There has been slow progress on exceptions and limitations since our last report in June. The next WIPO Standing Committee on Copyright and Related Rights (SCCR) will take place from 4-18 November 2016. ICMP will be present and report back.
Concerning the discussions on traditional knowledge and folklore, the 30th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) was held in Geneva from 30 May to 3 June, as previously reported. Members agreed on a new text that contains more options on definitions. The terms include: “Traditional Knowledge associated with Genetic Resources”, “Country of Origin” and “Country Providing Genetic Resources”. This agreement means that the talks will move forward. ICMP monitors this issue due to the possible inclusion of words from songs, poetry, and rhythm in a potential instrument.
The next WIPO General Assembly will be held between 3 – 11 October in Geneva.
In other news, WIPO has appointed Sylvie Forbin, a diplomat and copyright industry representative, as the next head of the WIPO Copyright and Creative Industries Sector. Forbin started in her new role on 19 September.
1.2. The Marrakesh Treaty
The Marrakesh Treaty that facilitates access to published works for visually impaired persons has received the twenty ratifications necessary for coming into force. They come from: Argentina, Australia, Brazil, Canada, Chile, Ecuador, El Salvador, Guatemala, Israel, India, Mali, Mexico, Mongolia, Paraguay, Republic of Korea, Democratic People’s Republic of Korea, Peru, Singapore, the United Arab Emirates and Uruguay. The Treaty will enter into force on 30 September 2016.
The European Union will not be in a position to ratify the Treaty until a judgment is delivered by the Court of Justice of the European Union (CJEU) on whether its scope falls under the exclusive competence of the EU, or under the mixed competences (meaning that Member States will also be obliged to ratify the agreement). The opinion of the Advocate General of the CJEU was delivered on the 14 of September. It states that the European Union (EU) has exclusive competence on ratifying the Marrakesh Treaty. The Advocate General’s view is likely to be followed by the Court. The final ruling is expected in October or November.
ICMP is still concerned that many countries are using this Treaty as an excuse to propose reforms to their own national IP laws that would clearly weaken copyright.
1.3. Free Trade Agreements (FTA)
ICMP closely monitors progress on Free Trade Agreement (FTA) negotiations because these agreements are important for establishing and maintaining a sound system of Intellectual Property Rights (IPRs) protection and enforcement at international level.
1.3.1. Transatlantic Trade & Investment Partnership (US-EU TTIP)
The 14th round of US – EU negotiations on the Transatlantic Trade and Investment Partnership (TTIP) was held in Brussels from 11 – 15 July. Discussions related to IPRs and were mainly concerned with industrial property (designs, geographical indications etc.).
There have been growing doubts as to whether the TTIP negotiations will be successful. Both U.S. Presidential nominees Clinton and Trump have hinted that they are not committed to this FTA, so the best chance for its success is to finish talks during the remainder of the Obama administration.
Meanwhile, on 28 August, German Vice Chancellor said that the talks with the U.S. had de facto failed. In addition, the French Secretary of State for Foreign Trade said there is “no longer any political support” in Paris for TTIP. Austrian Economic Minister has also called for a stop to negotiations, while Belgium’s Prime Minister has said the talks “seem unbalanced”.
Officially, both the US and the EU are very much committed to the agreement and EU Commissioner Malmström and US Trade Ambassador Froman continue to talk regularly and are holding ministerial discussions in Bratislava in September. Also this month, twelve EU Member States (Czech Republic, Denmark, Estonia, Finland, Ireland, Italy, Latvia, Lithuania, Portugal, Spain, Sweden and the United Kingdom) published an open letter supporting the TTIP. The countries have urged EU Trade Commissioner Cecilia Malmström to focus her attention on remaining issues in the talks with the US.
1.3.2. Trans-Pacific Partnership (TPP)
TPP is yet to be ratified by its twelve signatories and this might be a challenge especially in the US as both Trump and Clinton oppose it. However, President Obama intends to call for a vote after the elections in November. The remaining eleven countries have either ratified or supported the deal. In Australia however, a new report, issued by the Productivity Commission – a key policy adviser to the Government – has cast doubt on the term of copyright.
TPP is important for ICMP as it will require the 12 participating countries to have a minimum copyright term of protection of 70 years p.m.a (post mortem auctoris), obliging countries like Canada and Japan to increase their current copyright protection, which currently stands at 50 years p.m.a., to 70 years p.m.a.
1.3.3. EU Mexico FTA
On the 13 – 14 June, the European Commission (EC) and Mexico held the first round of negotiations for the modernisation of the Economic Political Coordination and Cooperation Partnership Agreement (Global Agreement) in Brussels. This agreement has been in force since 2010 and aims at adapting relations between both regions to the new realities in the field of trade and investment.
During the first round of negotiations, the working methods and organisation were established. A first exchange of content for the new agreement also took place. A second negotiation round will be held in Mexico this coming fall.
As reported, the EC has asked ICMP for concrete examples of any concerns that the music publishing community is facing in Mexico in terms of legislation, IPR enforcement, procedures, legal systems, etc. ICMP is liaising with our Mexican MPA, EMMAC, and we have transmitted our concerns to the EC in this regard.
1.3.4. EU-Canada Comprehensive Economic and Trade Agreement (CETA)
On 5 July, the EC announced that CETA must be ratified by each EU Member State rather than by the EU as a whole, which could eventually result in the deal not coming into force. Romania and Bulgaria will not ratify the deal as a result of Canada still requiring travel visas from both countries’ citizens. And in Germany, on 31 August, the “No to CETA” campaign handed in a constitutional complaint to the country’s Federal Constitutional Court.
European Trade Commissioner Malmström held a stakeholder roundtable on 19 September to present the state of play of CETA in the EU. ICMP, as a member of the Civil Society Dialogue attended the meeting. The general mood around EU FTAs is pessimistic. Despite this, the EC remains committed to having CETA enter into force. In fact, this negative feeling is one of the reasons that even though trade deals are exclusive competences of the EU, the EC gave in to Member States’ demands and allowed CETA to be considered as a mixed agreement (shared between the EU and Member States). This means that the trade deal has to be ratified by both the European Parliament (EP) and all 28 national parliaments. When CETA is ratified by the EP, it will become applicable provisionally. There is however no deadline for national parliaments to enact the trade deal.
1.4 Collective Management Organisations
Since our last report, ICMP has been liaising with our members and collective management organisations (CMOs) to address various issues of concern:
The proposal to implement the European Directive on Collective Rights Management has been transmitted to the Greek Parliament. Contrary to what we previously reported, the Government has changed the draft bill and it no longer forces the Greek CMO (AEPI) to operate as a not for profit CMO controlled by rightsholders. This means it does not have to comply with commonly accepted standards of governance, transparency and accountability. AEPI is considered in the bill as an independent management entity. ICMP continues liaising with our Greek MPA (HMPA) and with the Greek Intellectual Property Office (IPO). During the summer we sent a letter to the Ministry of Culture raising concerns about the situation.
Despite the change of management in the Spanish CMO SGAE in March, the situation at the CMO is still worrying. There continues to be no effective and independent management structure and the distribution rules for income received from television are unfair and discriminatory towards publishers and international authors.
A plan to solve the distribution rules for income from television was expected to be presented to members of SGAE at a meeting in September. The meeting was a failure and resulted in no clear proposal to take to the Extraordinary Board for approval. It looks like nothing will be solved before the December distribution, meaning another year will be lost. ICMP Board and Secretariat are liaising with our members in Spain, CISAC and SGAE and assessing the best way to proceed.
A previously reported, ICMP has been sharing our concerns with CISAC on RAO’s data management. CISAC visited RAO in spring and was told that RAO had agreed to focus on remedying technical issues such as improving RAO’s standards of documentation, meeting CISAC’s rules on distribution and complying with CISAC’s Professional Rules. However, according to various Russian music publishers, RAO stated in June that CWR is not a priority for them and suspended their CWR testing for an uncertain term with no further explanations being given. ICMP is liaising with CISAC and a number of Russian publishers in this regard.
2.1. Copyright package
The EC presented its copyright package on 14 September so as to amend the current Copyright Directive. The four main issues of importance for ICMP are the following:
- A) Exceptions and limitations to copyright
The proposal introduces a mandatory exception for “illustration for teaching”, including sheet music. It is positive that the Directive recognises the licenses already available in the market and therefore gives Member States the possibility to exclude specific types of works (i.e. sheet music) to the extent that adequate licenses are easily available.
2. Value gap (transfer of value)
The proposal introduces an obligation on user uploaded platforms that store and provide access to the public to copyright protected works and perform an act of communication to the public to conclude licensing agreements with rightsholders.
- Publishers’ rights
The Proposal clarifies that when an author has transferred or licensed a right to a publisher, this is enough legal basis for publishers to claim a share of the compensation for the uses of the work made under an exception or limitation to the transferred or licensed right. This provision will be helpful for Member States when trying to overturn the misinterpretation brought about by Reprobel.
- Fair remuneration & transparency in contracts of author and performers
The Proposal introduces provisions on transparency obligations, dispute resolutions mechanisms and best seller clauses (“Contract adjustment mechanism”).
The Package also contains a proposal for Regulation laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions. This proposal introduces the so called country of origin (COO) rule with regards to online transmissions. This rule means that clearing of the rights “be deemed to occur solely in the Member State in which the broadcasting organisation has its principal establishment.”
The COO principle would apply only in terms of ancillary services (supplementary copyright related services) and excludes “subsequent communication to the public or reproduction of content, which is protected by copyright or related rights which is contained in the ancillary online service”.
ICMP is closely following developments and preparing its strategy for the next phase of legislation taking place in the Council and in the European Parliament in the coming months.
3.1 United States
As you know, on 30 June, the United States Department of Justice (DoJ) issued a decision that performance rights organisations (PMO) are no longer allowed to engage in fractional licensing. The decision was widely condemned by the music industry, including ICMP. On a positive note, a federal judge on 16 September declined to apply this decision of the DoJ. The ruling only concerns consent decrees from the BMI, and the issue is still unresolved in relation to ASCAP.
ICMP is also concerned about the proceedings regarding the US Copyright Royalty Board (CRB) defining the mechanical rates paid by digital services and other non-recorded music entities and the that fact that Sony Music Entertainment (SME) is currently participating in these proceedings. We believe that SME does not have a direct interest in the setting of mechanical rates for digital services, and is neither a licensor nor a licensee and is against fair remuneration. ICMP strongly supports the motion of other negotiating parties, including our member NMPA, to remove SME from the process.
ICMP will continue liaising with NMPA and will be following up on both matters closely.
3.2. Republic of Macedonia
Publishers are concerned about a recently founded collective rights management organisation (SOKOM MAP), and about the fact that the Government seems to be granting licenses to this organisation (CMO). The concern arises from the fact that SOKOM MAP fails to take into account the nature of this CMO’s activities, its members, its international agreements or its international recognition. In addition, having seen the tariffs offered by SOKOM MAP, there are concerns that if these should enter into force, authors rights would be devaluated and the use of their works would be offered almost free of charge.
In liaison with our Serbian members, ICMP wrote a letter to the Macedonia Government raising the above concerns.
3.3. The Netherlands
Stichting de Thuiskopie (the CBO in charge of the home copy levies) in the Netherlands is pushing Buma Stemra, music CMO, to not distribute compensation from private copying levies to music publishers. Stichting de Thuiskopie that as a result of the Reprobel ruling, music publishers are no rightsholders with regard to home copy levies and is requesting Buma Stemra to suggest a change in its current distribution program before December 1st. ICMP, in liaison with our members NMUV and VMN, has sent a letter to Stichting de Thuiskopie raising concerns and calling for a re-consideration of its position.
4.1. CEEMPC16 conference in Prague
ICMP’s Central and Eastern Europe Music Publishers Congress took place on 15 September in Prague. There were some 130 people from music publishing, collective management, users and other key industry figures present and discussions focused on licensing initiatives, as well as developments in collective rights management at international level.
There were two main conclusions of the conference: CMOs must improve their databases and for these they should be looking at existing models in order to avoid duplication and unnecessary building costs, and that CMOs should grant access to music publishers of unidentified funds (UP files). ICMP will be issuing a resolution and a press statement in this regard.
Also in Prague, ICMP’s Production Music Committee met and discussed the future of television as well as new technologies available for CMOs to improve accuracy in distribution.
4.2. Other ICMP events
On 13 July, ICMP hosted an EU Training Day at its Brussel’s office. Items on the agenda included an overview of the EU institutions, a landscaping of the new European Parliament and Commission and the role of a trade organisation.
WIPO – World Intellectual Property Organisation; SCCR – Standing Committee on Copyright and Related Rights; IGC – Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore; EU – European Union; FTA – Free Trade Agreement; IPR – Intellectual Property Rights; TTIP – Transatlantic Trade and Investment Partnership; TPP – Trans Pacific Partnership; CETA – EU-Canada Comprehensive Economic and Trade Agreement; EC – European Commission; CISAC – International umbrella of collecting societies; CMO – Collective Management Organisation; AEPI – Greek CMO; SGAE – Spanish CMO; RAO – Russian CMO; DoJ – United States Department of Justice; BMI – US Collecting Society; ASCAP – US Collecting Society; SOKOM MAP – Macedonian CMO