SUISA’s objective is to simplify the tariff, for smaller events in particular, in order to save administration costs and facilitate access to music. Since concert organisers are pursuing much the same goal, solutions geared to simplification should be within reach. Matters are more complicated, however, because the associations involved in the negotiations are challenging certain basic principles of copyright and tariff law.
The law is crystal clear on one key point: remuneration must be determined firstly by taking into account the proceeds obtained from the use of the work (Article 60 CopA). With regard to concerts, it is common knowledge that ticket prices have risen steeply in recent years, and with them the turnover realised by concert organisers. These companies point out, however, that this trend is due to the increase in the costs they have to carry and not to any improvement in their profit margin. Moreover, they argue that since composition work has not changed in recent years, there is no reason for it to be valued any higher.
“It is only fair for authors to participate in the revenues which would not be possible without works performed in concert.”
Organisers’ costs are in any event matched by other parties’ earnings. It is only fair for authors to participate in the revenues which would not be possible without works performed in concert. That is why, according to legal precedent, the remuneration for authors’ rights is calculated based on “gross” proceeds, i.e. disregarding the costs borne by the users of the works. The principle of a proportionate participation in the economic value of the rights is also enshrined in Article 18 of the European Directive of 2019 on copyright and related rights in the Digital Single Market. In an information society accustomed to everything being (nearly) free, and where works do not always earn what they should, this does not necessarily enure to the benefit of the entitled parties. But this principle is part of the “rules of the game” and SUISA has to accept it. One cannot therefore expect SUISA to deviate from the rule when it ensures the entitled parties fair remuneration but to apply it in all other cases …
Another point raised by our negotiating partners is that people do not go to a concert just for the music, they also go for the show and the special atmosphere. The current tariff does not take the “non-musical elements” sufficiently into account. This argument had already been made in the preceding negotiations in 2016 and the parties had agreed to reduce the tariff rates in order to take it in account. Depending on the case, the reduction can attain 25%. It is therefore wrong to claim, as certain organisers have in the press, that SUISA sticks blindly to the maximum percentage stipulated by law. That said, SUISA fails to see why the solution agreed in 2016 should be unacceptable today when nothing has changed.
Notwithstanding these differences, concert organisers also have an interest in ensuring that the SUISA tariff affords authors and publishers fair remuneration. Otherwise, large rightholders will seek to manage their rights directly rather than through SUISA. Organisers would then be confronted with licensing terms set unilaterally without state regulation, and they would no longer have the benefit of the “one-stop shop” made possible by collective rights management. As a result, acquiring rights might well become both more expensive and more complicated. To avoid this, all parties must pull in the same direction.