Less admin, more cash? Viscopy hands operations to CAL

The 1709 Blog has learned from its Australian friend John Walker that Viscopy (the Australian sister to the UK's Design and Artists Collection Society ) is effectively ceasing to operate as an organisation in its own right: its management functions are to be taken over by Copyright Agency Limited -- a body which was appointed by the Commonwealth Attorney General and the Copyright Tribunal to manage various statutory licences. According to a statement released by Viscopy:

"We are contacting you to let you know that Viscopy and Copyright Agency have entered into a services agreement whereby Copyright Agency will provide all services to Viscopy’s members and licensees. Viscopy will retain its board and its membership.

We anticipate the agreement will result in additional income to artists through reduction of administrative fees and expanded licensing services, and simplify the licensing processes for text and images.

The agreement is anticipated to take effect by mid 2012 subject to regulatory approval, and will be reviewed by both organisations in three years. ...."

Keep in Touch With the Dutch

Melchior the Magi

Torrent Freak reports a sad tale about Netherlands collecting society BUMA/Stemra which does little credit to either the society or a board member of that society - one Jochem Gerrits.

The tale involves a Dutch composer, Melchior Reitveldt, who wrote a work for an anti-piracy campaign being run by BREIN. The video was shown at a film fesival - so far, so worthy. But then our hero found the video turning up on other commercial DVDs including such slow sellers as Harry Potter! No money was paid to Melchior so he alerted his local collecting society BUMAS/Stemra - expecting their aid. Aid turned up all right in the shape of caped crusader, and BUMA/Stemra Board member Jochem Gerrits. The proposal was this.......can you see where this is going, oh jaded music industry types? Idealists, look away now.

Gerrits offered to help on condition of Melchior assigning the copyright to Gerrits and thus entitling Gerrits to 1/3 of the revenue. (How Gerrits found out about our hero's problem is a complete mystery!) Torrent Freak provides all those interested with a delicious link to a POWNews recorded conversation between Melchior's financial adviser and his would-be saviour.

Melchior Reitveldt is claiming Euros 1.3 million. Jocchem Gerrits is claiming he can help.

BUMA/Stenmra quote of the week: "1 euro in, 1 euro out. Like all associations, Buma is not about making profits. The same applies to Stemra. Our exclusive function is to represent the interests of music authors"

Make Mine a Brazilian

To add to Ben Challis’ report from Portcullis House, the event attendees were provided with a useful four page leaflet produced by Pictfor, co-the organisers of the event, for Consumer Focus . It led with the reminder that Recommendation 3 of Professor Hargreaves Report recommended that codes of practice for societies be introduced on the basis that the UK should be supporting moves in Europe for "a framework for cross border copyright licensing". Chris Johnstone from Music Choice, explained that the 2003 Music Choice complaint to Europe had been based upon a European licensing situation whereby potential digital users had to acquire licences for musical works from 4 j-v digital licensing bodies and 27 societies – and that is before one begins on the record labels. And British Copyright Council President, Maureen Duffy, reminded us that that the UK cannot possibly address this without reference to the plethora of international treaties and bodies (and anagrams) that operate in the sphere of IP regulation. Frances Lowe from PRS for Music, stressed that there was transparency of licensing tariff calculation – for users – and transparency of revenue calculations – for right owners. These are both commercially sensitive and need to be considered separately. These monopolies are managing a few strands of monopolistic rights and they have to serve both the user and the owner constituencies all the while balancing competition considerations against the demands of the single market.

So, for the benefit of those few collecting society junkies across the globe, who cannot get this subject entirely off their minds, Jeremy Silver’s answer to his own question deserves a wider airing. Silver reminded the gathering of the competition/single market balancing act and asked how we should proceed in the future – seeming to imply a rejection of new wine in old bottles as a solution. He endorsed the public need for public access to rights ownership – access which would make life simpler for would be licensees. This access to ownership data in the music publishing industry is being addressed by the Global Repertoire Database initiative. But, suggested Silver, the should be a detachment between the function of data gathering and management and the function of licensing, royalty collection and distribution. Those junkies should consider the model operating in Brazil. The CISAC website shows 11 collecting societies of varying stripes in Brazil. But the satellite system of membership bodies are circling a centralised data management system. I am sure there are readers of this blog who will be able to comment on issues such as transparency, competition for members, and probity (go, on, you know who you are), but Jeremy Silver’s wine bottle is out there, down in South America, just waiting for the Europeans to adopt for their terroir.

Collecting Societies Again

The press office of the Bundesgerichtshof (BGH) informs us that the copyright senate of the BGH has issued a judgment on the calculation of collecting society tariffs (BGH, 27 October 2011 - I ZR 25/10, press release available here).

In respect of indoor events, it is the established practice of German music collecting society GEMA to calculate the royalties it collects based on the size of the room where the music is played. To GEMA at least, it seemed logical enough to apply the same to outdoor events such as street fairs and Christmas markets. Accordingly, it took the size of the entire venue as reference point, from the first to the last stall or from the first to the last wall enclosing the space where the event took place (it's Friday, time to rhyme...).

As such things go, the organisers of a number of such outdoor events disagreed with GEMA's calculation methods. In their view, only the space where the sound from the stage can actually be heard should be taken into account. From that space, one should deduct the areas where visitors could not go, i.e. the stalls, the areas where they could not stay for more than a fleeting amount of time, i.e. public transport areas, and the areas where the music from the stage was overlaid with other music, i.e. music played at individual stalls.

Both the court at first instance and the court of appeal decided that the GEMA was entitled to determine royalties according to the size of the entire venue. The BGH confirmed these decisions. It pointed out that it is typical for outdoor events such as street fairs and Christmas markets that the audience in front of or in good listening distance to the stage constantly changes and new listeners replace the old. Consequently, the overall number of people listening to the music is substantially larger than the number of people the space where the music can be heard clearly could hold at any one time. The court added that the music played on stage usually characterises the entire event and that it would be unreasonable to ask GEMA to attend every single outdoor event in the country and measure the space where the music from the stage is clearly audible, and the space within that range where the audience cannot or must not stay or where other music overlays the music emanating from the stage. For reasons of practicality, then, GEMA's method of calculation was deemed appropriate.

I can't help remarking that a constantly changing audience - whether on a market or in a club - means that many people listen to little bit of music, whereas a constant audience - whether at an indoor or an open air concert - means that fewer people listen to more music. If 1,000 people listen to 10% of the music, isn't the end result the same as if 100 people listened to 100% of the music?

Also, I'm not exactly a science whiz, but shouldn't the laws of physics enable you to calculate the area where the music is audible if the organiser lets you know how loud he's going to play it? Throw in a plan of the site - which must exist because German authorities would not allow the organisers to put up stalls willy-nilly - and you can calculate the area covered by stalls as well as any areas where visitors cannot or must not go. Which leaves the musical overlay issue. While personally I find involuntarily listening to random mash-ups of songs that weren't so great in the first place deeply annoying, it appears to be something the organisers of such events seem to encourage for some reason. Otherwise surely they could just play music on the big stage and make putting up a stall conditional upon not playing your own music. So in my view, there is no good reason for deducting the areas of overlay.

We shall all have to wait for the written judgment to be released in order to find out why the BGH thinks the solution I just came up with is less than brilliant. In the meantime, I look forward to any comments or alternative approaches.

How do you solve a problem like Orphan Works?

Yesterday evening, a milestone in the ongoing discussions about copyright and (more importantly) orphan works was reached. A Memorandum of Understanding (PDF) to approve the digitisation and making available of out-of-print books and journals was signed by representatives of European rights holder societies, creators, authors and libraries. It has taken nearly a year, but all stakeholders in the process were finally able to agree on three main principles whichwould allow cultural organisations to make a greater portion of their collections available online:

1. Agreements must be negotiated on a voluntary basis by all relevant parties to determine what is to be digitised and to ensure that the items in question are no longer in "commerce" (works which were once published and which neither publisher nor author intends to re-print and sell again). Moral rights are key to this process and authorship(where known) must be acknowledged;


2. Collective licences may be granted by collection management organisations where a substantial number of authors and publishers are represented. Digital library projects must be widely publicised and rights holders given the option to opt out of any collective licensing scheme;


3. Collection management organisations may limit licences to those of represented rights owners only (rather than on behalf of all rights owners) if agreements include trans-border and/or commercial uses of works.

However, whilst an agreement of this kind is clearly satisfactory to rights holders, it remains to be seen whether libraries and other cultural institutions will truly benefit. The optimism of Olav Stokkmo (CEO of the International Federation of Reproduction Rights Organisations) that this MoU will solve the problem of orphan works is misplaced; large numbers of orphan works that reside in libraries and archives were never 'in commerce' (they are often unpublished, such as letters, diaries and manuscripts) and as such one wonders whether the scope of the MoU would extend to them. In addition, the issue of orphan works covers all types of work; the MoU deals only with text-based works where rights clearances are easier because there is traditionally one author and one publisher, whereas for audiovisual works there are often many independent rights holders to trace.

EU Member States are not required to implement the terms of the MoU,as it has little or no legislative weight. There remains an expectation that legislation from the EU on orphan works is imminent,with the issue currently being discussed at length in the UK as aresult of the Hargreaves' Review of Intellectual Property.

Photo: 'More old books...' by guldfisken (Flickr), reproduced under CC-BY-2.0

SGAE investigated over "misappropriation of funds"

Spanish collecting society SGAE has featured in this weblog a couple of times. The Court of Justice ruling in Case C‑467/08, Padawan SL v Sociedad General de Autores y Editores de España (SGAE) has given quite considerable food for thought, and there's also the matter of the organisation's local battle with EXGAE.  It now seems that SGAE has been hitting the headlines again -- and not for the best of reasons.

Billboard reports that the organisation has been raided by Spanish police as part of an investigation of "misappropriation of funds".  Nine people, including president of SGAE's Board of Directors Eduardo Bautista, were detained, while offices and private homes were searched.  The investigation is said to have been triggered by a 2007 complaint filed by a number of organisations representing internet, computer and the restaurant trade; the main target is said to be SGAE's subsidiary SDAE -- the Digital Society of Authors.

Thanks, Jonathan D. C. Turner (13 Old Square), for spotting this item.

Spanish civil war? SGAE takes aim at EXGAE

EXGAE: serious lobbying
or smear campaign?

"Spanish Collecting Society Targets Group Proposing Alternative Royalty System", by Catherine Saez (on Intellectual Property Watch here) describes what looks a little bit like a declaration of war.  The incumbent copyright collecting society Sociedad General de Autores y Editores (SGAE) -- an organisation well known for its litigation before the Court of Justice of the European Union -- has reportedly told alternative royalty model lobby group EXGAE to cease activity or face some litigation of its own.  The legal threats are based on unfair competition and trade mark infringement since, say SGAE, EXGAE is pronounced “esgae” in Spanish.

SGAE: a target for criticism and
vilification from several sources

The IP Watch article explains that EXGAE claims to be "not against copyrights and royalties" but that it disagrees with the manner in which royalties are processed and distributed by the SGAE which, according to one spokesperson "only promotes well-known artists and does not support the creation and dissemination of music in the digital era".  Among other things, EXGAE encourages the use of CopyLeft music, under Creative Commons with commercial use for small shops wishing to have music in the background.

By now, according to the 1709 Blog's calculations, something further must have happened. Can anyone advise?

Isn't it urgent now I've hesitated for so long?

Ordinary people may be forgiven for believing that things usually get more urgent the longer you put them off. Anyone who considers filing a motion for a preliminary injunction in Germany should be warned that the law takes quite a different view of the matter.

German music collecting society GEMA and eight other collecting societies learned that lesson the hard way a couple of days ago, when the Regional Court of Hamburg (Landgericht Hamburg) dismissed their motion for a PI against YouTube (judgment of 27 August 2010, file reference 310 O 197/10).

In April 2009, GEMA and YouTube started negotiations concerning a licensing agreement for the GEMA music repertoire. Negotiations were broken off in May 2010 because the parties had somewhat different opinions as to what would constitute a reasonable licensing fee. GEMA and the other collecting societies then applied for a PI against YouTube to have YouTube enjoined to remove 600 music videos from its video platform. Under German law, however, you can only obtain a PI if the matter is urgent. After all, the rationale behind preliminary proceedings is to either "freeze" the status quo or create an interim situation in order to secure your rights and prevent matters from getting worse.

So as a general rule, one should apply for a PI within a couple of weeks - a couple of weeks since what happened, though? When the negotiations failed, the collecting societies were very quick indeed to file the PI motion. However, the crucial point was that they had been aware of the alleged infringements since April 2009 at the latest. It did not matter that GEMA and YouTube had been in negotiations. Therefore, the court dismissed the motion for lack of urgency.

I agree. If you can negotiate for a year and do not mind the allegedly infringing videos being available during the time, the matter can arguably not be so very pressing. If you've waited that long, surely you can wait a bit longer and file for ordinary proceedings... Yet not all was bad for GEMA et al. The judges let slip that they believe a lot militates for the collecting societies having a valid copyright claim against YouTube to cease and desist from making the videos in question available to the public.

Spokesman for YouTube's parent company Google, Kay Oberbeck, said that YouTube is willing to share the proceeds it makes from music with the rightholders, and has invited the collecting societies to return to the negotiating table. They have yet to decide whether to appeal the decision, concentrate on the main proceedings instead, or resume negotiations (or maybe all three).

I agree they should try and come to an amicable solution. Not just because the logos look so nice together (although they do), but mainly because while a lengthy court battle may very well establish that YouTube has a duty to take down infringing videos, it is not likely to do much for musicians' and composers' bank accounts.

EU Internal Market IP Agenda for 2010/11

Hot off the press at Europolitics today, is a report on Internal Market Commissioner Michel Barnier's agenda for IP initiatives. In speaking to the Euro Parliament's Legal Affairs Committee on Monday 22nd, Barnier identified initiatives on patents, trademarks, and internet piracy.

As far as copyright is concerned he outlined two legislative proposals that will impact authors - one on orphan works and the other on collective management of authors' rights.

Reflecting that "approximately 40% of library collections are "orphans".........Barnier indicated.....that he agreed with the principle of mutual recognition between national systems advocated by the JURI committee and mentioned a proposal by the end of 2010."

As far as collective management is concerned, the very dishy Barnier (no apologies for betraying personal taste here) is supportive of a directive that would "facilitate the obtaining of cross-border licences and encourage development of the 'lawful offering' in the EU at a competitive price" and it appears he may either propose a green paper followed by a directive in 2011, "or a directive as of this year". Handsome and supportive of the administrative convenience, pro-author and consumer-friendly business model of collective administration. Swoon.............this man has everything!