No adequate share for audiovisual artists regarding video on demand and streaming success

Film director Ursula Meier is speeding from one success to the next, both in Switzerland as well as abroad. She elaborates why it is necessary to enhance the value of the position of film makers and actors in the video on demand (VOD) sector in the course of the copyright law review. Text/Interview by guest author Jürg Ruchti, CEO, SSA

No adequate share for audiovisual artists regarding video on demand and streaming success

Ursula Meier is a film director and a member of SSA. SSA is a sister society of SUISA and manages copyright for stage and audiovisual works. (Photo: Claude Dussez)

Ursula Meier, you are a member of the Société Suisse des Auteurs (SSA) – why?
Well, first and foremost because SSA looks after my copyright in an efficient manner. It also provides me with additional services: SSA is a cooperative society which is based on mutuality and solidarity and defends the interests of creators of audiovisual and stage works.

Creatives are asking for an implementation of new provisions regarding the video on demand (VOD) into the Swiss Copyright Act.
Yes, that’s very important. Thanks to the internet, our works are being consumed as often as never before but creatives are not paid to the extent that they would deserve. Digital economy players claim the income which have arisen from the consumption of our works but reject any obligations above and beyond that.

But isn’t it the case that authors negotiate their rights with the producer when they create a film?
Yes, but the contractual chains for the exploitation of the works are so complex and sometimes opaque that the income does actually not reach the artist or creator. There is a multitude of contracting parties. The digital economy leaves producers in an unprecedented state of uncertainty. They don’t know whether they’ll ever get their investment back. There are several reasons for that. This affects the levels of remuneration which they can grant artists during the contractual negotiations prior to the completion of a film. Our conditions have thus got worse.

Why should VOD platforms be obliged to remunerate authors via their collective management organisations?
Because if that were the case, authors would get a fair share of the success of their work, since their collective management organisations would get involved with the last player in the value chain i.e. the party which is in direct contact with the consumer. In the TV sector in Switzerland, this model has been established for quite some time and it works to our satisfaction. The current law does actually provide an obligation to pay for the rental of video tapes or DVDs. Since VOD has now taken over this market segment, the law should be adapted to this development.

The suggested new provision does, however, not seem to be beyond all doubt.
No, since it contains two contentious issues: First, it also affects music which does not want this provision since its system already works well in all countries. This is not the case for scriptwriters, directors and actors. A collective management of their rights only exists in few countries and the platforms often operate from other countries. The second issue which is problematic relates to works which are commissioned by TV broadcasters: The legislative draft provides for them to be excluded from the new mandatory remuneration for artists.

What exactly is the problem in the case of commissioned work?
These works are the most sought after works on this new market, for example series. The circle of principals has grown: In future, VOD platforms join TV broadcasters. There is no reason to treat the former in any other way than the latter. Works do follow a path. Sooner or later they can be consumed on a multitude of platforms. If commissioned works are being excluded from this new VOD right, authors do not receive any remuneration for their online exploitation. Their situation would therefore hardly improve. Here’s an example: A new series, commissioned by the RTS, which subsequently is made available via a streaming service such as Amazon would be exempt from the new legislation. This exclusion undermines the meaning of the new law and its general intention consequently misses the mark. The argument which forms the basis to this legal article does not reflect reality and I hope that this will be resolved in the course of the debates in the respective sessions.

About Ursula Meier
Ursula Meier is an internationally renowned film director. “Home” (with Isabelle Huppert) was among the nominated films at the 2008 Cannes Film Festival and received numerous international awards. In 2012, “L’enfant d’en haut” (with Léa Seydoux and Kacey Mottet Klein) was awarded the special prize Silberner Bär [Silver Bear] at the Berlinale [Berlin Film Festival]. Just like “Home”, in 2010, the film was given three Swiss film awards, among them the award for the best film, and it also represented Switzerland at the Oscars. At the beginning of 2018, Ursula Meier completed “Journal de ma tête”, a TV film with Fanny Ardant and Kacey Mottet Klein. The film was nominated for the Berlinale. Ursula Meier was the president of the jury for the Caméra d’Or at the Cannes Film Festival this year.
About the remuneration right for video on demand
Online platforms that make available feature films (cinema and TV) have replaced DVD rental. Whereas, under Article 13 FCA, authors and artists used to receive a share of DVD rental revenues, this is no longer the case for online availability. The revised legislation must ensure that authors and performing artists, as the primary creators of value, participate in this new economic model. Swisscopyright welcomed the introduction of a right to remuneration in Articles 13a and 35a FCA-B in principle. The collecting societies, however, underscored that the right to remuneration must be supplemental to the fees paid to the creators by producers (for the commissioning of works, the performances therein and the corresponding rights). The FCʼs proposal is not clear in this respect. Swisscopyright argues that the parliamentary debates must make it clear that the right to receive remuneration is supplemental to, and not in lieu of, such fees.
“The composers and publishers of film music entrust their rights to collective rights management societies like SUISA which act directly vis à vis the VoD platforms. The contractual system for music assures composers more favourable financial conditions than they would have under a statutory remuneration right.”
Moreover, the exclusion of music works from the new right to remuneration was an essential element of the AGUR 12 II compromise; regrettably, the FC has not included this exclusion in its proposal. Since the voluntary collective management model functions well in the music sector, we should come back to the solution advocated by AGUR12 II. The music and the audiovisual sector diverge significantly in this respect “The composers and publishers of film music entrust their rights to collective rights management societies like SUISA which act directly vis à vis the VoD platforms (alongside the aggregators who handle all other rights in the film). The contractual system for music assures composers more favourable financial conditions than they would have under a statutory remuneration right.
In the field of music, however, it is necessary to ensure that the revenues distributed by collecting societies are properly apportioned between the composer and the publisher. The composer must in any event receive an equitable share. Article 49(3) FCA already guarantees this for concerts, radio broadcasts and CD productions. But this rule only applies to areas under federal regulation, and therefore not to VoD. As a result, Swisscopyright proposes rewording paragraph 5 of Article 13a FCA-B to stipulate the composerʼs right to a fair share of the voluntary collective management revenues, in line with SUISAʼs current practice.
Excerpt from the SUISAblog-Article: “Copyright law revision: work starts in the parliamentary committees” by Vincent Salvadé.

The interview with Ursula Meier was conducted for the “Sessionsbrief” (session letter) (PDF, in German) of Swisscopyright, published in September 2018. Swisscopyright is the joint umbrella of the five Swiss collective management organisations ProLitteris, SSA, SUISA, Suissimage and Swissperform. With the “Sessionsbrief”, the societies inform interested parties from within the political scene as well as the public on subjects affecting copyright.

Swisscopyright Website

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