The European Commission’s Proposal for a directive on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online uses in the internal market is slowly progressing through the legislative process in Brussels. As part of this no less then five committees of the European Parliament (Legal Affairs, Culture and Education, Industry, Research and Energy, Internal Market and Consumer Protection and International Trade) are in the process of forming their opinion on the proposal.
At this stage the draft opinions written by the rapporteurs for the four non-leading committees have been published. These opinions take the form of amendments proposed to the text of the directive (sometimes these are accompanied by short justifications).
In our policy paper from January we identified two main issues with the proposed directive: The first one concerns the transparency of repertoire information that has to be provided by collective management organisations and the second concerns the relation between collective management and open content licenses. In our analysis the proposed directive fails to sufficiently address these two issues.
We are happy to see that among the four published opinions the draft opinion of the Committee on Culture and Education authored by Helga Trüpel shares the concerns voiced in our policy paper. In the introduction of the document she writes:
The Rapporteur would like to stress that rightholders should have the possibility to make their works available under an open content license of their choice, for instance under Creative Commons, without necessarily opting out from the collective management system.
Furthermore, the Rapporteur would like to give even more flexibility to rightholders in the management of the rights. CMOs should provide accurate repertory information, in particular for works falling into the Public Domain. CMOs should ensure that the information in respect of the works whose term of protection terminates is accurate and regularly updated, in order to exempt such works from licensing and avoid claims to be enforced by CMOs in that regard.
In the following we take a closer look at the relevant amendments contained in the draft opinion of the Committee on Culture and Education:
Use of open content licenses by members of collective management organisations
While recital 9 of the Commission proposal contains language (‘Finally, this Directive should not prejudice the possibilities of rightholders to manage their rights individually, including for non-commercial uses.’) that clearly indicates that the directive is intended to create more flexibility for members of collective management organisations to exercise their rights individually, the actual provisions of the Commission proposal are somewhat ambiguous in this regard. Given this our policy paper suggests:
…to modify Article 5. This provision currently gives right holders the right to authorise (and terminate such authorisation) the management of ‘rights, categories of rights or types of works and other subject matter of their choice’. By changing this language into ‘rights or categories of rights or works or types of works and other subject matter of their choice’, authors would be effectively enabled to remove some works from the collective management system. This would allow them to make these works available under an open content license of their choice…
In line with this proposal the draft opinion contains three amendements (30, 31 and 32) that, if adopted, would allow rights-holders to remove individual works from from the collective management system. That would enable them to manage these works themselves, giving them the ability to make them available under the terms of open content licenses, including those that allow for the royalty-free commercial use of the licensed works.
In addition the draft report contains an amendment (29) that introduces a new sub paragraph 2 a in Article 5 (‘Rights of rightholders’). This amendement would give members of collective management organisations the right to grant free licenses for non-commercial uses of their works:
Rightholders shall have the right to grant free licences for the non-commercial use of their works and rights. In this case, rightholders shall inform in due time the collective management organisations authorised to manage the rights of such works that such a free license has been granted.
The addition of this sub paragraph is very welcome as it allows members of collective management organisations to make use of some open content licenses (those that only allow for non-commercial uses of the licensed work) without having to remove these works from the collective management system. Having this possibility means that members of collective management organisations can enjoy the benefits of collective rights management (effective collection for royalties form large groups of commercial uses) as well as the flexibility offered by non-commercial open content licenses.
With regards to transparency our main concern has been that the measures intended to
increase the transparency with regards to the information about collective management organisations membership and their repertoire are insufficient. Given this we are happy to see that the draft opinion of the Committee on Culture and Education contains a number of amendments that would increase the transparency of membership and repertoire information.
Amendment 34 proposes a new paragraph 5 a in Article 6 (‘Membership rules of collecting societies’) that would require collective management organisations to make membership and repertoire information publicly accessible:
Collective management organisations shall make publicly accessible the list of their members and their respective rights or category of rights or works or type of works and other subject matter which the rightholders authorise the collective management organisation to manage, provided that the protection of the personal data of rightholders is preserved.
In addition amendments 61, 62 and 65 add language to articles 18 (‘Information provided to rightholders, members, other collecting societies and users on request’) and 19 (‘Disclosure of information to the public’) of the proposed directive that reiterates the requirement to make available membership lists and information on the managed repertoire through publicly accessible and searchable interfaces. As we had mentioned in our policy paper the last addition is crucial in an environment where automated data processing is fast becoming the norm.
Finally amendment 66 addresses another issue raised in our policy paper, the accurate and timely identification of works that have fallen into the Public Domain. In our policy paper we had suggested that…
…the legislator should give incentives for CMOs to provide accurate repertory information. In particular, CMOs shall ensure that the information in respect of the works whose term of protection terminates – thus ‘falling’ into the Public Domain – is accurate and regularly updated, so that Public Domain works are duly exempted from licensing.
This suggestion is taken up by amendment 66 which proposes to introduce a new paragraph 2 a under Article 19 (‘Disclosure of information to the public’) of the proposed directive:
Collective management organisations shall ensure that, in accordance with point (ab) of paragraph 1, the information on repertoire is accurate and regularly updated. In this respect, they shall particularly ensure that the information concerning the works whose terms of protection terminate is accurate and regularly updated, and made available to the public.
We are happy to see that most of the issues that we had identified are addressed by the draft opinion of the Committee on Culture and Education. The amendments discussed above would significantly strengthen the directive and therefor deserve broad support. If these amendments end up in the final version, the directive would strengthen the rights of authors who are members of collective management organisations with regards to the use of open content licenses. In addition it would strengthen the position of all users of protected works by ensuring the availability of accurate information on repertoires that are represented by Europe’s collective management organisations.