Nowadays, the lion’s share of private copying is done from the internet rather than from CDs as in the heyday of the record market. SUISA’s Distribution Rules have now been amended to reflect present circumstances. The adjustments are designed to ensure a more equitable distribution of the remuneration from private copying. Text by Anke Link
The Federal Copyright Act allows Swiss consumers to make copies for their own use and that of a close circle of friends and relatives, regardless which source is used to copy the music from. Since 1992, Swiss copyright legislation has provided that this form of private copying is subject to remuneration. This remuneration is not levied, however, from those who actually make the copies – i.e. the individual consumer – but from the producers and importers of the blank media used to store such copies.
At the outset, blank audiotapes were the chosen media: you would put one into a recorder and then wait by the radio until your favourite song was played, or you would use them to record music played back from a CD so you could listen to it on the Walkman. VHS tapes, used to record television broadcasts, were also among the first blank media carriers to be subject to the levy. Later came blank CDs and DVDs on which you could record music and films.
Today, the blank media levy applies mostly to digital storage media built into devices like smartphones and tablets. These offer variegated possibilities for storing music, films, and other works. The remuneration is levied as a flat fee per blank medium, regardless of the scope of the copying and the works actually copied. SUISA is responsible for collecting the levy from the producers and importers of the devices and distributing the proceeds to those who provide the content for the copying: music authors and artists, filmmakers, writers, etc.
How are the blank media revenues distributed?
When distributing the proceeds from the blank media levy, a first breakdown has to be made between the five Swiss copyright collecting societies: ProLitteris, SSA, SUISA, Suissimage, and Swissperform. SUISA acts as the central collecting agency for them all. The basis for this breakdown is the share of the copied repertoire represented by each Society.These shares are determined through representative surveys. But the surveys do not provide any information about the works themselves; they only establish whether the works concerned are musical works, films, videos, works of visual art, or texts.
The share that SUISA receives for the private copying of musical works is then distributed to SUISA’s members by allocation to its various distribution categories. Direct distribution is not possible because no one can say in practice which works were copied, stored or downloaded at which frequency by consumers from the internet. Apart from the undesirable intervention in the consumer’s private sphere, the cost of collecting such data would be exorbitant. That is why SUISA allocates the proceeds from the blank media levy to various distribution categories for which detailed programming information is available.
In the past, these allocations relied on the reasoning about the sourcing of private copying. It was assumed, for example, that a portion of the private copying would be sourced from CDs: accordingly, a share of the blank media levy revenues was allocated to the CD production distribution categories. Another share was allocated to the distribution categories for radio and TV broadcasting revenues following the assumption that another portion of private copying would be sourced from such broadcasts.
What sources are used for private copying today?
Today, however, the lion’s share of private copying is sourced from the internet. So basically, one could apply the proceeds of the blank media levy entirely to the distribution categories for online uses? Unfortunately, it is not quite that simple.
On the one hand, SUISA does not manage all the rights for all the music used on the internet. On the internet, SUISA is in competition with foreign rights administration societies and cannot, therefore, offer the entire world repertoire of music online. Only a portion of the works used on the internet produces revenues that flow into the distribution categories for online uses. These are not the only works used for private copying; private copying also taps all the other works in the world repertoire. If the revenues from the blank media levy were all allocated to the online uses distribution categories, a major portion of the privately copied works would be disregarded.
What is more, blank media fees cannot be levied for works copied from a legal source against payment (prohibition of double payment under Article 19(3bis) FAC). This applies to music from download shops like iTunes or from streaming platforms like Spotify. SUISA distributes the revenues collected from these platforms to the corresponding online distribution categories based on the programme reports received from the platforms. Legal prescriptions provide that no blank media levies may be charged for these downloads or for offline storing of streaming services. Therefore, the works involved cannot rightfully be allocated any amounts from the blank media revenues.
Downloaded songs are often re-copied. What about them? – True. Contrary to the original downloading or offline storing of streaming services, these subsequent copies are subject to the blank media levy. But in practice nobody knows which works are involved or how often they are copied. So an indirect method for distributing the revenues from the flat rate blank media levy has to be found for these, and for all the other privately copied works.
How do the Distribution Rules account for the new circumstances?
Since the allocation of revenues based on the private copying sources would lead to the wrong results under present circumstances, we engaged Gfs Zurich, a market research company, to assist us in finding alternative methods for ensuring the most equitable distribution of blank media revenues. Gfs Zurich conducted a representative survey for this purpose. In the survey, consumers were asked where they had “encountered” the last work they had copied for private use – regardless of the source from which they had made the copy: at a concert, the cinema, on the radio, on television, a new CD/LP or a DVD? SUISA has sufficient information about the works used in those distribution channels to be able to use such data as the distribution basis for the blank media revenues.
Henceforth, therefore, the revenues from the blank media levies will be allocated to the distribution categories used to distribute the revenues from these other distribution channels. This is consistent with the principle set forth in point 5.3.2 of the Distribution Rules (DR), namely: “Remuneration where no programmes are provided shall be allocated to such distribution categories in which the same or at least a similar kind of music prevails”. In certain cases, no alternative distribution channel could be determined. The corresponding share of the blank media revenues is therefore assigned to the distribution categories for radio broadcasts; since these are the categories with the broadest repertoire, this system benefits the greatest number of rightholders.
Point 5.5.5 has thus been amended to read:
|Point 5.5.5||CT 4 (blank media), 4i (built-in digital storage media) – Blank media levies|
|(for domestic licensing)||11.5%||21A|
|(for central licensing)||11.5%||21Z|
|The remaining 16% shall be allocated in supplement to the TV remuneration for foreign broadcasters under Tariff CT 1.|
|In the case of mobile phones and tablets, CT 4i revenues shall be allocated 90% to audio and 10% to video. In respect of the other blank media regulated by CT 4 and CT 4i, the relevant distribution key shall be determined by the type of blank media.|
The Intellectual Property Institute approved this amendment on 6 April 2021; we expect to receive approval from the Liechtenstein regulatory authorities in the next few weeks. The amendment is effective three months after it is approved and will therefore be implemented for the next distribution of blank media revenues in September 2021.
Who receives more and who less money from private copying?
The re-allocation of the blank media revenues will have a positive effect overall. At least three times more authors and publishers will receive more money than before. For most members, however, the increase will be only a small amount. Those who will see a decrease in their blank media revenues are likely to be affected more strongly.
Nevertheless, we are convinced that the revision was both necessary and equitable. The decreases are mostly due to the cancellation of allocations to the online distribution categories, and to reduced allocations to the 21Z distribution categories for central licensing of CD productions. We have explained above why allocations to the online distribution classes are no longer justified today.
The same applies to the 33.0% allocation to distribution category 21Z for central licensing which is no longer justified since: the decision dates back to the heyday of the record market when SUISA was collecting about CHF 25 million per year in revenues for CD productions. By 2019, the distributable amount from central licensing was no more than CHF one million, yet CHF 2.3 million in blank media revenues were allocated to distribution category 21Z. Rightholders who earned CHF 1 from the distribution of their works on CD were collecting CHF 2.17 from the blank media levy.
Following the virtual collapse of the record market, these allocations largely overstepped the original intent. As a result a small number of rightholders were being favoured at the expense of the majority. The adjustments now introduced are more equitable for everyone, and we trust that even those who henceforth receive less income from the blank media levy will appreciate this fact.
SUISA Distribution Rules
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