Transcript Forth “Vienna Music Business Research Days” University of Music and Performing Arts Vienna, 20-21 June 2013 The Proposal of the EU Commission for.

Forth “Vienna Music Business Research Days”
University of Music and Performing Arts Vienna, 20-21 June 2013
The Proposal of the EU Commission
for a Directive on Collecting Societies
and Cultural Diversity – a Missed
Opportunity
Prof. Dr. Adolf Dietz
Department of Copyright Law
Max Planck Institute for
Intellectual Property and Information Law
Munich
Vienna Music Business Research Days
Contents

The cultural function of copyright law in
general

The cultural functions of collecting societies
themselves

The Proposal of the EU Commission for a
Directive on Collecting Societies and Cultural
Diversity – a pure lip service?

The frustration of a practicable solution

Conclusion
Vienna Music Business Research Days
The cultural function of copyright
law in general
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Infosoc or Copyright Directive
(9) Any harmonization of copyright and related rights must take as a basis a
high level of protection, since such rights are crucial to intellectual creation.
Their protection helps to ensure the maintenance and development of
creativity in the interests of authors, performers, producers, consumers,
culture, industry and the public at large. …
(12) Adequate protection of copyright works and subject-matter of related
rights is also of great importance from a cultural standpoint. Article 151 of
the Treaty requires the Community to take cultural aspects into account in its
action.
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Charter of Fundamental Rights of the European Union
The Union contributes to the preservation and to the development of these
common values while respecting the diversity of the cultures and traditions
of the peoples of Europe as well as the national identities of the Member
States and the organization of their public authorities at national, regional
and local levels; …
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Finally, the apparent lack of interest of the competent services of the
EU Commission concerning the cultural role and functions of
copyright law in general and of collecting societies in particular
contrasts in a rather shocking way with the relevant position of the
European Parliament which in no less than three Resolutions has
admonished the Commission, unfortunately in vain , to respect more
concretely the cultural diversity and the cultural and social functions
of collecting societies and not to overaccentuate the application of
antitrust law to them .
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If copyright law as a whole has a cultural mission to fulfill this is
certainly true also for its subsystems, in particular for collecting
societies. From that point of view, the copyright legislators, if they are
to take that cultural mission seriously, would have to take a positive
attitude vis-à-vis collecting societies, assisting them in the fulfillment
of their tasks, rather than a negative one, holding them down and
weakening them, without, of course, neglecting the necessary control
over the societies.
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The cultural functions of
collecting societies themselves
Vienna Music Business Research Days
All that is important and primordial, but still is only half of the truth. If
we want to know the full cultural mission of collecting societies we
have to take the territorial aspect into consideration. They are not
active so to say in a neutral zone which could be small or big, national,
regional-European or international, but they have a primordial
responsibility for the creative people of “their” country or of ”their”
linguistic culture.
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The Proposal of the EU
Commission for a Directive on
Collecting Societies and Cultural
Diversity – a pure lip service?
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Here one can have the impression of a great imbalance: all strict
obligations are imposed on the collecting societies whilst the
obligations of the rightholders and especially of the users are
regulated only in a very superficial way.
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Last, but really not least, the provisions which directly aim at the
cultural aspect are once again very strict and restrictive; they concern
“the deductions made for any purpose other than management fees,
including those that may be required by national law for the provision
of any social, cultural or educational services in the period
concerned”. Already the expression “that may be required by national
law” demonstrates a “psychological reserve” signifying that the
Commission makes a big concession to the national laws here, without
being really convinced of the value of these deductions and, even
less, of the necessity to – horribile dictu - prescribe them in the
European framework. Nonetheless, those deductions, where they
exist, are a characteristic element of the cultural functions of collecting
societies, at least on the European continent.
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The frustration of a practicable
solution
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The biggest paradox in our context is that quite a practical solution for
online use of musical works had already been found by the collecting
societies themselves in form of the Santiago Agreement (concerning
the right of public communication) and the Barcelona Agreement
(concerning the mechanical reproduction right) .
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Conclusion
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So many voices have been raised against the Proposal for a Directive
on Collecting Societies of July 11, 2012 . It is high time for the
Commission to reflect again and to be aware that her position has
become untenable, in particular also because, in a politically and
democratically intolerable manner, she acts in total neglect of the will
of the European Parliament. Consequently, we hope that that proposal
will never be accepted in its actual version by the legislators, the
Council of the European Union and the European Parliament. From the
point of view of the protection of cultural diversity it represents a big
missed opportunity.
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Thank you for your attention !!!
Vienna Music Business Research Days
Forth “Vienna Music Business Research Days”
University of Music and Performing Arts Vienna, 20-21 June 2013
The Proposal of the EU Commission
for a Directive on Collecting Societies
and Cultural Diversity – a Missed
Opportunity
Prof. Dr. Adolf Dietz
Department of Copyright Law
Max Planck Institute for
Intellectual Property and Information Law
Munich
Vienna Music Business Research Days