RadioandMusic
| 05 Apr 2020
Current status of global Copyright and Regulatory issues

Universal Music Publishing India managing director Achille Forler outlines the road-map of global copyrights industry to Radioandmusic.com.

Copyright law plays a fundamental role in regulating the way media businesses operate. Anyone whose business depends on copyrights should know what is happening globally, more particularly at WIPO and in the European Union, not only because they are harbingers of things to come but also because Indian diplomats have stepped up their presence and influence in the global fora, particularly at WIPO. The unanimous adoption of the Copyright Amendments by both Houses in May with the inclusion of the provisions of the BTAP even before they were adopted in Beijing has placed the country under a never-before favorable global spotlight. With the rapid expansion of the media businesses across the globe and with more royalties flowing back from the international markets, it is imperative for the media industries to keep a watch on global developments and partner closely with the Government, not to stem the waves but to surf on them.

The Beijing Treaty on Audiovisual Performances (BTAP)

The Treaty on Audiovisual Performances was adopted at the Diplomatic Conference on the Protection of Audiovisual Performance in Beijing on 26 June 2012. The BTAP will strengthen the economic rights of film actors and other performers and could provide extra income from their work. It will potentially enable performers to share proceeds with producers for revenues generated internationally by audiovisual productions. It will also grant performers moral rights to prevent lack of attribution or distortion of their performances.

Importantly, the new treaty will strengthen the precarious position of performers in the audiovisual industry by providing a clearer international legal framework for their protection. For the first time it will provide performers with protection in the digital environment. The treaty will also contribute to safeguarding the rights of performers against the unauthorized use of their performances in audiovisual media, such as television, film and video.

Next Steps

The new Treaty will enter into force after 30 contracting parties have ratified it. India was the first country to include the provisions of the BTAP in its Amended Copyright Act.

WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO)

Exceptions and limitations of copyright have been the focus of the discussions. International legal instrument to facilitate visually impaired (VIP) access to copyrighted works, protection for broadcasting organisations and exceptions and limitations for libraries and archives are being discussed and specific timelines have been given. An instrument on traditional knowledge and folklore is also being discussed.

Standing Committee on Copyright and Related Rights (SCCR)

At the 25th session of the WIPO Standing Committee on Copyright and Related Rights (SCRR), which took place from 19th to 23rd November, delegates moved forward on the subjects of an international legal instrument to facilitate visually impaired (VIP) access to copyrighted works, protection for broadcasting organisations and exceptions and limitations for libraries and archives. An updated text on VIPs’ access to copyrighted works has been adopted as a working document which the WIPO General Assembly evaluated on 17-18 December and convened a diplomatic conference for treaty negotiations in 2013 in Morocco. The EU has indicated that it would be open to a treaty as long as the scope is narrowed to the needs of the visually impaired.

On broadcasting, it was agreed that a three-day inter-sessional meeting in the first half of 2013 would allow delegates to decide whether to convene a diplomatic conference in 2014.

The SCCR also agreed to continue working towards an international instrument on exceptions and limitations for libraries and archives, with the possibility of an inter-sessional meeting in the second half of 2013.

WIPO Agenda for 2013

1. Exceptions and limitations for libraries and archives – in second half of 2013

2. Exceptions and limitations for VIPs – Diplomatic conference for Treaty negotiations in 2013

3. Broadcasting Treaty – Three-day inter-sessional meeting in the first half of 2013 and decision to convene a diplomatic conference in 2014.

4. WIPO IGC on Genetic Resources, Traditional Knowledge and Folklore – next meeting 4-8 February 2013.

Global Repertoire Database (GRD) Current status

There is currently no database or data-resource that provides access to authoritative comprehensive multi-territory information about the ownership or control of the global repertoire of musical works and that is openly available to "stakeholders": songwriters, publishers, musical work Collective Rights Management (“CRMs”) organisations and users. In the context of emerging multi-territory licensing solutions for the new online services, an authoritative, multi territory, transparent, openly accessible, comprehensive rights ownership data is key to enabling these multi-territory licensing solutions to function effectively and efficiently. This is true whether such solutions offer an aggregated “worldwide repertoire” licence or a limited territory licence. A Global Repertoire Database - which will be the single, authoritative, complete and trusted source of musical works and their related rights holders - will maximise stakeholder trust in licensing solutions, deliver administrative efficiency through standard
isation and interoperability and provide for a level of accuracy, comprehensiveness and automation fit for the 21st Century.

The GRD Project started in 2010 is the most important development in the music industry in the last 50 years. It moved from the Scoping & Stakeholder Consultation phase to the Requirements and Design (R&D) phase in October 2012. Music publishers are represented in all three strands of the GRD – the Programme Board, Working Group and Design Authority -, working on issues related to data access, governance, and the service model/charging mechanism. Additional sub-committees have been established on Location and Finance (Business Plan) at which publishers are also represented.

There is an urgent need to educate the industry (telecoms operators, users, policy makers, etc) on the benefits of this development.

Next steps:

The current R&D phase is scheduled to end in May 2013, by which time the GRD will be established as a legal entity. Then will start the technology build, with a first release of the database due in 2015.

THE EUROPEAN UNION

In the field of copyright policy, the European Union's top priorities will be the Directive on Collective Rights Management, improving the framework for the development of new business models, facilitating access to legal content and streamlining enforcement practices. On cultural policy, the EU will ensure that a Creative Europe programme is put in place for 2014. They will also develop a new Work Plan for Culture. In the context of the Digital Agenda, the EU will focus on new models allowing for fair remuneration for creators and the maintenance of cultural diversity.

On the 5th December, the College of Commissioners met in Brussels to discuss whether the current EU copyright laws were in line with the technological developments. The European Commission agreed on a plan to update the EU framework on Copyright to make it fit for the digital economy. A Task Force made up by Commissioners Barnier (Internal Market), Kroes (Connect) and Vassiliou (Culture) is to deal with all the issues pertaining to IPRs.

The Commission’s agreed actions are the following:

A structured stakeholder dialogue will be launched at the start of 2013 to work to address six issues where rapid progress is needed: cross-border portability of content, user- generated content, data- and text-mining, private copy levies, access to audiovisual works and cultural heritage.

By December 2013 the Commission will take stock of the outcome of this dialogue which is intended to deliver effective market-led solutions to the issues identified, but does not prejudge the possible need for public policy action, including legislative reform.

Medium term issues for decision-making in 2014 for which the Commission will carry out relevant market studies, impact assessment and legal drafting work with a view to a decision in 2014 whether to table legislative reform proposals. The following four issues will be addressed together: mitigating the effects of territoriality in the Internal Market; agreeing appropriate levels of harmonisation, limitations and exceptions to copyright in the digital age; how best to reduce the fragmentation of the EU copyright market; and how to improve the legitimacy of enforcement in the context of wider copyright reform.

Proposal for a Directive on Collective Rights Management (DG Internal Market)

The Commission published the proposal for a Directive on 11th July. The proposal aims to promote greater transparency and better governance of collecting societies and to facilitate multi-territorial licensing of musical works for online use in the EU and EEA. This will make it easier for service providers to obtain the necessary licences for music to be distributed online across the EU and to ensure that revenue is correctly collected and fairly distributed to rightsholders, for the benefit of authors, composers and publishers, users and collecting societies themselves.

In the European Parliament, technical meetings have taken place on the Directive, and the relevant committees are set to adopt Draft Opinions on it in 2013.

Discussions in the Council of Ministers are still ongoing. Some Member States ( France, Sweden, Luxembourg and Poland) have sent a “reasoned opinion” to the European Parliament questioning competence of the European Commission to legislate in such a national matter as is the functioning of collecting societies. Other Member States have also discussed this issue at national level, without sending Opinions to the European Parliament. The fact that there are reasoned opinions from France, Luxembourg, Sweden and Poland being examined by the Parliament does not affect the legislative course of the proposal. The only impact is that when tabling amendments (no deadline yet), MEPs, Commission and Council will need to bear in mind that there are some Member States with serious concerns about the Directive.

Audiovisuals Works (DG Information Society/DG Internal Market)

On the 5th December the European Commission announced that work needed to be done in relation to Audiovisual Works. The Commission is concerned that the online audiovisual market has not developed as much as the music and print sectors have, and would like to facilitate online licensing of audiovisual works. The provisions on multi-territory licensing in the Directive on Collective Rights Management do not apply to the audiovisual sector, which is why the Commission feels this needs to be addressed specifically. The Commission already started working on this in May 2012 when it published a report on the application of the Audiovisual Media Services Directive of 2010. It has also been sending requests for information to Member States about the way they are implementing the Audiovisual Media Services (AVMS) Directive. The Commission will assess replies from Member States before proposing any initiative.

In parallel, the Culture and Education Committee of the European Parliament approved on 10th July an own-initiative report on the Online Distribution of Audiovisual Works. The report calls on the Commission to create greater legal certainty in this area for consumers, rightsholders and producers, and argues that cross-border licensing and access to audiovisual works online should be simplified and facilitated (through one-stop shops, etc); though it maintains that pan-European licensing must remain voluntary.

Next steps:

The Commission will update on guidance on televised advertising in 2013. The Parliament’s report is currently under discussion in the relevant committees, and is scheduled to be voted in plenary in April 2013. Legislative proposals are expected in 2014.

Net Neutrality (DG Information Society)

The European Commission launched in July a public consultation on net neutrality. This is a follow up to the consultation of April 2011, to which ICMP contributed, and to the Communication that followed.

This was a more concrete consultation than the last one. In particular, it is seeking stakeholders’ views on: Internet traffic management, including congestion management, managed services and privacy issues; transparency, in particular regarding the actual internet performance (speed and quality) and restrictions of internet access products; the possibility for consumers to switch operators and; internet interconnection issues between network operators.

International music publishers contributed to the public consultation calling for reasonable and transparent traffic management. We stated that for net neutrality to become a reality and to protect creators and their creative content, ISPs should be required to do their part in the enforcement of copyright laws through measures such as traffic management systems.

We support active cooperation between ISPs, rightsholders and public authorities. The principle of net neutrality must not be used to prevent ISPs from implementing network management techniques to protect against the theft of creative works and other unlawful activity online.

Next steps:

The Commission is currently assessing the replies from stakeholdersand is planning to publish guidelines by 2013. It is thought that the Commission may be looking into a binding regulation.

European Copyright Code (DG Internal Market)

The creation of a EU copyright code was announced in the IPR Strategy in May 2011. According to the Commission, the creation of this Code could encompass a complete codification of the current body of EU copyright directives in order to harmonise and consolidate the entitlements provided by copyright and related rights at EU level. The Commission will also examine the feasibility of creating an optional "unitary" copyright title.

Next steps:

The Commission will assess the whole EU copyright framework during 2013 and the European Copyright Code will be one of the things to assess. Legislative initiatives may come in 2014.

User Generated Content (DG Internal Market)

In light of the rapid development of social networking and social media sites the Commission feels that special attention should be given to possible approaches to deal with user-created or user- generated content (UGC). Work on this subject will be part of the Commission’s overall revision of the copyright framework. The Commission main focus on this subject is consumers, start-ups or SMEs using existing content to generate new content, when they often do not know whether they require permission or a license from the original creator or rightsholder, and how to do this. The EU Copyright Directive currently allows member states to maintain exceptions to copyri ght which would cover some varieties of UGC (e.g. parody), but there are wide variations on this among member states.

Next steps:

The Commission will assess the EU Copyright framework during 2013, and legislative initiatives may come in 2014.

EU Agenda for 2013

1. Proposal for a Directive on Collective Rights Management – Published in July, awaiting decision of EP and Council in 2013

2. Proposal for Directive on Orphan Works – Adopted, Member States have until autumn 2014 to implement into national law

3. E-Commerce – Legislative initiatives expected in 2013

4. Net Neutrality – Legislative initiatives expected in 2013

5. Cloud Computing – Strategy launched; legislative initiatives expected in 2013

6. Private copying levies – Recommendation expected in early 2013, legislative initiatives to follow

7. Revision on IPR Enforcement Directive – Commission consulting stakeholders

8. Customs legislation on enforcement of IPRs – Detailed Roadmap with actions in mid 2013