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European Commission for a Directive on collective management and related rights

The proposal from the European Commission for a Directive on collective management and related rights and multi-territorial licensing of rights in musical works for online uses in the internal market (hereafter Collective Rights Management Directive) was a good start to put an end to some of the unreasonable practices by collecting societies around Europe.

On 9 July, the Legal Affairs Committee (JURI) voted on the report lead by Marielle Gallo (EPP, France) amending the Collective Rights Management Directive. The report passed unanimously.

Broadly speaking, the final text brokered by Gallo represents an improvement on the original proposal from the European Commission. One of the main improvements is on the transparency of the collective management organisations (CMOs). The list of data that have to be public has been significantly extended, including the repertoires and rights managed, standard licensing contracts and applicable tariffs, a list of representation agreements and any information on works for which one or more rightholders have not been identified. This is a precondition to ensure fast, efficient and transparent licensing.

On licensing specifically and the relation between users and CMOs, EU case law on tariffs has been codified and the amendments to the text propose to speed up the process of granting licences, which would allow innovative services to emerge faster in the EU market, to the benefit of all stakeholders. The redistribution of the amounts collected to artists and creators should also happen faster. The rules will apply to all CMOs regardless of their financial situation or number of employees. The possibility for CMOs to limit the re-use of information has been deleted, which is very important to the much-needed freedom for content creators to change CMOs.

The bad news however is that the Committee has deleted some important provisions. References to the Services Directive (2006/123/EC) were deleted, which is likely to result in a long and tedious legal battle to clarify the situation, since there is no exception from competition law and the Treaties still apply. Much worse is that the Directive is essentially toothless now, as the provisions on sanctions have been deleted. While the individual freedom of artists to dispose of their work is clearly recognised in the text voted in JURI, this freedom is significantly weakened by the possibility offered to CMOs to determine rules preventing misuses of the right of artists to withdraw their rights or terminate their authorisation. It is difficult to imagine that such a rule will create harmonisation and it will definitely create legal uncertainty.

Finally, some parts constitute an improvement but they could have gone further. Collecting and keeping money collected by CMOs on orphan works is problematic. The European Parliament is trying to improve the situation by reducing the time the money can be kept and by putting rules into place to avoid misuse of this undistributed money. However, the idea of having a completely separate fund for this money has been rejected. Although the JURI’s vote to recognise non-commercial licenses is a good first step, it falls short of a proper recognition of the artist’s autonomy to choose a licence. According to the adopted text, CMOs will have to allow their members to grant non-commercial licences, but it is unfortunate that Ms Gallo’s initial proposal to allow creators to have their rights managed on a per-work basis, was not in the compromises. However, it seems that one of Mr Engström’s (Greens) amendment, that was adopted, does offer this possibility to artists. Let’s hope that this provision survives the final first reading vote in a European Parliament plenary session later this year.

If there are some very good amendments, there are also some bad ones and some which could have been better. However, in light of tenor of many of the amendments she was faced with, the Rapporteur did quite a good job, and having a unanimous vote on a legislative copyright dossier is a rare achievement. The discussion is however not over, so let’s just hope that the positive developments will be maintained.

The final report including the compromise amendments is not published yet.

Proposal for a Directive of the European Commission http://ec.europa.eu/internal_market/copyright/docs/management/com-2012-3722_en.pdf

Draft Report from Marielle Gallo (EPP, Rapporteur on the file) http://www.europarl.europa.eu/RegistreWeb/search/simple.htm?language=EN&reference=2012%2F0180%28COD%29&code_type_docu=TPRR

Proposed amendments by the other members of the Legal Affairs Committee http://www.europarl.europa.eu/RegistreWeb/search/simple.htm?language=EN&reference=2012%2F0180%28COD%29&code_type_docu=TAMEPR

(Contribution by Marie Humeau – EDRi)

EDRi-gram newsletter – Number 11.14, 17 July 2013

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