copyrights and related rights in the performing arts sector: quo vadis? evi werkers legal researcher...

Copyrights and related Copyrights and related rights in the performing arts rights in the performing arts

sector: Quo vadis? sector: Quo vadis?

Evi WerkersEvi WerkersLegal Researcher ICRI – K.U.LeuvenLegal Researcher ICRI – K.U.Leuven

36th Pearle* Conference36th Pearle* Conference28 November 2008, Paris28 November 2008, Paris

Structure of the presentationStructure of the presentation

1.1. IntroductionIntroduction

2.2. LegislationLegislation

3.3. Extended copyright protectionExtended copyright protection

4.4. EU Policy : the IP PackageEU Policy : the IP Package

5.5. Other recent developmentsOther recent developments

6.6. ConclusionConclusion

IntroductionIntroduction

DigitizationDigitization Convergence ofConvergence of

technologies (networks, services, carriers) technologies (networks, services, carriers) media (print, audiovisual, multimedia) media (print, audiovisual, multimedia) professional and semi-professional input professional and semi-professional input

(bloggers)(bloggers) Low financial and technological requirements Low financial and technological requirements Production and dissemination of large amounts Production and dissemination of large amounts

of content (sound, images, text) of content (sound, images, text)

Structure PresentationStructure Presentation







Legislation on different levelsLegislation on different levels

International TreatiesInternational Treaties European LegislationEuropean Legislation Member States’ legislationMember States’ legislation

International treatiesInternational treaties

Berne Convention 1886 (1971)Berne Convention 1886 (1971) Rome Convention 1961Rome Convention 1961 GATT TRIPS 1994 (WTO)GATT TRIPS 1994 (WTO) WIPO Performers and Phonograms Treaty, WIPO Performers and Phonograms Treaty,

1996 (WPPT)1996 (WPPT) WIPO Copyright Treaty,1996 (WCT)WIPO Copyright Treaty,1996 (WCT)

European frameworkEuropean framework

Computer Program Directive 91/250Computer Program Directive 91/250 Rental and Lending and Related Rights Directive Rental and Lending and Related Rights Directive

92/100 repealed by Directive 2006/11592/100 repealed by Directive 2006/115 Satellite and Cable Directive 93/83Satellite and Cable Directive 93/83 Term Directive 93/98 – repealed by Directive Term Directive 93/98 – repealed by Directive

2006/1162006/116 Database Directive 96/9Database Directive 96/9 Information Society Directive 2001/29Information Society Directive 2001/29 Resale Directive 2001/84Resale Directive 2001/84 Enforcement Directive 2004/48Enforcement Directive 2004/48

Extended copyright protectionExtended copyright protection

Expanded copyright protection in materiaeExpanded copyright protection in materiae Broadened exploitation rights (including Broadened exploitation rights (including

legal protection of RMI and DRM)legal protection of RMI and DRM) Closed list of exceptions Closed list of exceptions The IP Package, launched by the ECThe IP Package, launched by the EC

Green PaperGreen Paper CISAC DecisionCISAC Decision Proposal EC for the amending of the Directive Proposal EC for the amending of the Directive

on copyright term from 50 to 95 yearson copyright term from 50 to 95 years

Extended exploitation rightsExtended exploitation rights

Exploitation rightsExploitation rights Reproduction Reproduction

Reproduction sensu strico Modification Distribution Rental Lending

Public Public CommunicationCommunication

Performance (live, radio/tv Making available i.e.

via internet (podcast, webcast, vod, stream)

Moral rightsMoral rights (Divulgation)(Divulgation) PaternityPaternity IntegrityIntegrity

++Protection RMIProtection RMI

Protection DRMProtection DRM

Attributed to…Attributed to…

Rightholders:Rightholders: AuthorsAuthors PerformersPerformers Film producersFilm producers Producers of phonograms (record companies)Producers of phonograms (record companies)

Not attributed to producers of performing artsNot attributed to producers of performing arts

Implications for performing arts sectorImplications for performing arts sector

Authorization for usage of elements as element of the Authorization for usage of elements as element of the performance from authors:performance from authors:

Text, libretto (writer, publisher)Text, libretto (writer, publisher) Choreography (choreographer)Choreography (choreographer) Photographs (photographer)Photographs (photographer) Music recording (producer of phonograms)Music recording (producer of phonograms) Audiovisual elements (film producer, music composer)Audiovisual elements (film producer, music composer)

Performers’ neighbouring rights (actors, dancers, Performers’ neighbouring rights (actors, dancers, musicians, singers, etc.) musicians, singers, etc.)

No neighbouring right or presumption in the advantage No neighbouring right or presumption in the advantage of producers of performing arts: transfer of rights via of producers of performing arts: transfer of rights via licensing agreements licensing agreements

Exceptions (art. 5.3. Infosoc-Directive)Exceptions (art. 5.3. Infosoc-Directive)

Quotations for purposes such as criticism or review (d)Quotations for purposes such as criticism or review (d) Incidental Incidental inclusion of a work or other subject-matter in inclusion of a work or other subject-matter in

other material other material (i)(i) Use for the purpose of advertising the public exhibition or Use for the purpose of advertising the public exhibition or

sale of artistic works, to the extent necessary to promote sale of artistic works, to the extent necessary to promote the event, excluding any other commercial use (j)the event, excluding any other commercial use (j)

Parody, caricature, pastiche (k)Parody, caricature, pastiche (k)Etc.Etc.

→ → Non-mandatory list (with exception of 1) + exhaustive Non-mandatory list (with exception of 1) + exhaustive →→ Subject to three steps test (protest Max Planck Institute)Subject to three steps test (protest Max Planck Institute)




3.3. Extended copyright protection and Extended copyright protection and implications for performaning arts sectorimplications for performaning arts sector




The IP PackageThe IP Package

A.A. Green Paper Copyright in the Knowledge Green Paper Copyright in the Knowledge Economy, COM (2008) 466/3Economy, COM (2008) 466/3

B.B. Proposal EC for the amending of the Proposal EC for the amending of the Directive on copyright term (Directive on copyright term (suprasupra) from ) from 50 to 95 years50 to 95 years

C.C. CISAC DecisionCISAC Decision

A. Green PaperA. Green Paper

AimAim To foster free movement of knowledge and To foster free movement of knowledge and

innovation (fifth freedom)innovation (fifth freedom) To restore balance reward past creation / To restore balance reward past creation /

future dissemination knowledge productsfuture dissemination knowledge products Questions regarding adequacy of:Questions regarding adequacy of:

Exceptions in generalExceptions in general Specific exceptions: libraries & archives, Specific exceptions: libraries & archives,

disabled persons, user-created contentdisabled persons, user-created content

B. Proposal extension copyright termB. Proposal extension copyright term

Proposal COM (2008)464/3: six Proposal COM (2008)464/3: six operational objectives:operational objectives:

1.1. Gradually align authors’ and performers’ Gradually align authors’ and performers’ protectionprotection

2.2. Incrementally increase renumeration performersIncrementally increase renumeration performers

3.3. Diminish discrepancies in protection EU-USDiminish discrepancies in protection EU-US

4.4. Ensure availability music at reasonable pricesEnsure availability music at reasonable prices

5.5. Encourage digitisation of back catalogueEncourage digitisation of back catalogue

B. Proposal extension copyright termB. Proposal extension copyright term

Approach adopted in EC proposal:Approach adopted in EC proposal: Extension from 50 to 95 yearsExtension from 50 to 95 years Harmonise calculaton co-written musical Harmonise calculaton co-written musical

compositionscompositions ““Use it or lose it” clauses in contracts between Use it or lose it” clauses in contracts between

performers and record companiesperformers and record companies Fund set up by record companies to help Fund set up by record companies to help

session musicianssession musicians

C. CISAC DecisionC. CISAC Decision

Addressees: AEPI, AKKA-LAA, AKM, ARTISJUS, Addressees: AEPI, AKKA-LAA, AKM, ARTISJUS, BUMA, EAU, GEMA, IMRO, KODA, LATGA-A, PRS, BUMA, EAU, GEMA, IMRO, KODA, LATGA-A, PRS, OSA, SABAM, SACEM, SAZAS, SGAE, SIAE, SOZA, OSA, SABAM, SACEM, SAZAS, SGAE, SIAE, SOZA, SPA, STEF, STIM, TEOSTO, TONO, ZAIKSSPA, STEF, STIM, TEOSTO, TONO, ZAIKS

Agreements between collecting societies should not Agreements between collecting societies should not create artificial barriers to the provision of music across create artificial barriers to the provision of music across bordersborders

Therefore the EC prohibits further use of:Therefore the EC prohibits further use of: ““Membership clauses”: hindering free choice by author of Membership clauses”: hindering free choice by author of

collecting society providing best quality service collecting society providing best quality service ““Territorial Exclusivity clauses” : obstructing cross-border Territorial Exclusivity clauses” : obstructing cross-border

licensing of music broadcasts over internet, cable, satellite licensing of music broadcasts over internet, cable, satellite


Goals EC:Goals EC: Rightholders should be free to choose their Rightholders should be free to choose their

rights managers providing best quality service rights managers providing best quality service and the scope of the rights managed and the scope of the rights managed

Encourage collecting societies to be more Encourage collecting societies to be more efficient and provide multi-territorial (pan-efficient and provide multi-territorial (pan-European) licensesEuropean) licenses

Providing more choice to consumers and Providing more choice to consumers and giving authors more potential revenuegiving authors more potential revenue


Reactions Copyright Societes:Reactions Copyright Societes: Threat cultural diversityThreat cultural diversity Threat current system of licensing music Threat current system of licensing music

repertoire as a single package repertoire as a single package Costly, inefficient and fragmented licensing Costly, inefficient and fragmented licensing

system system Disappearance small author’s rights societiesDisappearance small author’s rights societies Competition is not the (sole) solution Competition is not the (sole) solution

Other recent developmentsOther recent developments

Communication European Commission on Communication European Commission on Creative Content Online in the Single MarketCreative Content Online in the Single Market

1.1. Increase availability of creative content Increase availability of creative content 2.2. Multi-territory licensing for creative content Multi-territory licensing for creative content 3.3. Interoperability and transparency of Digital Rights Interoperability and transparency of Digital Rights

Management systems (DRMs) Management systems (DRMs) 4.4. Legal offers and piracy Legal offers and piracy

The internet of Things / web 3.0. Strategy:The internet of Things / web 3.0. Strategy:1.1. Self-/co-regulatory agreementsSelf-/co-regulatory agreements2.2. promote digital business modelspromote digital business models3.3. enforce legal certainty rights and obligationsenforce legal certainty rights and obligations4.4. promotion legal offers onlinepromotion legal offers online5.5. reinforcement consumers’ rightsreinforcement consumers’ rights6.6. fight against online piracyfight against online piracy




3.3. Extended copyright protection Extended copyright protection




ConclusionConclusion

Extended copyright protection in terms of duration, Extended copyright protection in terms of duration, exploitation rights, limitation of exceptions in favour of exploitation rights, limitation of exceptions in favour of users by means of the three-step-test (abuse three step users by means of the three-step-test (abuse three step test, EC proposal)test, EC proposal)

↨↨

Exceptions should be made more technology neutral and Exceptions should be made more technology neutral and mandatory and / or flexible, multi-territorial licensing mandatory and / or flexible, multi-territorial licensing systems should be stimulated to improve systems should be stimulated to improve

dissemination of knowledge and information dissemination of knowledge and information cultural creativity / diversitycultural creativity / diversity more creative content online (and renumeration)more creative content online (and renumeration)(Green Paper, CISAC Decision CCO, Web 3.0.) (Green Paper, CISAC Decision CCO, Web 3.0.)

Thank you for you attention. Questions?Thank you for you attention. Questions?

Evi WerkersEvi Werkers

[email protected]@law.kuleuven.be

https://https://projects.ibbt.beprojects.ibbt.be/cupid//cupid/

http://http://www.fleetproject.be/nl/homewww.fleetproject.be/nl/home//

copyrights and related rights in the performing arts sector: quo vadis? evi werkers legal researcher...

Documents

arts slide

term directive

conclusion slide

related rights directive

text slide

resale directive

enforcement directive

database directive