‘personalised

broadcast’.126

Tappin’s opinions were offered before the advent of some current services but can be

applied all the same. For example, in light of his analysis, it is questionable whether

certain features of some streaming models have been licensed correctly. Spotify,

who license all their works through the exclusive rights held by record labels127, provide a

radio feature and mobile tier that both fit within Tappin’s definition of ‘personalised

broadcast’ in that they place limits on user interactivity and transmit sound recordings in a

random fashion.128

[top]

122

123

124

125

126

127

128

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The Practical Impacts On Performers

Historically, performers have not been highly valued, legally speaking.129 The advent

of recording and broadcasting technologies served to undermine the protection

of performances and UK legislation has been slow to fortify performers’ rights.130

The Directives and Treaties’ discussed hitherto have aimed at granting more rights to

performers and although jurisprudence argues that they are given protection equivalent

to that of authors,131 it is evident that, through the application of MA and CtoP, they are

not. It can be deduced that the main cause of this is that their protection serves under

performers’ rights and not the stronger copyright132 and that unlike other performing

rights, MA is not subject to Equitable Remuneration.

The intention of the Rental Directive to supply a remuneration right for performers was

“to correct perceived market failure for equity rather than efficiency reasons”133 One of

the imbalances it aims to supplant is the distinction of treatment between featured134

and non-featured135 performers, which is illustrated through industry contracts. The

former is given a share of royalties, whilst the latter are usually given a singular

payment for their performance136. The introduction of an unwaivable remuneration

right for performers was to provide a level of income for those who do not benefit

from royalty payments and also partially to supersede any unfair terms in

contracts.137

The UK has implemented its obligation to performers in two ways. In some cases,

including the application of the MA right, it has created rights for performers directly

enforceable against users138, which sit alongside the directly enforceable rights of the

owner of the copyright in the sound recording139. In other cases, such as broadcast, only

the owner of the copyright in the sound recording has a right directly enforceable against a

user140, but the performer has a right to equitable remuneration from the owner of the

copyright in the sound recording.141 The CDPA only allows a retainable remuneration right

129

130

131

132

133

134

135

136

137

138

139

140

141

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to authors when they assign their exclusive MA right for on-demand services.142

Industry practice indicates that most, if not all, performers transfer their exclusive rights

in the event of a recording contract143, giving only a few featured performers a chance to

negotiate the payment of royalties for the exploitation of their MA right.144 The majority

of performers have not seen their economical situation change145 with the

introduction of the MA right; therefore, its original intention has been undermined

by the contractual practices of the music industry.146 Interestingly, recent cases

demonstrate that performers have begun to question whether record labels have the

right to licence the MA right in contracts that pre-date digital services and have had

some success in their assertion. Johansson brought a successful civil action against

MNW147 regarding the labels right to exploit the MA right and Järvinen the son of a

member of Hurriganes did the same against Universal.148

If performers are to receive equitable remuneration for the making available of

their performances via on-demand services, the current legal framework is in

need of reform. The current deficiencies denote that the MA right remains purely

hypothetical for most performers. Pacifico articulates that; “the Making Available

Right that was meant reward creators in the digital age has failed. Most artists

simply do not have the negotiating power to get a good deal from dominant

players in music”149

[top]

142

143

144

145

146

147

148

149

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Recommendations

1. Precision And Clarification In The EU Directive And WIPO Treaty

Arguably, prior to the advent of digital, each Member States’ subset of copyright

legislation acted satisfactorily within its own jurisdiction and complexities in this area of

law has arisen from the new global approach to copyright. Content is now available on

a worldwide basis and a closer harmonisation of performer rights, especially in Europe,

is needed. The broad level of interpretation that now exists in Europe coupled with

cross-border digital transmissions that occur under these conflicting legal approaches

has only served to complicate the MA right further.

The definition of the exclusive rights and the qualification of online exploitation

could be a solution - requiring a sharper distinction between the making available

right and the reproduction right. Consequently each act of exploitation would be

qualified as either an act of making available or distribution of a reproduction150.

Whilst the topic of complete European harmonisation is outside the scope of this paper,

elements of the Treaty can be criticised for their lack of detail, particularly note 12 of Art.

15 of the WPPT, which exposes the fact that an agreement could not be reached

regarding ER for performers. It is for this reason that Member States were able to

implement the MA right with such differing scope.

Clarification by specifically listing the uses on which ER applies would go a long

way in harmonising legislation in this area. For example, this could be enshrined

through the recommendation of the Commission that ER applies to “webcasting,

Internet radio, simulcasting and near-on-demand services received either on a personal

computer, or on a mobile phone as belonging to the right of communication to the

public, in the form of a right to remuneration”151, although this would demand further

definition in the case of near-on-demand services.

150

151

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2. A New Deal For Legacy Contracts

Whilst newer recording contracts explicitly state that the MA right must be assigned to

the label in order for them to digitally distribute, contracts that pre-date the creation of

the MA right are under scrutiny. Labels have used a catchment clause within

contracts that states that the performer assigns both current and future rights to

the label.152 In addition, the fact that the MA right exists as a sub-set of CtoP, which is

already covered in recording contracts gives strength to this argument. However, the

cases of Johansson153 and Järvinen154 demonstrate that it is possible that much of

the catalogue licensed to streaming services has been done so without the

ownership of the MA right. Therefore, it can be argued that the MA right must be

secured through negotiation with legacy performers, which could give them the

opportunity to obtain a fairer royalty on digital income.

3. Collective Licensing For The MA Right

The proliferation of on-demand streaming and the applicability of the MA right to it have

demonstrated that the potential financial benefit for performers for the exploitation of

their performances is significant. However, the fact that the stronger, exclusive right

yields less return for performers than the right of remuneration in other areas155 proves

an imbalance in the legal framework.

A suitable resolution to overcome the weak contractual position of the performer

would be to provide an unwaivable right of remuneration retained by the

performer in the event that his or her MA right has been assigned. The right

would then be licensed collectively. This follows the current Spanish model and

being obligatorily exercised by a collecting society. In a similar way, collective licensing

has been imposed by the Satellite and Cable Directive (SatCab) with regard to cable

retransmission rights. In this case, the MA right keeps its exclusive nature but it can in

principle only be exercised by a Collective Management Organisation (CMO)156 Should

this legislation be applied, the performer, as the content provider, would have the right

to individually authorise or prohibit the making available of the work to the public but not

152

For det ails an d a nalysis o f this cl ause am ong oth ers s ee Futu re of M usic Co alition (20 01) Maj or L abel C ont ract Cl ause C ritiqu e, a vailabl e at https ://fut ur eofm usic.o rg/ article/ articl e/m ajor -label -con trac t-cla use-c ritiqu e 153

154

155

For exa mple, the rig ht of re mun erati on in br oadc asts yiel ds 5 0% of r even ues f or per for mers in t he UK. Se e Cad dick, N., Davies, G., & H arb ottle, G. ( 201 3) C oping er & Sko ne J ames on C opyri ght, 16t h

ed . Sweet & Maxw ell, Lo ndo n. 156

art. 9 SatCa b Dir )32 9

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the first reproduction following from this availability. With the CMO concluding these

agreements for the first reproduction in its repertoire, direct income would be

guaranteed to the performer157 The collective negotiating power of collecting societies

would work in performers’ favour by obtaining and enforcing global agreements in the

first instance of making available.

When comparing the labels’ position to the cable distributors referenced in the SatCab

Directive, the desirability of this system for performers becomes apparent. As

secondary exploiters of the MA right, they are reliant on the primary distributer (in this

case, the broadcaster), which alone determines the broadcasting programme and clears

the rights accordingly. Instead of these actions being independently achieved, they are

both acts of the same exploitation, and therefore the content provider making the work

available would also control the resulting reproduction through the same technical

process.158 However, the feasibility of this system comes into question when

considering that it was created for a very specific sector; the retransmission of radio and

TV broadcasts, which is far more delineated sector and therefore easier to discern

sector practices159.

The advantage of Collective Licensing is that is yields equitable remuneration, however,

it is important to note that European legislation does not currently specify the division of

this remuneration between performers and record labels. Belgium, France, Lithuania

and The Netherlands all stipulate equal shares160, which the rest of the EU Members

States would be advised to follow to ensure performer protection161. In addition,

collective licensing for authors within an on-demand streaming context has presented

challenges of its own. As well as being faced with criticism of their efficiency of

administration in the digital environment162, the global nature of the Internet has

presented anti-trust challenges in cross-border licensing.163 However, it has been

stipulated that even with the issues of efficiency in revenue and data processing, artists

often prefer CMOs to collect money on their behalf rather than labels and publishers.

Therefore it is arguably still desirable for performers’ entitlement to remuneration

for their MA rights to be collectively administered, if there is to be any change in

their circumstance.

157

Supra not e. 10 7 at [22 ] 158

159

160

Ibid. 161

Ibid. For Exam ple Fra nce h as link ed th e a mou nt of re mun era tion direc tly to t he reve nues fro m ex ploita tion as it giv es p erfo rm ers’ org anisati ons a clea r gui deline in t heir discussio ns with use rs. 162

Merc edes F rabb oni, D , (2 005 ) Cr oss-b ord er lic ensin g an d collec tive man age ment : a pro posal for the online cont ext, En t. L. R, 2 005 16( 8) 204 -208 163

For a f ull analy sis see Batch elor, B. (2 007 ) Antit rust c hallen ges t o cr oss- bor der cont ent lic ensin g: th e Eur ope an Co mmissi on inv estig ations of c ollecting socie ties a nd i Tun es, C. T.L.R, 20 07, 13( 8) 2 17- 222

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4. Compulsory Licensing For First Reproductions

As an alternative to Recommendation (3), a compulsory license covering the first

reproductions following directly from on demand availability to the public could

be introduced.164 This would allow labels to maintain complete control over the

licensing of the making available right whilst concurrently holding them accountable to

the performer and subjecting them to a more rigorous and transparent process when

doing so.

Instead of requiring that either the content provider or the end-user negotiate a licence,

the grant of a compulsory licence would be subject to a minimum remuneration for both

the label and the performer. The Berne Convention contains provisions that allow for

these licenses but enacts two restrictions; that the impacts of the compulsory licenses in

each Member State should not impose beyond their territory and that the performer

should receive a fair remuneration which is negotiated between the parties involved or

fixed by a competent authority.165 According to jurisprudence, the debtor of such

remuneration should be the party making the work available to the public i.e. the content

provider; in most cases, the label. Regarding the latter, as seen in the US with the

Copyright Royalty Board, this creates an important burden and also may negatively

impact on performers and labels by instilling an upper limit for the negotiated fee for the

licence.166

[top]

164

165

166

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Conclusion

The growth of legal, on-demand streaming services has generated new forms of income

via licensing exclusive rights.167 Therefore, it would be expectant for performers to

benefit in parallel with increases in revenue and for the law to support their right to

financial gain. Throughout the EU, the implementation of Art.3 of the InfoSoc Directive

changed legislation to include the right for the making available of works on-demand

streaming services. In most case this has been implicitly recognised as a subset of

CtoP.

However, it can be seen that whilst the strength of the exclusive MA right is

weighted to the record producers, the economical situation of performers has not

necessarily changed in correlation with that of other beneficiaries of digital

income. Furthermore, where in most countries, performer ER is payable when the

performing rights of a sound recording copyright are exploited, but the MA right, (despite

being implemented in the UK and numerous other territories as a division of CtoP) is

omitted from this.

Therefore, if the same streaming service is exploiting communication rights, ER should

be paid to the performer, but if the MA right is at play, no automatic payments to

performers are due. The result of this is to confuse the legal definition of a stream and

create uncertainty in the performer community168. Contractual agreements requiring the

transferral of the making available right only allows for major featured artists to

negotiate higher royalty rates from the exploitation for this right.

From the research here, it can be observed that legislation is seriously lacking in

terms of protection for performers in the digital age. The fact that CtoP has to be

interpreted broadly for the protection of performers and phonogram producers169

has resulted in a miscellany of implementation throughout Europe.

However, this has allowed for the growth of diverse licensing systems allowing for

scrutiny of the impact these systems have on various counterparts.

167

See Gillier on, P. (20 06) Collecti ng Socie ties a nd t he Digi tal Envir on ment, IIC 9 39 “Th e ass um ption that the devel op ment of o nline music s tor es will likely l ead t o a s ubst antial i ncr ease i n th e ro yalties c ollect ed o n th e inte rne t was c onfi rme d on Ma rch 13, 200 6, wh en ASCAP ann ounc ed t hat reve nues gen era ted by o nline music st ore s in 2 005 ha d incr ease d by 50% in c om paris on with 20 04, f or a tot al am oun t of US$ 8.1 million. See f ull pr ess r eleas e at www .asca p.co m/p ress/ 200 6/03 1 168

169

See SGAE at [ 36], [54], FAPL at [1 86], ITV a t [20 ].

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It is vital that performers with little negotiation power share in the evolution of

any new market that exploits their performances. On-demand streaming of music

is one such area, where some States are implementing economically sustainable

solutions for performers through collective licensing. Despite the drawbacks of

collective licensing, it seems that this remains the strongest recommendation to

change the financial position of the majority of performers.

[END] [top]

If you have any comments about this paper or suggestions for any future

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MUSICTANK.CO.UK | MAKING AVAILABLE | 36

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References

1. For example: www.deezer.com, www.last.fm, www.youtube.com, www.rdio.com, www.rara.com,

www.bloom.fm, www.spotify.com, www.hypem.com, www.netflix.com, www.lovefilm.com, etc.

2. Thomes, T.P, (2013) An economic analysis of online streaming services, Information Economics and Policy, Volume 25, Issue 2, pages 81-91.For a critical analysis of streaming service business models see Tschmuck, P. (2013) Is streaming the next big thing? The Business Models of Music Streaming Services, Available at http://musicbusinessresearch.wordpress.com/2013/06/17/is-streaming-the-next-big-thing-the-business-models-of-music-streaming-services/ Accessed 3

rd

March 2014

3. www.youtube.com Youtube is now the second largest search engine in the world, with one billion unique monthly visitors, six billion hours of video are consumed every month and one hundred hours of video are uploaded every minute. See infographic at http://www.mushroomnetworks.com/infographics/youtube---the-2nd-largest-search-engine-infographic accessed 15th Feb 2014

4. Generation ‘Z’ are described as those born between 1995 and 2012 and having grown up with a highly sophisticated media and computer environment, are more Internet and content savvy than their Gen ‘Y’ forerunners. For full description, see http://www.socialmarketing.org/newsletter/features/generation3.htm accessed 28th Feb 2014

5. www.spotify.com

6. www.deezer.com

7. See IFPI’s Digital Music Report 2014 accessible at http://www.ifpi.org/downloads/DigitalMusic-Report-2014.pdf , Whinney, J. (2012) Music Streaming Services and Payouts, Lee & Thompson LLP, Comps. & Law 2012, 23(3), 24-25.

8. Borghi, M. (2011) Chasing Copyright Infringement in the Streaming Landscape IIC 2011, 42(3)

316-343

9. For examples of this see the nuanced differences between services as analysed in Supra note 2. [Tschmuck]

10. Borghi, M. & Montagnani, M, L. (2009) Models for Managing Intellectual Property Rights on the Internet: Online Distribution of Digital Media Content, Final Report, Counter Project, October 2009

11. Ibid. 12. Robertson, G. (1997) Music, The Internet and the Role of Colleting Societies E.L.R Vol. 8(7) p.

242 - 246

13. Legally speaking, equitable remuneration, which means equal pay, can have a more narrowly defined purpose in the business environment. A common legal review of the term attempts to ensure that remuneration represents good faith practices and is proportionate to the performance of the individual. In the music industry, Equitable Remuneration refers specifically to the fifty per cent split between performers and labels and between publishers and writers through PPL and PRS respectively. The legal term equitable remuneration refers to the principle of fair pay.

14. Habib, E. (2015) Streaming set to surpass all time download record in France, MBW accessed at http://www.musicbusinessworldwide.com/streaming-set-to-surpass-all-time-download-record-in-france/

MUSICTANK.CO.UK | MAKING AVAILABLE | 39

Ingham, T. (2015) Streaming now accounts for 72% of recorded music market in Denmark, MBW, accessed at http://www.musicbusinessworldwide.com/streaming-now-accounts-for-72-of-recorded-music-market-in-denmark/ Ingham, T. (2015) Japan’s music market up 1.1% as streaming jumps 43%, MBW accessed at http://www.musicbusinessworldwide.com/japans-recorded-music-market-up-1-1-as-streaming-jumps-43/

15. Baym, N. K. (2010) Rethinking the Music Industry. Popular Communication, E.L.R 8(3), 177-180.

16. Sandivne reports: “real-time entertainment is unquestionably the dominant driver of data consumption on fixed and mobile networks and is still growing substantially” Sandvine Inc. (2010) Fall 2010 Global Internet Phenomena Report. Available at www.sandvivne.com, See also: Labowitz, C., Iekal-Johnson, S. & McPherson, D. (2009) ATLAS Internet Observatory Annual Report, Arbor Networks

17. Supra note. 8

18. Ibid.

19. Aguiar, J. & Martens, B. (2013) Digital Music Consumption on the Internet: Evidence from

Clickstream Data, JRC Technical Reports available at http://publications.jrc.ec.europa.eu/repository/bitstream/111111111/27891/1/de%20wp%20digital%20music%20consumption%20201305.pdf Accessed 19

th March

20. IFPI, (2014) Music Subscription Revenues help Drive Growth in Most Major Markets 18

th March

Available at http://www.ifpi.org/news/music-subscription-revenues-help-drive-growth-in-most-major-markets Accessed 19th March

21. Ibid.

22. Ibid.

23. IFPI (2015) Digital Music Report 2015, accessed at: http://www.ifpi.org/news/Global-digital-music-revenues-match-physical-format-sales-for-first-time

24. Klym, N. (2005) Digital Music Distribution MIT cfp.mit.edu/docs/digital-music-dec2005.pdf See

also Jade, K. (2005) “ML: Apple prepared to debut iTunes subscription service if needed,” Apple Insider, http://www.appleinsider.com/article.php?id=1075 which proves why downloading can now be seen as a “traditional” method.

25. Ibid. [Klym]

26. Topic, M. (2002) Streaming Media: Demystified, McGraw Hill, New York and Zimmermann, J, (2012) Actual Transfer versus Making Available: A Critical Analysis of the Exclusive Right to Distribute Copyrighted Works C.I.L Vol. 29(8) p.1 (9)

27. Supra note. 8 28. Ibid. Borghi states that buffering is an act of temporary storage in the temporary memory and is

inherent to the act of streaming.

29. Ibid. “In buffering, the storage of segments of data are subsequently replaced by other segments and the RAM retains only enough data sufficient for the time it takes to deliver the content via a media player.”

30. Foley, S. (2001) Buffering and the reproduction right: When is a copy a copy? Accessible at http://web.wmitchell.edu/cybaris/wp-content/uploads/2010/04/03.Foley_.05-07-10-vFINAL.pdf Accessed 14th April

31. Ibid. In the case of caching tracks to a device, there are arguments over whether this constitutes a reproduction of the sound recording of a musical work. Permitting the user to access the sound

MUSICTANK.CO.UK | MAKING AVAILABLE | 40

recording again from local access rather than by means of a transmission would suggest that a copy has been made, however, these are ‘borrowed’ and it has been argued that, in terms of infringement, the allegation that caching data is a form of recreating an illegal copy has only served to retard the distribution of legal content. Either way, the arguments surrounding caching data are outside the scope of this paper.

32. Supra note 8: Borghi states that the “broad reproduction right laid down in the WIPO Copyright Treaty and the Information Society Directive, coupled with the exemption for acts of temporary reproduction, is probably the last attempt to keep the reproduction right as a “core copyright” in a meaningful sense”

33. Ibid. For example, web pages browsed on a laptop, will always create a temporary cache version within the computer’s hard drive that is later automatically deleted.

34. Miller, E. & Feigenbaum, J. (2002) Taking the Copy out of Copyright, 236, in Lecture Notes in Computer Science, Vol. 2320, Springer, Berlin. Pg.233-244

35. Supra note. 8

36. Ibid.

37. Ibid.

38. Ibid.

39. For examples of this see www.ustream.tv and www.livestream.com 40. Supra note. 8

41. Ibid.

42. Ibid.

43. Walter, M. M., & Von Lewinski, S. (2010) European Copyright Law: A Commentary, Oxford

University Press, Oxford

44. See Berne Convention for the Protection of Literary and Artistic Works available at www.wipo.int/treaties/en/ip/berne/ The Convention is stated (in art.2) to apply to “literary and artistic works”, which “shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression”. The Guide to the Berne Convention (available at ftp://ftp.wipo.int/pub/library/ebooks/historical-ipbooks/GuideToTheBerneConventionForTheProtectionOfLiteraryAndArtisticWorksParisAct1971.pdf ) explains that this could include sound recordings in those countries wishing to extend protection to sound recordings.

45. See Art. 2 of Berne Convention

46. See ftp://ftp.wipo.int/pub/library/ebooks/historical-ipbooks/GuideToTheBerneConventionForTheProtectionOfLiteraryAndArtisticWorksParisAct1971.pdf Accessed 18

th April 2014

47. Ross, A. & Livingstone, C.,(2012) Communication to the Public: Part 1” Ent. L.R. 2012, 23(6),

169-173

48. Neighbouring rights or “Related Rights” refer to the rights of performers or makers and broadcasters of the sound recording. They are the exact equivalent of Authors Rights but are not connected to the Author. It is also worth noting that there is not a single definition of the term “Related Rights” and they vary much more widely in scope between different countries than Authors Rights.

MUSICTANK.CO.UK | MAKING AVAILABLE | 41

49. These include performers, record labels and broadcasters. See the Rome Convention: International Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organisations. Rome 1961 Available at http://www.wipo.int/treaties/en/text.jsp?file_id=289757 Accessed 27

th March 2014

50. Rome Convention art.7(1) See also Ginsburg, J. (2004) The (New?) Right of Making Available to

the Public p. 234-47 of Bently, L. & Vaver, D. (2004) Intellectual Property in the New Millenium, Essays in Honour of William R. Cornish Cambridge University Press, London.

51. Apparently by any means Rome Convention art. 7

52. Rome Convention art. 13 (a) and (d)

53. Article 11 and 11bis Paris Act 1971 Available at http://www.law.cornell.edu/treaties/berne/overview.html Accessed 27th March 2014

54. Supra note. 45 [Ginsburg]

55. World Intellectual Property Organisation, Copyright Treaty, S. Treaty Doc. No. 105-17 (1997) Hereafter to referred to as “WCT”

56. World Intellectual Property Organisation, Performances and Phonograms Treaty, S. Treaty Doc. No. 105-17, 36 ILM 76 (1997) Hereafter referred to as “WPPT”

57. Supra note. 49

58. See Reinbothe, J. & Von Lewinski, S. (2002) The WIPO Copyright Treaties, 24. and Ficsor, M. (2002) The Law of Copyright and the Internet: The 1996 WIPO Treaties, Their Implementation and Interpretation Oxford University Press, UK.

59. WPPT Art. 2(g)

60. See Recital 20 of European Directive 2001/29/EC and ITV Broadcasting Ltd v TVCatchup Ltd [2013] ECDR 9 at 23.

61. See 05 Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA [2006] ECR I-11519, Football Association Premier League Ltd v QC Leisure [2011] ECR I-9083, Airfield NV v Belgische Vereniging van Auteurs, Compositien en Uitgevers CVBA (SABAM) [2011] ECR I-9363 and ITV Broadcasting Ltd v TVCatchup Ltd [2013] ECDR 9

62. ITV Broadcasting Ltd v TVCatchup Ltd [2013] ECDR 9

63. See Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon v Divani Akropolis Anonimi Xenodocheiaki kai Touristiki Etaireia [2010] ECR I-37

64. See Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA [2006] ECR I-11519, Societá Consortile Fonografici (SCF) v Del Corso [2012] Bus LR 1870, Phonographic Performance (Ireland) Ltd v Ireland [2012] ECDR 15 and ITV Broadcasting Ltd v TVCatchup Ltd [2013] ECDR 9

65. Ibid.

66. Supra note. 53 See also Ricketson, S. (1987) The Berne Convention 1996-1986.

67. Rome Convention Art. 12 See also Council Directive 92/100 EEC Art. 8.2 for European implementation of remuneration right for broadcasting and communication to the public of commercial phonograms.

68. Phonographic Performance (Ireland) Ltd (PPIL) v Ireland, Attorney General (C-162/10) [2012] 2 C.M.L.R 29

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69. All three cases refer to Articles 3 and 5 of the InfoSoc Directive

70. Societa Consortile Fonografici (SCF) v Marco Del Corso (C-135/10) [2012] E.C.D.R

71. Ochranný svaz autorský pro práva k dílům hudebním o.s. (OSA) v Léčebné lázně Mariánské Lázně a.s.(Case C-351/12) [2012]

72. The nuances of these cases surround the number of people able to hear the broadcast at any one time, PPIL took into account all hotel customers present in the building who ‘might’ be able to hear the phonogram, whereas in the SCF case, patients in a dentist’s waiting room were not numerous enough to be considered ‘public’. It could be argued that the term ‘public’ is still not properly defined, as there are no set de minima’s. Supra notes. 63 and 64. See also Case Comment, (2012) Playing Music to Dental Patients is not communication to the public, but doing so in hotel rooms is, EU Focus, 26. And Rizzuto, F. (2012) The European Law concept of communication to the public and the protection of copyright in electronic transmissions, C.T.L.R 2012, 18(6) 179-197

73. WPPT. Art. 10 See also Carson, D. (2009) Making the “Making Available” Right Available, 22nd

. Annual Horace S. Manges Lecture, 3

rd Feb

74. An equivalent version of this right was also given to authors through WCT Art. 8 and to record

producers through WPPT. Art. 14

75. IFPI, (2003) The WIPO Treaties: ‘Making Available Right’ available at: http://www.ifpi.org/content/library/wipo-treaties-making-available-right.pdf accessed 14th April 2014

76. The ECJ clearly made this point in SGAE v. Rafael Hoteles SA1, a case on the transmission of

musical works via televisions into hotel rooms; “It follows from Article 3(1) of Directive 2001/29 and Article 8 of the WIPO Copyright Treaty that for there to be a communication to the public it is sufficient that the work be made available to the public in such a way that the persons forming that public may access it. Therefore, it is not decisive, contrary to the submissions [of the defendants], that customers who have not switched on the television have not actually had access to the works.” See Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA [2006] ECR I-11519

77. Supra note. 68

78. See Art. 10 WPPT: “Members of the public may access them from a place and at a time individually chosen by them”

79. Broadcasting rights automatically include right to equitable remuneration, see the Council

Directive 2006/115/EC Rental and Lending Rights Art. 8(2)

80. Ficsor, M. (2006) Collective Management of Copyright and Related Rights in the Digital Networked Environment” Voluntary, Presumption-Based, Extended, Mandatory, Possible, Inevitable? In Gervais, D. (2006) Collective Management of Copyright and Related Rights 58-59 Kulwer Law International, The Hague

81. Supra note 8

82. For instance in Polydor Limited & Others v. Brown & Others [2005] EWGC 3191 (Ch) UK

83. As stated by the Italian Supreme Court in “Suprema Corte di Cassazione”, sentenza 4 luglio 2006 n.33945

84. Nils Svensson, Sten Sjögren, Madelaine Sahlman, Pia Gadd v Retriever Sverige AB, CJEU, Case C. 466/12 2014 See also Rosati, E. (2014) Early Thoughts on Svensson” communication/making available, ‘new’ public, altering the scope of exclusive rights available at

MUSICTANK.CO.UK | MAKING AVAILABLE | 43

http://ipkitten.blogspot.co.uk/2014/02/early-thoughts-on-svensson.html Accessed 4th April

85. Ibid. See also ALAI, (2014) Report and Opinion on the making available and communication to the public in the internet environment: focus on linking techniques on the Internet E.I.P.R 149

86. Council Directive 2001/29/EC hereafter referred to as “infoSoc”

87. WPPT Art. 15

88. Article 15 WPPT “for the purpose of this Article, phonograms made available to the public by wire

or wireless means in such a way that members of the public may access them from a place and at a time individually chosen by them shall be considered as if they had been published for commercial purposes.”

89. WPPT at note 12

90. WPPT Art.15(3)

91. Council Directive 2006/115/EC Rental and Related Rights Directive hereafter referred to as “Rental”

92. Council Directive 2001/29/EC Article 3(2)

93. Council Directive 2001/29/EC Article 3(1) states: “Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them”

94. Ibid.

95. Supra Note. 73

96. It can be seen that the InfoSoc Directive took WCT Art. 8 word for word: See Recital 23 of the InfoSoc Directive “This Directive should harmonise further the author's right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts.”

97. Proposal for a directive on the harmonisation of certain aspects of copyright and related rights in the information society, Brussels, 10.12.97, COM 97 (628) final p.25.

98. Supra note. 68

99. Vanheusen, E. (2007) Performers Rights in European Legislation: Situation and Elements for Improvement A Study Prepared for AEPO-ARTIS Available at: http://www.aepo-artis.org/usr/AEPO-ARTIS%20Studies/Study%20Performers%20Rights%20in%20Acquis_AEPO-ARTIS.pdf Accessed 20

th April 2014

100. Ibid. at [18] Croatia, The Netherlands and the Czech Republic consider “webcasting” to be a type

of broadcasting. In Spain and Sweden it falls under “communication to the public” and France and Lithuania stipulate that a “simultaneous retransmission by cable of the broadcast” deserve equitable remuneration.

101. Ibid. at [19]

102. Recommendation of the Commission of 25 September 2008 on collective cross-border management of copyright and related rights for legitimate online music services. Available at http://www3.ebu.ch/files/live/sites/ebu/files/Knowledge/Media%20Law/Reference%20Texts/EU%20-%20intellectual%20property/REF%20EU-EPres%20online%20music%20svs.pdf

MUSICTANK.CO.UK | MAKING AVAILABLE | 44

103. In accordance with Directive 92/100 EEC

104. Supra note. 92 at [33]

105. See Art. 212-3 of the French Code of Practice on Intellectual Property

106. French jurisprudence considered that “making available to the public through a network” such as

the Internet is considered to be a communication to the public, See La Semaine Juridique JCP 3rd

March 1997, Paris Available at http://jurisguide.univ-paris1.fr/RD/index.php?view=SSEARCH&action=SHOWFICHE&fid=FR2105

107. Supra note. 92 at [34]

108. Supra note. 92 at [19]

109. Art 108,3 of Spanish IP Law

110. However, there are a few exceptions such as the Czech Republic where some performers have retained their MA right and licensed its administration to INTERGRAM, and the French collection society SPEDIDAM indicates in its membership terms that a performers MA right should be transferred to them, which unsurprisingly contradicts a record contract. For a more in depth analysis of their interpretations of the exclusive right for making available on-demand services see ADAMI, (2006) Filière de la musique enregistrée: quels sont les véritables revenus des artistes interprètes Available at: http://www.irma.asso.fr/IMG/pdf/4063_Etude_remuneration_musique_avril2006.pdf Accessed 28th April 2014

111. See WCT Art. 8,, WPPT Art. 10.and WPPT. Art 14

112. Supra note. 68

113. Supra note. 92

114. Tappin, M. (2007) Opinion on Interactive Radio, Dec, 2006, PPL UK Ltd.

115. Each track will contain a separate performance and a separate sound recording.

116. www.napster.co.uk/radio/featured

117. www.jazzfm.com

118. Supra note. 107 at [41(a) and (b)

119. Now known as BBC Radio iPlayer www.bbc.co.uk/radio 120. www.jazzfm.com/uncut/ondemand

121. Supra note. 107 at [41(c)]

122. www.last.fm

123. www.pandora.com

124. Supra note. 107 at [41(d)]

125. Ibid.

126. See Von Wiegandt, D. (2013) Spotify: Incentivizing Album Creation through “The Facebook” of

Music, Berkely Journal of Entertainment and Sports Law Vol. 2 Iss. 1 Art. 9 and Haymarket, T. (2013) Spotify Demystifies its Business Model, Sort Of—But Disgruntled Artists May Not Care,

MUSICTANK.CO.UK | MAKING AVAILABLE | 45

Readwrite.com, Available at http://readwrite.com/2013/12/03/spotify-business-model#awesm=~oDkRr25TFyWGMp Accessed 1

st May 2014

127. Spotify describes it mobile tier as “Play any artist, album or playlist in shuffle mode for free” See

www.spotify.com/us/free It also only allows for tracks to be played a certain number of times.

128. See Bently, L. & Sherman, B. (1995) Performer Rights: Options for Reform” Report to the Interdepartmental Committee, 1 October at 14. and Towse, R. (2007) The Singer or the Song? Review of Law and Economics at 746 & 747

129. Llu, D. (2012) Performers Rights: muddled or mangled? Bungled or boggled? E.I.P.R 374

130. Supra note. 123. Bently L. et al. “In all but two respects, namely duration and depth of protection, performers’ protection is at al level virtually equivalent to that of authors”

131. Supra note. 124

132. Council Directive 2006/115/EC on Rental and Related Rights

133. PPL defines a “Contracted Featured Artist” as “A performer who is bound by an exclusive agreement with the relevant record company to perform on the recorded music track. This does not include agreements to do session work, or producer/ remixer agreements” and “Other Featured Artist” as “A performer who contributes an audible performance to the recorded music track and is: A lead vocalist not exclusively contracted to the commissioning record company; A performer not exclusively contracted to the commissioning record company but whose personal or professional name appears with or is linked to the name of the contracted featured artist on the track; or A performer who is entitled under the terms of a contract with the contracted featured artist to receive royalties from sales of the recording. See myPPL User Guide Available at http://www.ppluk.com/Documents/Member%20Services/myPPL%20User%20Guide%20-%20Register%20Repertoire%20GEM.pdf Accessed 2

nd May 2014

134. Ibid. PPL defines a “Non-featured Performer” as “a performer who is not a contracted featured

artist or another featured artist. Examples of non-featured artists include session musicians and backing singers. Studio personnel should also be listed as a non-featured artist if they make an audible contribution to the recording or if they conduct or provide a similar musical direction to another performer’s live performance as it is being recorded.”

135. Either live or the fixation of. Supra note. 124

136. Ibid.

137. Copyright, Designs and Patents Act 1988 Sec.20 [CDPA] and Sec. 182CA

138. Ibid.

139. CDPA Sec. 182D(1a)

140. CDPA Sec. 182A allows equitable remuneration when a phonogram “is communicated to the

public otherwise than by its being made available to the public in the way mentioned in section 182CA(1)”

141. CDPA Sec. 93B

142. Supra note. 107 at [34]

143. However, there is very little data on the specifics of how much income major performers actually receive from the exploitation of their MA right through Recording contracts. Supra note. 124

144. Supra note. 107 Table 1.4

145. Ibid. at [36]

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146. formerly Musiknatet Waxholm

147. Ben, (2015) Johan Johansson uses ‘making available’ right to exit Spotify, Music Law Updates. Accessed at http://musiclawupdates.blogspot.co.uk/2015/09/johan-johansson-uses-making- available.html accessed 1st October 2015

148. Pacifico, P. (2015) Managers disappointed by ‘Making Available Right’ omission from EC’s single digital market plans, MBW accessed at: http://www.musicbusinessworldwide.com/managers-disappointed-by-making-available-right-omission-in-ecs-single-digital-market-plan/

149. Depreeuw, S & Hubin, J. (2014) Study on the Making Available Right and Its Relationship with

the Reproduction Right in Cross Border Digital Transmissions, De Woolf and Partners, EC, available at http://ec.europa.eu/internal_market/copyright/docs/studies/141219-study_en.pdf accessed on 5th October 2015

150. Supra note 103

151. For details and analysis of this clause among others see Future of Music Coalition (2001) Major Label Contract Clause Critique, available at https://futureofmusic.org/article/article/major-label-contract-clause-critique

152. Supra note 147

153. Ibid.

154. For example, the right of remuneration in broadcasts yields 50% of revenues for performers in the UK. See Caddick, N., Davies, G., & Harbottle, G. (2013) Copinger & Skone James on Copyright, 16

th ed. Sweet & Maxwell, London.

155. art. 9 SatCab Dir) 329

156. Supra note. 107 at [22]

157. Supra Note 149

158. Ibid.

159. Supra note. 107 at [22]

160. Ibid. For Example France has linked the amount of remuneration directly to the revenues from

exploitation as it gives performers’ organisations a clear guideline in their discussions with users.

161. Mercedes Frabboni, D, (2005) Cross-border licensing and collective management: a proposal for the online context, Ent. L. R, 2005 16(8) 204-208

162. For a full analysis see Batchelor, B. (2007) Antitrust challenges to cross-border content licensing: the European Commission investigations of collecting societies and iTunes, C.T.L.R, 2007, 13(8) 217-222

163. Supra note. 149

164. Ibid.

165. Ibid.

166. See Gillieron, P. (2006) Collecting Societies and the Digital Environment, IIC 939 “The

assumption that the development of online music stores will likely lead to a substantial increase in the royalties collected on the internet was confirmed on March 13, 2006, when ASCAP announced that revenues generated by online music stores in 2005 had increased by 50% in comparison with 2004, for a total amount of US$8.1 million. See full press release at

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www.ascap.com/press/2006/031

167. Cooke, C. (2015) Dissecting the Digital Dollar: How Streaming Services Are Licensed and the

Challenges Artists Now Face, MMF, London.

168. See SGAE at [36], [54], FAPL at [186], ITV at [20].

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