Presentation is loading. Please wait.

Presentation is loading. Please wait.

1 Actual conflicts of CMOs Spanish and European noveltys Les conflits actuels dans la société de gestion collective Nouveautés de l’Espagne et de l’UE.

Similar presentations


Presentation on theme: "1 Actual conflicts of CMOs Spanish and European noveltys Les conflits actuels dans la société de gestion collective Nouveautés de l’Espagne et de l’UE."— Presentation transcript:

1 1 Actual conflicts of CMOs Spanish and European noveltys Les conflits actuels dans la société de gestion collective Nouveautés de l’Espagne et de l’UE Vanessa Jiménez Serranía PhD candidate University of Salamanca

2 2 PLAN I. Spanish system of CMO’s 1. Structural and Juridical Overview 2. Antitrust law and Spanish CMOs: focus on general tariffs II. (Provisional) proposal for a Directive (11/07/2012) 1. Objectives and legal basis 2. Summary repport of the new regulation I. Le système espagnol de sociétés de gestion 1. Vision structurelle et juridique generale 2. Droit de la concurrence et SPRD espagnoles: les tarifs généraux II. Proposition (provisoire) de la Directive (11/07/2012) 1. Objectifs et base légale 2. Rapport de synthèse de la nouvelle régulation

3 3 I Spanish system of CMO’s Le système espagnol des sociétés de gestion

4 4 1.Structural and Juridical Overview / Vision structurelle et juridique générale 1.Structural and Juridical Overview / Vision structurelle et juridique générale Legislative Royal Decree 1/1996 of 12 April 1996, which approved the Consolidated Text of the Intellectual Property Act (LPI) Decret Royal 1/1996 12 Avril 1996, qui approuve le Texte consolidé de la Loi de Propriété Intellectuelle (LPI)

5 5

6 6

7 7 System dimension/Dimension du système Source: AEVAL 2009

8 8 Spanish CMO’s Profile Organised on a not-for-profit basis Organised on a not-for-profit basis Not –for-profil basis Not –for-profil basis Be authorised by the Ministry of Culture to operate -159.1 LPI Be authorised by the Ministry of Culture to operate -159.1 LPI Their scope is setting out in its bylaws, which must meet certain requirements (art. 151 LPI) and be submitted to the Ministry of Culture as part of the authorisation process. Their scope is setting out in its bylaws, which must meet certain requirements (art. 151 LPI) and be submitted to the Ministry of Culture as part of the authorisation process. Main objective of collecting societies is “the management of exploitation rights or other economic rights, for the account and in the interest of various authors or other holders of intellectual property rights” (article 147 of the LPI). Main objective of collecting societies is “the management of exploitation rights or other economic rights, for the account and in the interest of various authors or other holders of intellectual property rights” (article 147 of the LPI).

9 9 Core functions performed by a collecting society Grant licence (fees) for use of the works and other subject matter managed; Grant licence (fees) for use of the works and other subject matter managed; Establish general fees; Establish general fees; Collect the payments deriving from exploitation of works and other protected subject matter; Collect the payments deriving from exploitation of works and other protected subject matter; Monitor the use made of the works and other protected materials; detect possible infringements and prosecute them; Monitor the use made of the works and other protected materials; detect possible infringements and prosecute them; Distribute the payments collected amongst the rightholders it represents, after discounting the administrative cost. Distribute the payments collected amongst the rightholders it represents, after discounting the administrative cost.+ Obligation imposes by LPI: Function to provide assistance and support to the rightholders Obligation imposes by LPI: Function to provide assistance and support to the rightholders

10 10 2. Antitrust law and Spanish CMOs: focus on general tariffs / Droit de la concurrence et SPRD espagnoles : les tarifs généraux

11 11 Causes of the dominant position Economies of scale Blanket licenses Reciprocal agreements Legal entry barriers Be organised on a not for profit basis Comply with a number of requirements regarding its bylaws Requirement of prior authorisation from the Ministry of Culture Mandatory collective management Strategic entry barriers Clauses in the reciprocal representation agreements with collecting societies from other countries Contractual practices in the contracts with rightholders Duration contracts are renewable indefinitely for their initial term Scope (Music publishers vs SGAE “Daft Punk à l’espagnole) Exclusivity Lack of transparency on repertoires Fees for availability that do not take actual use into account

12 12 General fees conflicts DEFINITION: General fees are of a subsidiary nature, that is, they are applied in default of an agreement between the collecting societies and users. They are also used to determine the amount payable by a user into an escrow or judicial deposit in order to have an interim authorisation until the collecting society and user reach an agreement

13 13 Systemic failures Absence of ex-ante control of tariffs Collecting societies “are obliged to notifythe Ministry of Culture of the appointments and removals of their directors and representatives, the general fees and modifications thereof, the general contracts made with associations of users and the arrangements made with foreign organisations in their same class, as well as the documents mentioned in article 156 of this Act”. Collecting societies “are obliged to notify the Ministry of Culture of the appointments and removals of their directors and representatives, the general fees and modifications thereof, the general contracts made with associations of users and the arrangements made with foreign organisations in their same class, as well as the documents mentioned in article 156 of this Act”. Ineffectiveness of the negotiation mechanisms “until the parties reach an agreement, the relevant authorisation shall be understood to be granted if the applicant pays in escrow or in a judicial deposit the royalty demanded by the collecting society according to the general fee schedule” (article 157.2 of the LPI). Absence of effective ex post control Intellectual Property Commission (Comisión de Propiedad Intellectual — IPC), the dispute resolution mechanism between collecting societies and certain classes of users envisaged by the LPI, had not proven to be an effective instrument for solving pricing conflicts.

14 14 Endemic failures Unfair fees Relation with the economic value of the use of the repertoires Relation to actual use Appropriateness to the repertoire CNC resolution of 23 July 2009 in case 651/08, AIE/T5, AIE was fined for charging unfair fees to Telecinco. Supreme Court Judgement of 18 February 2009 (AIE/T5) and 7 april 2009 (SOGECABLE) SCJ of 15 septembre 2010 (Via Digital) SCJ of 13 decembre 2010 (Canal Satelite Digital) CNC resolution of 07/06/2012 in case S/02002/10, SGAE vs Complejo Hotelero San Cucao Discriminatory pricing CNC resolution of 9 December 2008 in case 636/07, Phonograms, fined AGEDI and AIE for discriminating against SOGECABLE in comparison with TVE and ONO. CNC resolution 19 December 2011 Aisge vs Spanish Auditorium Federation (FCE) SCJ of 22 Decembre 2008 SGAE vs. Vale music CNC resolution of 23 July 2009 in case 651/08, AIE/T5, the CNC fined AIE for having applied discriminatory fees to Telecinco.

15 15SOLUTIONSystemical New regulation of the Intellectual Property Commission (Comisión de Propiedad Intellectual — IPC) Alteration of 158 LPI Royal Decree 1889/2011 30 of december New roles: New roles: Mediation Mediation Arbitration Arbitration Special procedure for stablishing an substitute amont of general fees (case of disgreement between commercial users and CMOs. Special procedure for stablishing an substitute amont of general fees (case of disgreement between commercial users and CMOs. Appel civil jurisdiction. Appel civil jurisdiction. Endemical SCJ 23 of mars 2011 1 °) It’s not correct to calculate lost profts (lucrum cesans) using general fees provided by collecting societies to the competent authority, only because they have not been objected This implies a very slight degree of protection. 2 º) The existence of a previous negotiation process does not justify the application of the general fees, regardless their fairness. So the failure of previous conversations is not a sufficient reason for CMOs to impose general fees on the other side. 3 °) Profit criteria has to be based on the effective use of the repertoire. 4 °) The agreements carry out by the CMO with other persons or entities to authorize the use of their repertoire also had to be regarded (equity= non injustified disparity).

16 16 (Provisional) proposal for a Directive Proposition (provisoire) de la Directive

17 17 1.Objectives and legal basis/ Objectifs et base légale

18 18 Objectives / Objectifs Appropriate legal framework for the collective management of rights that are administered by collecting societies Appropriate legal framework for the collective management of rights that are administered by collecting societies Better governance Better governance Greater transparency of all collecting societies Greater transparency of all collecting societies Multi-territorial licensing of the rights of authors in their musical works by collecting societies representing authors Multi-territorial licensing of the rights of authors in their musical works by collecting societies representing authors Digital Agenda for Europe and the Europe 2020 Strategy aiming for smart, sustainable and inclusive growth Digital Agenda for Europe and the Europe 2020 Strategy aiming for smart, sustainable and inclusive growth Cadre juridique approprié pour la gestion collective des droits qui sont administrés par des sociétés de gestion collective Cadre juridique approprié pour la gestion collective des droits qui sont administrés par des sociétés de gestion collective Meilleure gouvernance Meilleure gouvernance Plus grande transparence dans toutes les sociétés de gestion collective Plus grande transparence dans toutes les sociétés de gestion collective Concession de licences multiterritoriales sur les droits des auteurs relatifs à leurs œuvres musicales par des sociétés de gestion collective qui les représentent Concession de licences multiterritoriales sur les droits des auteurs relatifs à leurs œuvres musicales par des sociétés de gestion collective qui les représentent Cadre de la stratégie numérique pour l’Europ et de la stratégie Europe 2020 pour une croissance intelligente, durable et inclusive Cadre de la stratégie numérique pour l’Europ et de la stratégie Europe 2020 pour une croissance intelligente, durable et inclusive

19 19 Legal basis/Base légale Articles 50(2)(g), 53 and 62 TFEU as facilitating the free provision of services. Articles 50(2)(g), 53 and 62 TFEU as facilitating the free provision of services. Principle of subsidiarity (Article 5(3) TFEU) Principle of subsidiarity (Article 5(3) TFEU) Principle of proportionality (Article 5(4) TEU) Principle of proportionality (Article 5(4) TEU) A directive: This is in conformity with the requirements of Articles 50(2)(g), 53 and 62 TFEU. A directive: This is in conformity with the requirements of Articles 50(2)(g), 53 and 62 TFEU. Article 50, paragraphe 2, point g), et les articles 53 et 62 du TFUE puisqu’elle facilite la libre prestation de services. Article 50, paragraphe 2, point g), et les articles 53 et 62 du TFUE puisqu’elle facilite la libre prestation de services. Article 5, paragraphe 3, du TFUE, (principe de subsidiarité) puisque le cadre juridique à la fois au niveau national et au niveau de l’UE s’est révélé insuffisant Article 5, paragraphe 3, du TFUE, (principe de subsidiarité) puisque le cadre juridique à la fois au niveau national et au niveau de l’UE s’est révélé insuffisant Article 5, paragraphe 4, du TFUE, (principe de proportionnalité) Article 5, paragraphe 4, du TFUE, (principe de proportionnalité) Une directive: Cette procédure est conforme aux exigences de l’article 50, paragraphe 2, point g), et des articles 53 et 62 du TFUE Une directive: Cette procédure est conforme aux exigences de l’article 50, paragraphe 2, point g), et des articles 53 et 62 du TFUE

20 20 2. Summary repport of the new regulation/ European license passeport Rapport de synthèse de la nouvelle régulation Passeport européen de licence

21 21 T.1 GENERAL PROVISIONS Article 1 Subject matter Article 1 Subject matter This Directive lays down requirements necessary to ensure the proper functioning of the management of copyright and related rights by collecting societies. This Directive lays down requirements necessary to ensure the proper functioning of the management of copyright and related rights by collecting societies. It also lays down requirements for multi-territorial licensing by collecting societies of authors' rights in musical works for online use. It also lays down requirements for multi-territorial licensing by collecting societies of authors' rights in musical works for online use. Article 2 Scope Article 2 Scope Titles I, II and IV with the exception of Articles 36 and 40 shall apply to all collecting societies established in the Union. Titles I, II and IV with the exception of Articles 36 and 40 shall apply to all collecting societies established in the Union. Title III and Articles 36 and 40 of Title IV shall only apply to those collecting societies managing authors' rights in musical works for online use on a multi-territorial basis. Title III and Articles 36 and 40 of Title IV shall only apply to those collecting societies managing authors' rights in musical works for online use on a multi-territorial basis.

22 22 T.2 COLLECTING SOCIETIES Do not impose on rightholders whose rights they manage any obligations which are not objectively necessary for the protection of the rights and interests Do not impose on rightholders whose rights they manage any obligations which are not objectively necessary for the protection of the rights and interests Rightholders: Rightholders: Right to authorise a collecting society of their choice (absolute freedom) Right to authorise a collecting society of their choice (absolute freedom) Right to terminate the authorisation or to withdraw States of their choice (serving reasonable notice not exceeding six months) Right to terminate the authorisation or to withdraw States of their choice (serving reasonable notice not exceeding six months) express consent specifically for each right or category of rights or type of works express consent specifically for each right or category of rights or type of works Membership rules: Membership rules: Collecting societies shall accept rightholders as members if they fulfil the membership requirements. They may only refuse a request for membership on the basis of objective criteria. These criteria shall be included in the statute or the membership terms of the collecting society and shall be made publicly available General meeting Supervisory function responsible for continuously monitoring the activities and the performance of the duties of the persons entrusted with managerial responsibilities (lim.min)

23 23 T.2 COLLECTING SOCIETIES Management of rights revenue Management of rights revenue Diligent in the collection and the management of rights Diligent in the collection and the management of rights Manage and keep separate the rights revenue and any income derived from its investment from its own assets, the income derived from its management services or the income derived from any other activities Manage and keep separate the rights revenue and any income derived from its investment from its own assets, the income derived from its management services or the income derived from any other activities Rules for investment (best invested in the best interests of members) Rules for investment (best invested in the best interests of members) Provide social, cultural or educational services funded through deductions from rights revenue Provide social, cultural or educational services funded through deductions from rights revenue Distribution and payments no later than 12 months from the end of the financial year/ equal treatment of all categories of rightholders/5 years – social services Distribution and payments no later than 12 months from the end of the financial year/ equal treatment of all categories of rightholders/5 years – social services Make available to the members of the collecting society as well as to the public a list of works and other subject matter for which one or more rightholders have not been identified or located. Make available to the members of the collecting society as well as to the public a list of works and other subject matter for which one or more rightholders have not been identified or located. Management of rights on behalf of other collecting societies Management of rights on behalf of other collecting societies Not discriminate/Not apply deductions, other than management fees Relations with users Relations with users conduct negotiations for the licensing of rights in good faith Information Licensing terms shall be based on objective criteria Tariffs =economic value of the rights in trade Transparency and reporting Transparency and reporting Information provided (+ to -): Duty: rightholders on the management of their rights other collecting societies on the management of rights under representation agreements Request Public Annual transparency report Annual transparency report

24 24 T.3 MULTI-TERRITORIAL LICENSING OF ONLINE RIGHTS IN MUSICAL WORKS BY COLLECTING SOCIETIES Member States shall ensure that a collecting society which grants multi- territorial licences for online rights in musical works has sufficient capacity to process electronically, in an efficient and transparent manner, the data needed for the administration of such licences, including for identifying the repertoire and monitoring its use, invoicing users, collecting rights revenue and distributing amounts due to rightholders. Member States shall ensure that a collecting society which grants multi- territorial licences for online rights in musical works has sufficient capacity to process electronically, in an efficient and transparent manner, the data needed for the administration of such licences, including for identifying the repertoire and monitoring its use, invoicing users, collecting rights revenue and distributing amounts due to rightholders. Collecting society: Collecting society: Provide up-to-date information Provide up-to-date information Accuracy of multi-territorial repertoire information Accuracy of multi-territorial repertoire information Accurate and timely reporting and invoicing Accurate and timely reporting and invoicing Accurate and timely payment to rightholders Accurate and timely payment to rightholders Possibility of outsource services which relate to the multi-territorial licences it grants. Such outsourcing shall not affect the liability Possibility of outsource services which relate to the multi-territorial licences it grants. Such outsourcing shall not affect the liability Agreements between collecting societies for multi-territorial licensing Agreements between collecting societies for multi-territorial licensing Non-exclusive nature. The mandated collecting society shall manage those online rights on nondiscriminatory terms Mandating collecting society information to its members of the terms of the agreement Mandated collecting society shall inform the mandating society of the key terms on which its online rights are to be licensed Obligation to represent another collecting society for multi-territorial licensing Obligation to represent another collecting society for multi-territorial licensing Collecting society which does not grant or offer to grant multi- territorial licences can request another collecting society Requested collecting society shall accept such a request

25 25 T.3 MULTI-TERRITORIAL LICENSING OF ONLINE RIGHTS IN MUSICAL WORKS BY COLLECTING SOCIETIES Art.30 !!!!!: Collecting society does not grant or offer to grant multi-territorial licences or does not allow another collecting society to represent Collecting society does not grant or offer to grant multi-territorial licences or does not allow another collecting society to represent Rightholders Rightholders grant multi-territorial licences in their online rights in musical works themselves or grant multi-territorial licences in their online rights in musical works themselves or through any collecting society complying with the provisions of this Title or any other party they authorise through any collecting society complying with the provisions of this Title or any other party they authorise The first collecting society shall continue to grant or offer to grant territorial licences unless the rightholders terminate their authorisation to manage them The first collecting society shall continue to grant or offer to grant territorial licences unless the rightholders terminate their authorisation to manage them

26 26 T.3 Article 32 Licensing terms in online services Article 32 Licensing terms in online services A collecting society providing multi-territorial licences for online rights in musical works shall not be required to use as a precedent for other types of services licensing terms agreed with an online music service provider, when the online music service provider is providing a new type of service which has been available to the public for less than three years. A collecting society providing multi-territorial licences for online rights in musical works shall not be required to use as a precedent for other types of services licensing terms agreed with an online music service provider, when the online music service provider is providing a new type of service which has been available to the public for less than three years. Article 33 Derogation for online music rights required for radio and television programmes Article 33 Derogation for online music rights required for radio and television programmes The requirements under this Title shall not apply to collecting societies which grant, on the basis of the voluntary aggregation of the required rights, in compliance with the competition rules under Articles 101 and 102 TFEU, a multi-territorial licence for the online rights in musical works required by a broadcaster to communicate or make available to the public its radio or television programmes simultaneously with or after their initial broadcast as well as any online material produced by the broadcaster which is ancillary to the initial broadcast of its radio or television programme. The requirements under this Title shall not apply to collecting societies which grant, on the basis of the voluntary aggregation of the required rights, in compliance with the competition rules under Articles 101 and 102 TFEU, a multi-territorial licence for the online rights in musical works required by a broadcaster to communicate or make available to the public its radio or television programmes simultaneously with or after their initial broadcast as well as any online material produced by the broadcaster which is ancillary to the initial broadcast of its radio or television programme.

27 27 T.4 ENFORCEMENT MEASURES Member States shall ensure that collecting societies make available to their members and rightholders effective and timely procedures Member States shall ensure that collecting societies make available to their members and rightholders effective and timely procedures Member States shall ensure that disputes between collecting societies and users submitted to a court, and if appropriate, to an independent and impartial dispute resolution body (this last option shall not prevent the parties from asserting and defending their rights by bringing an action before a court) Member States shall ensure that disputes between collecting societies and users submitted to a court, and if appropriate, to an independent and impartial dispute resolution body (this last option shall not prevent the parties from asserting and defending their rights by bringing an action before a court) Administrative sanctions and measures where the provisions of the national provisions adopted in the implementation of this Directive Administrative sanctions and measures where the provisions of the national provisions adopted in the implementation of this Directive The sanctions and measures shall be effective, proportionate and dissuasive The sanctions and measures shall be effective, proportionate and dissuasive The Commission shall foster regular exchange of information between the competent authorities of the Member States and between those authorities and the Commission on the situation and development of multi-territorial licensing The Commission shall foster regular exchange of information between the competent authorities of the Member States and between those authorities and the Commission on the situation and development of multi-territorial licensing Member States shall ensure that, at the latest, [30 months after the entry into force of this Directive], their competent authorities provide the Commission with a report on the situation and development of multi-territorial licensing in their territory. Member States shall ensure that, at the latest, [30 months after the entry into force of this Directive], their competent authorities provide the Commission with a report on the situation and development of multi-territorial licensing in their territory. The Commission shall conduct regular consultations The Commission shall conduct regular consultations


Download ppt "1 Actual conflicts of CMOs Spanish and European noveltys Les conflits actuels dans la société de gestion collective Nouveautés de l’Espagne et de l’UE."

Similar presentations


Ads by Google