REVIEW OF THE EU COPYRIGHT RULES

The European Commission has organized a public consultation in which stakeholders may comment on the forthcoming review of copyright in the European Union. Below you will find a summary of  the contribution of VillaMusicRights.

Copyright is intended for those who carry out creative achievements and to give them control over their work and to reward them for it.  This is basically a good working system, also cross-border. The music industry however has made a caricature of it. In factual practice, record companies, music publishers, managers and collective rights organizations benefit from the creative achievements of others, and they are the ones facing problems and needing further measures.

The best way to improve the system is complete transparency. At VillaMusicRights composers can upload their own work, and they set the price and term of the licenses they grant. If a business user acquires a license, composers will be informed and paid. The EU should contact the Member States and agree with them that at a national level there will be good information on how creative people can manage their rights. Especially has to be made clear that collective management is not the only way.

Copyright must return to (music) makers. Copyright is a reward system for makers and not a punishment system for citizens, in which the concepts download ban and private copying levy are at the centre. Wouldn’t it be nice if in future policy innovation and encouraging innovative initiatives are at the centre? As long as it is not,  the old structures - at least for now - remain. This is undesirable, because this way creative people remain dependent of organizations that consider self-interest as the most important thing. 

In media, telecom, railways, energy, etc. is a far-reaching liberalization has been established, initiated at an European level. Usually with two sides: a "dismantling" of public providers and stimulating competition. In copyright there are organizations operating with the exclusion of others, authorized by Member States.  Liberalized markets such as media and telecommunications are based on the reverse. The European Union  should encourage competition in the market for copyright.

How many rights can you lose?

If you are a famous pop star, fans want your autograph. I you want to become one, others want your signature: recording companies, collecting societies like PRS and ASCAP, music publishers, managers. Before you know it you haven’t got anything left but your underwear.

Copyright gives an author the final say in the use of his compositions and lyrics. He may grant permission to make his creations public or to reproduce them. For this, he may demand a remuneration. More specific, these are the rights:

- Performance rights
The right to perform means that you can let a public hear your songs. Before a live audience or by radio, television and the internet.

- Recording and reproduction
This rights means that you can record your songs on sound carriers like cd or dvd and make copies of them.

There are also rights stemming from these rights:
- Music publishing
Originally, this was about sheet music. Nowadays music publishers engage in promoting artists.
- Mastering
Mastering is completing a mix and improving the sound. This is a special form o the right to record, sometimes part of contracts with record companies.
- License
This means that you grant a right to use your songs to a company that takes care of your exploitation. You are still the main rights holder. Most of the time this is about stock music. This music is specially made for movies, television series and commercials.
- Distribution
Distributions rights are given to record stores, like Tower Records.
Synchronization
- Synchronization in a recording contract is when the recording artist's music is synchronized to a video: music video, movie, television, commercial, etc.
- The right to have income from concerts and merchandising
This has got nothing to do with copyright. Every artist earns money by gigs or selling T-shirts

COPYRIGHT BACK TO MUSIC MAKERS

The world of copyright has long been in motion. Every new form of distribution provides a mountain of problems, because the old, sometimes monopolistic structures are not able to adjust to new technologies. By some is called for a drastic reform or even abolition of copyright. Copyright was originally intended for those who carry out creative achievements and to give them control over their work and to reward them for it.  The music industry has made a caricature of it. In factual practice, record companies, music publishers, managers and collective rights organizations benefit from the creative achievements of others. Copyright must therefore return to music makers. From this idea VillaMusicRights is established, an innovative organization making possible through a website that music makers manage their own copyright and put them directly in touch with users of their music, a kind of marketplace therefore. Copyright is a reward system for music makers and no punishment system for citizens, in which the concepts download ban and private copying levy are at the centre. Wouldn’t it be nice if in future policy innovation and encouraging innovative initiatives are at the centre? As long as it is not,  the old structures - at least for now - remain. This is undesirable, because this way creative people remain dependent of organizations that consider self-interest as the most important thing.

LACK OF UNDERSTANDING HARMS RESPECT FOR COPYRIGHT

The last few decades and especially in recent years, there is often something to do about copyright. It is according to some outdated and unnecessary to others. The old institutions jaunty try to treat  the digital world as if nothing has changed and therefore repeatedly unleash storms of criticism. Recently, Dutch collecting society Buma/Stemra was in the news again when this organization - for the second time  - announced to treat the embedding of videos as a new publication. History repeats itself. In the 80's it became clear that the transmission by cable of television programs that were originally transmitted over the air had to be considered as a new publication. Since then every technique, every innovation, every change turned out to be a new publication. At the same time the full rate was charged for this publications corresponding to the rate for the original publication. This was based on the impure reasoning that any publication would create a new market of users. In short, if a market consists of a certain number of buyers, then the same market later turns out to be  5 times the number of buyers. Meanwhile the situation is beginning to change, not everything is considered as a new publication, because according to recent case law of the European Court of Justice, the notion 'public'  was neglected a bit too much. That is one side of the story.

Like the reality the law is constantly moving and rules are changing under the influence of altered ethical or political ideas. Therefore, the law and regulations have to be interpreted. Also this interpretation is an ongoing process. Who relies on "rules are rules" has not understood much. Equal cases should be treated equally, the so-called principle of equality, does not mean that unequal cases should be treated equally, especially when this leads to unequal or unreasonable consequences. Very important too is the interest to be protected. We return to copyright. What was that again?

That is the right of the creator of music, a book or a movie to determine what happens to the product he has made. He might say: I keep it all for myself. He might also say: I think it's good this product is made public via radio, television, the Internet or in a theatre and I think it is good that it is reproduced on a CD, DVD or in a book. In short: the right of the maker to be rewarded for his creative achievements. Leaving aside the question whether it is smart to transfer the management of your rights to an organization like Buma/Stemra, such an organization has to take into account the interests of the maker. One of those interests is that the right of the maker is not put under pressure by social resistance. This resistance is caused by a lack of understanding reality and the functioning of law, and that is harmful to the respect for copyright.

Copyright transfer

As a writer of music you can choose to join a collecting society like PRS or Sacem. You sign a contract with such an organization. A contract always has two sides: it gives rights and obligations. This is also true if you buy something. The seller delivers something, gives you the ownership and guarantees the good quality of the product, you pay and take the delivery.

The same applies to an operating contract. To PRS or Sacem the author transfers the rights to his music, not only of existing repertoire, but also of future repertoire. These organizations exercise and enforce all rights, anywhere in the world. In practice, they are the ones to give or refuse permission to make music public or to reproduce it, they determine the conditions and take action against infringements of music copyright. In return PRS and Sacem are obliged to pay received monies to the connected musicians.
As a composer you also have to ensure that you dispose of all rights and it is forbidden to give the idea or the impression that you or someone other than  PRS or Sacem may exercise and enforce  music copyright to the repertoire.

In short, PRS and Sacem act in your place and as a composer you have nothing more to tell about your music. If you want to give an outdoor concert  you have to have permission to play your own songs, the same goes for recording your own CD.

Copyright permission: the Dutch approach

Imagine you are a collective of musicians and other artists and you decide to realize a long cherished dream. You want to record music on a double DVD and on a CD. There are several composers and musicians involved. Some of these composers are members of collecting society Buma/Stemra, others manage their own rights. Then you know that you have to have permission from Stemra to record and reproduce the musical works of the members. That sounds easy, but it is not.

Late October 2011, an information request was sent to Stemra. This is followed by a quick answer. It says that for the recording of music added to a film permission of Stemra is needed. This can be arranged through an application form for an audiovisual independent production. The same day the information is sent about making an audiovisual independent production. Because not everything is clear - it is an initial application - more information is requested. In the second half of November, a message was received saying that this production is a registration of an event and therefore falls under the heading "Registration". Stemra uses fixed rates for this type of production, they can be found in the relevant brochure stating that all music projects where music is recorded must be reported to Stemra. After the applicant has explained the situation again he receives a message late November saying that Stemra for her claim will look at all the authors (composers / lyricists) and their possible membership of a (mechanical) rights organization. Added to this is the following sentence: "If music is released on DVD, we see that as a commercial release."

Then the applicant receives all forms relating to the use of existing repertoire in audiovisual productions (commercial productions). Costs: Euro 144.00 (composition and recording together) for every 30 seconds or part of it per musical work including 50 copies within the Benelux and Euro 198,00 (composition and recording together) for every 30 seconds or part of it per musical work including 50 copies within Europe.

That would mean the end of this project. Meanwhile, the applicant turned to VMR for advice. The advice: explain it again and keep going. Early January, after the situation was explained once again, Stemra sends the same message as the end of November. Then the situation was explained once more time and then follows the message that Stemra unfortunately can not deal with the application: "This requires that you have to complete fully the application form for an audiovisual independent production."

VMR helped applicants fill in the form, with the warning that probably something will not be quite all right, but in itself the situation seems clear.

Mid-February 2012, everything is settled, so it seems. There is permission from Stemra, at a favorable rate. But then it became clear that the permission only referred to the audio CD. That is reported to Stemra. In response, this organization states that it is not possible to process CD and DVD as one product and the applicant is sent a new application form.

To be continued.

DUTCH COPYRIGHT ORGANIZATION SUPERVISED BY COMPETITION AUTHORITY?

Left Wing Liberal MP Kees Verhoeven has proposed to dedicate the supervision of Dutch collecting society Buma /Stemra to a newly to form supervisor, which brings the Competition Authority, the Independent Post and Telecommunications Authority and the Consumer Authority together. Verhoeven finds that the current Supervision Board is not working properly.

The Competition Authority was established to enhance competition in markets where competition is possible and choice and better value for money for consumers could be achieved. Before that the Independent Post and Telecommunications Authority was established to stimulate the liberalization of sectors that were previously monopolized by government companies. For new providers this created new opportunities to access new markets and to compete. The Consumer Authority is for collective consumer interests. The government has decided to merge these authorities because their fields are partially overlapping.

The proposal of MP Verhoeven to dedicate the supervision of Buma /Stemra to the newly to be formed supervisor deserves sympathy. The call for better supervision of Buma / Stemra is not from today or yesterday, and has to do with the misconduct of an organization towards its own members and towards its users (broadcasters, shops, etc.). Yet it is not logical.
As mentioned, the Competition Authority was intended for general competition supervision and the Independent Post and Telecommunications Authority to monitor specific markets. To bring Buma / Stemra under such supervision presupposes that a market for the exploitation of copyrights either exists or that it is a sector that is liberalized or should be. That is not the case. The government has never suggested to promote a competing market. In my view this should happen. Buma / Stemra has a virtual monopoly: this organization is the only one with an official government license to exercise the exploitation of copyrights. And that is exactly the problem. Monopolies may hinder market access, free pricing, and innovation.
It seems useful if the government would encourage competition by alternatives like Creative Commons and VillaMusicRights.