Tag Archives: Collective management organisation

Strong together

22 June 2018: it’s that time of the year again. As a member of the Cooperative Society SUISA entitled to vote you will be able to decide on the future of your copyright society and to take stock with respect to the past business year at the General Assembly in the Bierhüebli in Bern. By Andreas Wegelin, CEO

Strong together

Voting at SUISA’s General Assembly: The umbrella of the co-operative joins the collective weight of authors’ and publishers’ votes. (Photo: Juerg Isler, isler-fotografie.ch)

Cooperative societies are usually alliances of persons or institutions who have the same or similar goals and interests. The idea behind such associations is as simple as it is effective: Together, we are strong! Economic, social or cultural issues that are presented in a unified manner often gain more momentum and impact than just the voice of an individual.

As your Cooperative Society for authors and publishers of music, we can support your interests. The main objective is to generate fair conditions and guarantee a fair remuneration for music creators. Collective management of rights has become an ever more significant aspect: These days, SUISA negotiates with some corporations which act globally. The market power of such negotiation partners may only be faced with the support and strength of a unified community.

Under such circumstances, it is even more positive that 2017 has been the best year in SUISA’s history from a financial perspective. An overall amount of CHF 131.4m in copyright remuneration can be paid out to rightsholders and sister societies. That is more than ever before.

SUISA annual results: online usage of music exceeds physical formats for first timeSUISA annual results: online usage of music exceeds physical formats for first time
Authors and publishers of music will receive CHF 131.4 million from SUISA this year. Last year the collecting society received CHF 150 million in copyright from domestic and international sources – CHF 2.9 million more than the previous year. In particular, reimbursements from private copying and the online sector contributed to this growth. For the first time, revenues from online music recordings exceeded those from sales of physical formats. But there is still a pressing need for action in the area of streaming. The internet platforms continue to benefit almost exclusively from this growth market, rather than composers, lyricists and publishers of music. Read more

During the coming GA, a revision of SUISA’s Articles of Association is planned for ratification. This has become necessary because a Directive at EU level has been passed with new provisions, especially regarding the transparency of our work. And this is something that affects SUISA, too: SUISA is responsible for Liechtenstein and operates for online usages on an European market level.

Exploitation rights in the EU and review of SUISA’s Articles of AssociationExploitation rights in the EU and review of SUISA’s Articles of Association
Liechtenstein has been – other than Switzerland – a member of the European Economic Area since 1995 and must, as such, accept a major proportion of the European Union legal provisions. What do EU exploitation rights have to do with the revision of the SUISA Articles of Association? Read more

During the GA, you are also going to have the oppoertunity to meet the President of Swissperform. She is going to report on the cooperation among the Swiss collective management organisations.

Why SUISA members should also consider joining SWISSPERFORMWhy SUISA members should also consider joining SWISSPERFORM
Composers and lyricists who are SUISA members and are also active as artists and/or producers and whose performances are broadcast by Swiss or foreign radio and TV channels are entitled to receive a remuneration from SWISSPERFORM. For all those authors-composers-artists/producers, a membership with SWISSPERFORM is thus a necessary addition to their SUISA affiliation in order to safeguard their rights and the full remuneration they are entitled to. Read more

FONDATION SUISA also has got some news on its support activities, and its foundation Director is going to elaborate on that. Finally, the ongoing copyright law revision is expected to be a topic for discussion, since hearings took place among the parliamentary committees last April and May.

New support strategy: “We want to look ahead”New support strategy: “We want to look ahead”
FONDATION SUISA reinforces its activities regarding the support of music in Switzerland and the Principality of Liechtenstein: Each year, four music projects shall be launched under the motto “Get Going!”, and every other year, a bigger amount shall be allocated to works under the slogan “Carte Blanche”. Read more
Copyright law revision: work starts in the parliamentary committeesCopyright law revision: work starts in the parliamentary committees
On 22 November 2017, the Federal Council presented its Message on the revision of the Federal Copyright Act (FCA), and referred the copyright bill (FCA-B) to the two houses of Parliament. The bill reflects the compromise reached by the AGUR12 II working group at the beginning of March 2017. Parliament has started working on the bill, and SUISA was invited to present its point of view on 12 April 2018 at a hearing organised by the Science, Education and Culture Committee of the National Council. SUISA also had the opportunity to state its views before the Legal Affairs Committee of the National Council, first in writing and then orally on 18 May 2018. Read more

All of these topics will be covered by our SUISAblog and SUISAinfo, one of which you are currently reading. Of course, you’ll find out more information and more details if you travel to the GA in Bern. I look forward to welcoming as many of you as possible in person then.

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SUISA General Assembly 2018: Your opinion counts!SUISA General Assembly 2018: Your opinion counts! SUISA’s ordinary General Assembly takes place on 22 June 2018 in the Bierhübeli in Bern. It will be opened with a music performance by the ad hoc formation Swiss Ländlermix in line with the theme; “Folk music – Switzerland crossways”. Important business items on the agenda are the review of the Articles of Association, the new Complaints Committee and an election of a substitute for the Distribution and Works Committee. Danièle Wüthrich-Meyer, President of Swissperform will attend as guest speaker. Read more
131.4m Swiss Francs for composers, lyricists and publishers131.4m Swiss Francs for composers, lyricists and publishers It was with satisfaction that members of the SUISA Board approved the results of the previous year during their meeting at the end of March 2017. The total turnover was 3.2% higher than that of the previous year. An overall amount of CHF 131.4m can be paid out to rights holders. The Board has, in addition, decided that a supplementary distribution of 7% shall be carried out on top of all regular distributions in 2018. Read more
Copyright Act Review: Authors and publishers must benefit more from the online exploitation of their worksCopyright Act Review: Authors and publishers must benefit more from the online exploitation of their works The Federal Council has adopted a dispatch on the new Copyright Act. SUISA is in principle content with the current version of the law. The solutions achieved in the working group for the Copyright Act (AGUR12 II) were implemented. In order for authors, performers, publishers and producers to benefit better from the digitisation, it is necessary to adopt important additions. Read more
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22 June 2018: it’s that time of the year again. As a member of the Cooperative Society SUISA entitled to vote you will be able to decide on the future of your copyright society and to take stock with respect to the past business year at the General Assembly in the Bierhüebli in Bern. By Andreas Wegelin, CEO

Strong together

Voting at SUISA’s General Assembly: The umbrella of the co-operative joins the collective weight of authors’ and publishers’ votes. (Photo: Juerg Isler, isler-fotografie.ch)

Cooperative societies are usually alliances of persons or institutions who have the same or similar goals and interests. The idea behind such associations is as simple as it is effective: Together, we are strong! Economic, social or cultural issues that are presented in a unified manner often gain more momentum and impact...read more

Why SUISA members should also consider joining SWISSPERFORM

Composers and lyricists who are SUISA members and are also active as artists and/or producers and whose performances are broadcast by Swiss or foreign radio and TV channels are entitled to receive a remuneration from SWISSPERFORM. For all those authors-composers-artists/producers, a membership with SWISSPERFORM is thus a necessary addition to their SUISA affiliation in order to safeguard their rights and the full remuneration they are entitled to. Text by David Johnson, SWISSPERFORM/SIG antenne romande, guest author

Why SUISA members should also consider joining SWISSPERFORM

It is recommended that SUISA authors such as Seven (pictured), who are also artists and whose performances are broadcast on radio and TV become SWISSPERFORM members. (Photo: Tabea Hüberli)

Are you a musician and do you contribute to recordings which are used commercially or in music videos? Do you perform your own musical compositions or those of other composers on the radio or on TV? Are you a performing producer in the case of recordings? Do you perform music which is used in films, commercials or as main themes of broadcasts?

In that case, you do hold neighbouring rights and are entitled to receive a remuneration for the transmission of your performances. In order to receive such remuneration, you must be a member of SWISSPERFORM.

Neighbouring rights

The reason neighbouring rights carry their name is that they are in close ‘vicinity’ to copyright. Neighbouring rights do not protect the work itself but the performance of the work.

Artists, whether they are musicians, singers or conductors can at the same time be composers, lyricists and/or arrangers of a work that they perform. The performance of their works is therefore protected independently of the work that they perform.

In cases where artists finance their own recordings, they are also economic producers and therefore hold two different types of neighbouring rights, whose owners are remunerated by SWISSPERFORM in separate distributions for the relevant usages and which require artists to enter into a second membership type (producer). The term of protection in a recorded performance is 50 years. For the calculation of the expiry of the term of protection, the date of the first publication is authoritative, provided that the recording has been published for the first time within 50 years. Should this not be the case, the recording date is authoritative as a calculation basis for the expiry of the term of protection.

SWISSPERFORM

Switzerland is the only country in the world that has a collective management organisation which unites all rightsholders in the neighbouring rights realm under one roof: apart from artists and producers from the music and film sectors, broadcasters are also rightsholders within SWISSPERFORM. Members can pursue various activities and therefore belong to several rightsholder categories, for example musicians whose recordings were produced by themselves, played by their band and broadcast on the radio.

SWISSPERFORM’s activities are similar to those of SUISA. Musicians and producers assign their rights to the society for management purposes. SWISSPERFORM then collects the licence fees from the users based on the statutory tariffs and pays them to the entitled parties on the basis of its distribution rules which have been ratified by the Swiss Federal Institute of Intellectual Property (supervisory authority).

SWISSPERFORM collaborates with SUISA when it comes to the collection of the licence fees. They are usually invoiced on the basis of the Common Tariffs which are set for each type of usage if exploitations affect the areas of activity of more than one collective management organisation and simultaneously affect copyright and neighbouring rights.

On behalf of SWISSPERFORM, SUISA collects, among other income streams, remuneration from private radio and TV stations as well as the levy on blank media and storage media integrated into hardware.

Ten percent of the entire tariff collections of SWISSPERFORM are allocated for the support of various autonomous legal entities with socio-cultural character. One part of these subsidies is used to co-finance the Swiss Artists’ Foundation, SIS, which supports professional musicians by providing them with means for concerts and tours in Switzerland and abroad.

Distribution of radio and TV usages

In the case of artists in the phono (audio) category, i.e. musicians, singers, conductors etc., whose performances were broadcast on the radio and on TV, a distinction is made between several distribution models.

SWISSPERFORM directly distributes the licence fees collected for the usage of commercially released sound recordings (sound recordings that are available in the marketplace) and from videoclips used on radio/TV. The income is allocated in proportion to the actual usage of the recordings. Main criteria for the distribution are the duration of the broadcast of a recording as well as the value of the roles of artists who contribute to a broadcast.

The following distributions are made on behalf of the Swiss Artists’ Cooperative Society, SIG, subject to a mandate from SWISSPERFORM. Licensing fees from the following areas are distributed:

  • the direct exploitation of performances and the usage from non-commercially released sound recordings (sound recordings that have not been commercially released or made available). This manual distribution is based on a declaration system and takes into account transmissions of concerts on the radio/TV, own productions of recordings by the radio/TV channels, musical performances in radio plays, commercials, jingles, ident tunes, theme tunes etc.;
  • the usage of music in films: This distribution is based on a declaration system at the same time as on an automatic system (depending on the broadcast on TV) and takes into account the music on sound tracks of films (score music), music from commercial sound recordings on sound tracks of films, music from non-commercial sound recordings (library music) on sound tracks of films, music from TV commercials as well as jingles etc.;
  • the usage of other audiovisual performances. This distribution is based on a declaration system and takes transmissions of concerts and artistic performances in TV shows into consideration, among others.

Please note: If you do not make a declaration to SWISSPERFORM and SIG that you have contributed to sound recordings or the transmission of your artistic performances, in order to receive your remuneration, the amounts that have not been claimed by you will expire after a limitation period of five years and will be re-distributed.

This is how you become a member of SWISSPERFORM

Membership with SWISSPERFORM is free. You can request your membership agreement online:
www.swissperform.ch/en/service/order-an-agreement.html

How do I declare my contribution to commercially available recordings?
www.swissperform.ch/uploads/media/Discography_01.xlsx
www.swissperform.ch/uploads/media/Explanations_on_the_discography_form_02.pdf

How do I declare direct performances, non-commercially released sound recordings, the usage of music in films and other audiovisual usages?
www.interpreten.ch/de/verteilung-ab-2017/info/

Further information:
www.swissperform.ch, SWISSPERFORM website
www.interpreten.ch, Schweizerische Interpretengenossenschaft SIG (Swiss Artists’ Cooperative Society) website

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Composers and lyricists who are SUISA members and are also active as artists and/or producers and whose performances are broadcast by Swiss or foreign radio and TV channels are entitled to receive a remuneration from SWISSPERFORM. For all those authors-composers-artists/producers, a membership with SWISSPERFORM is thus a necessary addition to their SUISA affiliation in order to safeguard their rights and the full remuneration they are entitled to. Text by David Johnson, SWISSPERFORM/SIG antenne romande, guest author

Why SUISA members should also consider joining SWISSPERFORM

It is recommended that SUISA authors such as Seven (pictured), who are also artists and whose performances are broadcast on radio and TV become SWISSPERFORM members. (Photo: Tabea Hüberli)

Are you a musician and do you contribute to recordings which are used commercially or in music videos? Do you perform your own musical compositions or those of...read more

Exploitation rights in the EU and review of SUISA’s Articles of Association

Liechtenstein has been – other than Switzerland – a member of the European Economic Area since 1995 and must, as such, accept a major proportion of the European Union legal provisions. What do EU exploitation rights have to do with the revision of the SUISA Articles of Association? Text by Bernhard Wittweiler

Exploitation rights in the EU and review of SUISA’s Articles of Association

Copyright developments in Europe are of importance for Switzerland’s SUISA, too: The image shows CISAC President Jean-Michel Jarre on 06 March 2018 handing a petition to the European Parliament. It had been signed by 14,000 authors and composers requesting fair rules in the digital marketplace in order to stop the “transfer of value” on the internet. (Photo: CISAC / Iris Haidau)

The European Union (EU) had, for quite some time, established rules for the collective management of copyright and neighbouring rights via the collective management organisations. Initially, individual decisions were passed by the EU Commission and the European Court of Justice (ECJ) which were derived from EU Competition Laws. The EU bodies thus managed to break up the strict territorial demarcation between the collective management organisations (CMO) and the exclusivity of the rights assignment, to facilitate rightsholders’ switching to another CMO and to create more competition between the CMOs in general.

In the nascent age of online exploitation of music, the EU Commission set another milestone with its Recommendation of October 2005. It wanted to achieve the biggest possible competition between the CMOs regarding online rights management as well as improve transparency and equal treatment of all rights holders in the CMOs. The Recommendation resulted in the complete freedom of rightsholders to choose which CMO in Europe they wish to entrust with their online rights, in the creation of one-stop-shops for online licences and multi-territorial online licences.

Rules for collective management

But it didn’t stop there. Over the years, the needs grew for a comprehensive and standardised regulation of the collective management organisations’ activities in the EU and for a harmonised internal market as the basis for collective management. Thus, on 26 February 2014, the 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 (CRM Directive) was issued. Directives are paramount to laws in significance, but do not take direct effect; instead, they have to be implemented by individual EU member states into their national laws.

The CRM Directive has the aim to set minimal standards regarding an orderly mode of operation of collective management organisations (corporate governance), their finance management, transparency and accountability vis-a-vis members, sister societies and the public, the right of co-determination of members, equal treatment and non-discrimination of rights holders, sister societies and users, settlement of disputes, management and licensing of online rights as well as the supervision of CMOs by the authorities.

EU Directive authoritative for Liechtenstein

The CRM Directive of the EU was declared to be authoritative for the States of the European Economic Area (EEA), and thus also Liechtenstein. Liechtenstein therefore had to adopt the Directive and implement it into its national laws. For this purpose, a new, distinct law was created, the Liechtenstein Collecting Societies Act (VGG), which was passed on 29 March 2018 by the Landtag (Parliament). Previous provisions for the collective management in the copyright laws of Liechtenstein were taken over into the VGG.

SUISA has been active in the Principality of Liechtenstein for decades, since 1999 with its own state licence and under the supervision of the respective authority, the Office of Economic Affairs in Liechtenstein, as the supervisory authority. Authors and publishers from Liechtenstein are SUISA members, SUISA collects licence fees for copyright in Liechtenstein based on its tariffs for the music usages that take place there. Just like in Switzerland, the tariffs and the distribution rules valid for Liechtenstein require a state licence and SUISA has to be accountable to Liechtenstein’s supervisory authority each year regarding its business activities.

Adaptation of SUISA Articles of Association

With its activities and licence to operate in Liechtenstein, SUISA is subject to the provisions in Liechtenstein regarding collective management. We are therefore obliged to fulfil the specifications and requirements of the new VGG – and thus also the CRM Directive of the EU. The new provisions do not entail no earth-shattering or major innovations, we already adhere to the majority of the provisions which have been a matter of course for us for a long time. Nevertheless, there are still some areas that require adaptation.

The necessary changes of the SUISA Articles of Association will be presented to the General Assembly on 22 June 2018 for ratification so that they may enter into force from 01 January 2019.

The most important of the proposed changes to the Articles of Association are the following:

  • SUISA membership is no longer dependent on nationality, residence or any other link to Switzerland or Liechtenstein (authors) respectively a presence in Switzerland or Liechtenstein (publishers) (item 5.1);
  • extension of the competence of the General Assembly (item 9.2.2);
  • preparation and publication of a transparency report which shows various information and key figures in addition to the annual report (item 9.2.3);
  • facilitation of electronic participation at the GA, provided that the statutory provisions (in the Swiss OR, the Swiss Federal Code of Obligations) allow us to do so (item 9.2.10, new);
  • declarations by the Board and Management to the GA regarding conflicts of interest (items 9.3.11 and 9.6.4, new);
  • creation of a Complaints Committee (item 9.5, new).

Revision of the Articles of Association for online business

One important strategic business sector of SUISA that depends on the revision of the Articles of Association is the following: SUISA has been licensing music of SUISA members at pan-European level since 2013 in the online sector, partially even far beyond Europe’s borders. Pursuant to the EU Directive, collective management organisations must meet certain standards in order to be able to carry out cross-border licensing within the European Union.

So that SUISA may continue its pan-European licensing in the online sector, the provisions of the EU Directive must be adhered to. The online business is a focus of SUISA’s strategy for the immediate future. By way of revising the Articles of Association, the conditions will be met that SUISA can directly negotiate with and collect from online providers such as iTunes or Spotify regarding exploitations outside Switzerland and Liechtenstein, too.

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Copyright law revision: work starts in the parliamentary committeesCopyright law revision: work starts in the parliamentary committees On 22 November 2017, the Federal Council presented its Message on the revision of the Federal Copyright Act (FCA), and referred the copyright bill (FCA-B) to the two houses of Parliament. The bill reflects the compromise reached by the AGUR12 II working group at the beginning of March 2017. Parliament has started working on the bill, and SUISA was invited to present its point of view on 12 April 2018 at a hearing organised by the Science, Education and Culture Committee of the National Council. SUISA also had the opportunity to state its views before the Legal Affairs Committee of the National Council, first in writing and then orally on 18 May 2018. Read more
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All comments will be moderated. This may take some time and we reserve the right not to publish comments that contradict the conditions of use.

Your email address will not be published.

Liechtenstein has been – other than Switzerland – a member of the European Economic Area since 1995 and must, as such, accept a major proportion of the European Union legal provisions. What do EU exploitation rights have to do with the revision of the SUISA Articles of Association? Text by Bernhard Wittweiler

Exploitation rights in the EU and review of SUISA’s Articles of Association

Copyright developments in Europe are of importance for Switzerland’s SUISA, too: The image shows CISAC President Jean-Michel Jarre on 06 March 2018 handing a petition to the European Parliament. It had been signed by 14,000 authors and composers requesting fair rules in the digital marketplace in order to stop the “transfer of value” on the internet. (Photo: CISAC / Iris Haidau)

The European Union (EU) had, for quite some time, established rules for the collective management of copyright and neighbouring rights...read more

Copyright law revision: work starts in the parliamentary committees

On 22 November 2017, the Federal Council presented its Message on the revision of the Federal Copyright Act (FCA), and referred the copyright bill (FCA-B) to the two houses of Parliament. Text by Vincent Salvadé

Copyright law revision: work starts in the parliamentary committees

Revision of Swiss copyright law: work has started in the Federal Palace in Berne. (Photo: Simon Zenger / Shutterstock.com)

The bill reflects the compromise reached by the AGUR12 II working group at the beginning of March 2017. Parliament has started working on the bill, and SUISA was invited to present its point of view on 12 April 2018 at a hearing organised by the Science, Education and Culture Committee of the National Council. SUISA also had the opportunity to state its views before the Legal Affairs Committee of the National Council, first in writing and then orally on 18 May 2018.

Each time, SUISA acted in association with Swisscopyright, the entity which brings together the five Swiss collective management societies in the field of copyright and neighbouring rights. SUISA started by underscoring that the main objective of Swisscopyright was to ensure fair remuneration for cultural creators, including in the digital age. For this reason, the five collective rights management societies supported the compromise achieved at AGUR12 II level and, consequently, the Federal Councilʼs proposal. However, the societies asked for changes in the provisions governing the new entitlement to remuneration for video on-demand (VoD) with a view to ensuring that the new regulations better reflect the AGUR12 II compromise and secure fair remuneration for creators.

1. General appraisal of the FCʼs bill

Swisscopyright welcomed the Federal Council’s intention to introduce an “extended collective licence” (Article 43 FCA-B). Collecting societies could thus grant blanket authorisations for certain uses, including on behalf of rightholders they do not contractually represent; this would foster cultural projects while assuring remuneration for entitled parties. The blanket authorisation would apply to uses which cannot be individually controlled by rightholders; collecting societies would act as an “insurance” (of a sort) for users. The extended collective licence is perfectly consistent with the function of a collective rights management society, which is to facilitate and simplify rights management for all stakeholders.

Generally speaking, Swisscopyright welcomes all the measures designed to improve collective rights management: according to the FCʼs proposal, users would be required to communicate their declarations to collecting societies in electronic form to facilitate automatic processing (Article 51 FCA-B); collecting societies would be authorised to exchange the data delivered by users (Article 51(1bis) FCA-B); accelerated tariff appeals procedure (Article 74(2) FCA-B); and the Federal Arbitration Commission in charge of tariffs would be permitted to hear witnesses (see draft of new Article 14(1) lit. g of the Administrative Procedure Act). These new rules are designed to increase efficiency, reduce management costs and ensure more money is available for distribution to cultural creators.

“Swisscopyright believes these new anti-piracy measures are necessary to foster legal offers ensuring fair remuneration for creators.”

Swisscopyright also supports the Federal Councilʼs proposals for new anti-piracy measures since they contribute to improving the situation. According to Article 39d FCA-B, platforms presenting significant piracy risks would be obligated to actively combat copyright infringements (stay down obligation). The possibility of processing data for criminal prosecution purposes (Article 77i FCA-B), must be included in the FCA since the Federal Supreme Court ruled that collecting information on pirates and hackers (in particular their IP addresses) is not currently admissible under the Law on Data Protection (ATF 136 II 508). Swisscopyright believes these new anti-piracy measures are necessary to foster legal offers ensuring fair remuneration for creators.

Swisscopyright accepted the proposed copyright exception for the use of works for scientific research (Article 24d FCA-B), but only in the context of the AGUR12 II compromise. The fact that – conversely to what had been proposed in the original draft in 2015 – this exception is not accompanied by a claim to remuneration is indeed problematic for rightholders in the literary field. Swisscopyright underscored that no further concessions to the scientific community would be accepted on the backs of cultural creators.

2. Right of remuneration for VoD

Online platforms making 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. The collecting societies 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 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 recordings. 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.

The plenary debates in the National Council (expected in autumn) will show whether the parliamentary committees were sensitive to the argumentation put forward by Swisscopyright.

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Blockchain – an ending or future for collective management organisations?Blockchain – an ending or future for collective management organisations? Dear members, everyone in the music industry is talking about “Blockchain” at the moment. But it’s not easy to find anyone who can explain in simple terms what it’s all about … Read more
Changes to the distribution of collections for internet useChanges to the distribution of collections for internet use New distribution keys will be used for the distribution of collections for internet use (audio and video on demand offers). For downloads, a new key of 25% for performing rights and 75% for reproduction rights shall be applied. For streaming, the split shall consist of 75% performing rights and 25% reproduction rights. Read more
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Leave a Reply

All comments will be moderated. This may take some time and we reserve the right not to publish comments that contradict the conditions of use.

Your email address will not be published.

On 22 November 2017, the Federal Council presented its Message on the revision of the Federal Copyright Act (FCA), and referred the copyright bill (FCA-B) to the two houses of Parliament. Text by Vincent Salvadé

Copyright law revision: work starts in the parliamentary committees

Revision of Swiss copyright law: work has started in the Federal Palace in Berne. (Photo: Simon Zenger / Shutterstock.com)

The bill reflects the compromise reached by the AGUR12 II working group at the beginning of March 2017. Parliament has started working on the bill, and SUISA was invited to present its point of view on 12 April 2018 at a hearing organised by the Science, Education and Culture Committee of the National Council. SUISA also had the opportunity to state its views before the Legal Affairs Committee of the National Council, first in writing and then orally on...read more

2018 – a challenging year?!

Review of the Copyright Act, No-Billag-Initiative, online licensing, further development of “my account”… With such topics, SUISA continues to pursue the aim to offer its members efficient services and to create optimal framework conditions. We will face the challenge! By Irène Philipp Ziebold, Director

2018 – a challenging year?!

SUISA supports a NO to the No-Billag-Initiative: “If we did not do anything, we would not live up to our duties as a self-help organisation of music creators” writes Director Irène Philipp Ziebold. (Photo: Manu Leuenberger)

We want to continue to provide efficient services to our members in 2018 and to create optimal framework conditions for them. We have been pursuing these goals in a continuous process for quite a while. For this year we have made a clear note of these intentions and resolutions in our ‘to do’ notepads, since we are facing many challenges in 2018.

With respect to the framework conditions, for example, it is important that authors and publishers benefit better from the online usage of their works with the review of the Copyright Act, or that, in the interest of Swiss music, the reception fees made out of solidarity for public service media are not abolished. In an increasingly cross-border oriented competitive environment, it is, however, also of entrepreneurial importance to optimise the service range offered for members and customers alike.

Since December 2017, statements are made available via “my account”Since December 2017, statements are made available via “my account”
Thanks to the password-protected members’ area “my account”, our members can keep an overview of their distribution statements and distribution settlements. Many members asked us to stop the dispatch by post. We have taken this request into account and introduced the option to renounce on the postal dispatch. Read more

Something we at SUISA can determine as a Cooperative Society is whether a member can access its settlements via “my account”. Since December 2017, only those who have had access to “my account” have been receiving their distributions electronically. It is important in this context that we approach such developments in the interest of our members and never lose sight of the goal to offer high-quality efficient services. Driven by such a motivation, we have continued to improve our services for our members throughout the last few years.

Above and beyond that, we also have the duty as a collective management organisation for copyright to make social and political statements and to create optimal framework conditions as a consequence. Compared to the above mentioned “internal” processes and services, we cannot make the “right” decisions ourselves but influence matters so that the interests of our members are being taken seriously.

Copyright Act Review: Authors and publishers must benefit more from the online exploitation of their worksCopyright Act Review: Authors and publishers must benefit more from the online exploitation of their works
The Federal Council has adopted a dispatch on the new Copyright Act. SUISA is in principle content with the current version of the law. The solutions achieved in the working group for the Copyright Act (AGUR12 II) were implemented. In order for authors, performers, publishers and producers to benefit better from the digitisation, it is necessary to adopt important additions. Read more

We thus engage ourselves to ensure that the creatives, our members as the content suppliers for online platforms do not come out of this empty-handed and that they can expect a modern Copyright Act.

We therefore also support a NO to the No-Billag-Initiative. For many of our members, the public service idea, especially the opportunity to disseminate music and culture, is essential. In this case, the broadcasters of SRG SSR as well as the 35 state-licensed TV and radio stations play a fundamental role. If the reception fees made by Swiss households out of solidarity for their public service media would be abolished, then important platforms for our members for the dissemination of their works would fall away.

Subsidised broadcasters offer more variety and more SUISA repertoireSubsidised broadcasters offer more variety and more SUISA repertoire
Subsidised radio and TV broadcasters in Switzerland and Liechtenstein tend to create more broadcasting space for the music of SUISA members than privately financed channels. Moreover, the majority of the broadcasters supported by the Swiss Federation play more diverse music titles than their counterparts which are focussed on advertising revenue. In the interest of our local music creation and the cultural diversity, we therefore have to reject an abolition of the solidarity-based fees for public service media. Read more

SUISA therefore supports the activities of creators and artists and their associations such as Sonart – music creatives Switzerland, Suisseculture or the Swiss Music Council against No-Billag. If we did not do anything, we would not live up to our duties as a self-help organisation of music creators. And that’s why we take on the challenges 2018 is going to throw at us!

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Always on top of things thanks to “my account”Always on top of things thanks to “my account” More than 14,000 members are already using our member portal “my account”. More than half of all new registrations of original works during 2016 were done online. Why do more and more members regularly use “my account”? Thanks to the password-protected members’ area “my account”, our members keep an overview of the most significant SUISA matters such as settlements and work registrations. Read more
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Review of the Copyright Act, No-Billag-Initiative, online licensing, further development of “my account”… With such topics, SUISA continues to pursue the aim to offer its members efficient services and to create optimal framework conditions. We will face the challenge! By Irène Philipp Ziebold, Director

2018 – a challenging year?!

SUISA supports a NO to the No-Billag-Initiative: “If we did not do anything, we would not live up to our duties as a self-help organisation of music creators” writes Director Irène Philipp Ziebold. (Photo: Manu Leuenberger)

We want to continue to provide efficient services to our members in 2018 and to create optimal framework conditions for them. We have been pursuing these goals in a continuous process for quite a while. For this year we have made a clear note of these intentions and resolutions in our ‘to do’...read more

Subsidised broadcasters offer more variety and more SUISA repertoire

Subsidised radio and TV broadcasters in Switzerland and Liechtenstein tend to create more broadcasting space for the music of SUISA members than privately financed channels. Moreover, the majority of the broadcasters supported by the Swiss Federation play more diverse music titles than their counterparts which are focussed on advertising revenue. In the interest of our local music creation and the cultural diversity, we therefore have to reject an abolition of the solidarity-based fees for public service media. Text by Andreas Wegelin and Manu Leuenberger

Subsidised broadcasters offer more variety and more SUISA repertoire - NO to No Billag

The Association ‘Musikschaffende Schweiz’ (Swiss Music Creatives) presented a “SwissMusicOnAir Award” for the first time in 2017. The prize was awarded to the licensed private radio broadcaster with the highest percentage of Swiss (pop) music in its programme: the subsidised Berne-based local radio Radio BeO. (Photo: Radio BeO)

On average, subsidised Swiss radio channels broadcast a higher percentage of music by SUISA members than private radio channels without any public sector funding. In the case of broadcasters which are subsidised by the Swiss Federation, the number of different music titles in the programme is also usually much higher than in the case of their mainly ad-funded counterparts.

A (co-)funding by the Swiss Federation thus contributes to Swiss music creation and diversity taking place in the broadcast programmes. This conclusion isn’t just plucked out of thin air, as the data included in music use reports reflect, which are available to the two collective management organisations SUISA and Swissperform.

If a company in Switzerland wishes to broadcast radio and/or TV programmes or feed them into cable networks, it requires a licensing agreement with SUISA. Under this agreement, the broadcasters are required to provide exact details relating to the programme they transmit.

Broadcast percentages for music by SUISA members

The information provided on the broadcast music must contain the title of the musical work, the name of the composer(s) and artist(s) as well as the broadcast duration, among others. Such detailed information enables SUISA to carry out a correct distribution of the collected licence fees: The collections will be paid out to those authors and publishers whose works have been transmitted based on the information provided in the broadcast reports for the programmes.

Apart from that, the entirety of the broadcast reports reveals an overview of the entire music programme of a channel. In particular, SUISA is in a position to carry out the analysis of the played music of its own members on a well-founded basis. As soon as at least one of the authors is a SUISA member, the musical piece is considered to be a SUISA work for analytical purposes. A music title whose composers and lyricists are exclusively non-SUISA members are therefore considered to be part of ‘other’ repertoire, irrespective of the artist(s) in the course of establishing the music percentages.

Broadcast percentages SUISA works in 2016 in %

Figures rounded off; source: SUISA. (Graphics: Crafft)

A glance on the calculated broadcast percentages from the year 2016 reveals a clear trend: Subsidised radios create more space for the music of SUISA members than privately funded stations. Please note: Not only the SRG programmes play an increasing portion of SUISA repertoire, but also the local channels such as Radio BeO, Kanal K or Radio Stadtfilter. The latter also receive a share of the radio/TV reception fees. The programme mandate therefore shows its effect in this context.

Programme mandates for the national (SRG) and regional (local broadcasters) public service differ in their respective detail. Both of them are, however, subject to basic provision of Art. 93 of the Federal Constitution of the Swiss Confederation: “Radio and television shall contribute to education and cultural development, to the free shaping of opinion and to entertainment. They shall take account of the particularities of the country and the needs of the Cantons. They shall present events accurately and allow a diversity of opinions to be expressed appropriately.”

Diversity in the music programmes of the Swiss radio channels

The cultural mandate of SRG includes cultural reporting, education in the cultural sector as well as cultural promotion. In the course of this service mandate, SRG has agreed guidelines for the promotion of Swiss music creation in the radio programmes in the Swiss Music Charter together with the associations and institutions of the Swiss music sector. An analysis of radio broadcasts dating back to 2015, based on an evaluation by Swissperform, shows the positive impact of the public service mandate on the programme diversity:

Percentage of Swiss music and programming diversity in Swiss radio channels (2015 Analysis)
SRG broadcasters Percentage of Swiss music across all musical programming Number of different music titles Private broadcasters Percentage of Swiss music across all musical programming Number of different music titles
SRF MW 40.31 28,978 Radio 24 12.16 2,320
Swiss Classic 37.38 4,007 Argovia 10.25 2,669
Swiss Jazz 21.07 10,645 Sunshine 11.75 1,746
Virus 57.60 8,206 Central 16.32 6,885
Swiss Pop 36.78 4,929 Zürisee 10.45 4,319
SRF 3 21.25 13,702 Pilatus 11.32 2,389
SRF 2 8.22 16,826 Energy Zürich 1,670
SRF 1 16.95 12,189
Rete Uno 7.45 8,600
Rete Due 8.99 18,335
Rete Tre 14.73 14,209
RTR 37.23 18,176
RTS 1 6.25 12,728
RTS 2 14.28 27,075
RTS 3 20.89 19,220
Option Musique 12.81 6,881
Total 224,706 41,753
Average 22.64 14,044 12.04 3,143
Source: Swissperform

Based on this analysis, nearly every fourth played music title on SRG channels included Swiss music creators (percentage of CH music: 23%). The average percentage of broadcast Swiss music within ad-funded private channels amounted to a mere 12%.

A comparison of the number of various music titles proves another significant difference within the evaluated programmes: The audience of the SRG channels was able to listen to an average of 14,044 different recordings throughout the year. In the programmes of the private radio channels, the average across 12 months amounted to 3,143 recordings, a significantly lower number of different music titles. To put it bluntly: Private channels had a rotation of 9 different songs per day.

In the interest of Swiss music NO to No Billag

The public initiative, marketed under the deceptive title “No Billag” aims at a complete abolition of radio and TV reception fees. The initiators of this campaign have not set their targets on the collection body Billag. Instead, they intend to establish in the Federal Constitution of the Swiss Confederation that the Swiss Federation shall not subsidise any radio and TV stations. At the same time, if the initiative were to be successful, the previously mentioned basic provision according to which radio and TV must contribute to a cultural development and to take the national particularities of a country into account, would be deleted from the Federal Constitution of the Swiss Confederation without replacement.

In a purely commercially oriented radio and TV landscape, the broadcasters would inevitably focus on their advertising revenues. The current facts on broadcast percentages of Swiss Music and the number of different music titles convey an impression which impact such a finance-driven orientation would have on the programme contents. In the interest of our local music creation and the cultural diversity, we therefore have to categorically reject an abolition of the solidarity-based fees for public service media.

Further information:
Complete evaluations of the broadcast percentages of SUISA works, both in the radio transmissions of SRG as well as in the broadcasts of private radios in 2016 are published here: www.suisa.ch/hit-parades

NO to No Billag – Campaign against the public initiative

A petition to gather signatures is currently launched among Swiss creators and artists for an appeal with which they take a joint position against the No Billag initiative and for a culturally diverse Switzerland. The campaign is coordinated by the Schweizerische Interpretengenossenschaft (Swiss Artists’ Cooperative) SIG and Swissperform and is supported by numerous representatives from cultural sectors such as SUISA, music creators, the Musikrat (Music Council) and many more. In January 2018, creators and artists want to go public with their joint campaign.

The initiative has, however, not just seen resistance from within cultural circles. There are campaigns by various committees and institutions that are engaged in a NO to No Billag / NON à No Billag on 04 March 2018:

Nein zu No Billag, Initiative by the Unikom radios and others
Nonobillag.ch, interest group «NEIN zu No-Billag» (NO to No Billag)
Sendeschluss? Nein!, Association «Nein zum Sendeschluss» (No to transmission shutdown)
Nein zum Anschlag auf unsere Demokratie, Operation Libero
NON à No Billag, Association contre la disparition des radios et TV
Medien für alle – Médias pour tous – Media per tutti, Verein Medien für alle – médias pour tous – media per tutti
Amici della RSI, Associazione Amici della RSI
Salviamo la RSI, Pagina indipendente per la difesa del pluralismo svizzero dei media
No Billag No Svizzera, Comitato No Billag No Svizzera

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  1. Michel says:

    Seit mindestens 8 Jahren habe ich weder einen Fernseher noch ein Radio eingeschaltet. Ich beziehe mein Unterhaltungsprogramm und die Musik von anderen Diensten, bei denen ich selbst wählen kann, was ich sehen oder hören möchte. Und DAFÜR bezahle ich auch.

    Wenn jemand an der tollen “Vielfalt” der subventionierten Sendern hängt, warum soll ICH das bezahlen? Bezahl doch selbst! So wie ich es auch für meine Interessen tue.

    Simples Verursacherprinzip.

    Die Argumente der “Nein zu No-Billag” sind einfach nur lachhaft.

  2. Guldenfels says:

    No Billag, no cultur ?
    Dieser Slogan ist einfach nur Falsch !
    Entstehen doch genau in der Subcultur, weit weg von Subventionen, die Kreativen Würfe dieser Welt.
    Ausserdem gab es schon vor der Billag-Zwangsgebühren Kulturen….

    • Manu Leuenberger says:

      Bei der Genossenschaft SUISA sind über 36 000 Komponisten, Textautoren und Verleger aus allen musikalischen Sparten angemeldet. Darunter befinden sich auch zahlreiche Musikschaffende, die aus dem Independent-Bereich stammen oder in musikalischen Nischenmärkten tätig sind. Gerade diese Musikschaffenden haben vor allem auf den subventionierten Sendern eine Chance, verbreitet zu werden. (Mit-)Finanzierung aus öffentlicher Hand hat nachweislich einen günstigen Effekt darauf, dass lokale Musik oder Nischenmusik gesendet wird. Dies zeigen die im Artikel geschilderten Zahlen der Sendeanteile und der Anzahl der unterschiedlichen Musiktitel auf. Man denke an Sender wie Kanal K, Radio Lora oder auch die Plattform mx3, die ohne Beihilfe aus den Gebühren nicht existieren können.

      Manu Leuenberger / SUISA Kommunikation

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Subsidised radio and TV broadcasters in Switzerland and Liechtenstein tend to create more broadcasting space for the music of SUISA members than privately financed channels. Moreover, the majority of the broadcasters supported by the Swiss Federation play more diverse music titles than their counterparts which are focussed on advertising revenue. In the interest of our local music creation and the cultural diversity, we therefore have to reject an abolition of the solidarity-based fees for public service media. Text by Andreas Wegelin and Manu Leuenberger

Subsidised broadcasters offer more variety and more SUISA repertoire - NO to No Billag

The Association ‘Musikschaffende Schweiz’ (Swiss Music Creatives) presented a “SwissMusicOnAir Award” for the first time in 2017. The prize was awarded to the licensed private radio broadcaster with the highest percentage of Swiss (pop) music in its programme: the subsidised Berne-based local radio Radio BeO. (Photo: Radio BeO)

On...read more

Blockchain – an ending or future for collective management organisations?

Dear members, everyone in the music industry is talking about “Blockchain” at the moment. But it’s not easy to find anyone who can explain in simple terms what it’s all about … By Vincent Salvadé, Deputy CEO

Blockchain - an ending or future for collective management organisations?

British singer songwriter Imogen Heap is said to be the pioneer in the practical application of Blockchain technology for music distribution: Since October 2015, her single “Tiny Human” can be purchased and licensed online via the platform Ujomusic. The payment of the parties involved is based on pre-defined distribution rules via crypto currency. (Photo: Screenshot ujomusic.com)

Blockchain is a technology, a database, a register. It enables the secure exchange of information in a network which is based on the contribution of qualified participants (miners) who check the validity of the transaction by means of the processing power of their computers. All transactions are grouped into blocks which are linked with one another and each participant can check whether the validation operation is correct. This is also how Bitcoin works.

You haven’t quite grasped all of the above? Me neither. It appears, however, that this technology which is based on “smart contracts” gets away without intermediaries: The composer could therefore be paid for concert tickets or music streaming directly. There is even word in the street that this could be the end of collective management organisations.

“Collective management of rights is more than just pure technology. It is based on an important value: a joint defence of creative work.”

Same old story: Since online music emerged about 20 years ago, people predicted that the internet would free authors and help them to become independent of intermediaries. Well, collective management organisations are still here and they constitute an indispensable counterweight to internet giants.

Collective management of rights is, after all, more than just pure technology. It is based on an important value: a joint defence of creative work. Authors will always need an organisation which supports them, which negotiates contracts for them (including smart contracts) and campaign for fair transaction conditions (even if they have been certified by the Blockchain).

But hold on a minute: This statement does not allow us to rest on our laurels. It’s the duty of collective management organisations to be interested in the Blockchain, to understand it and to try and use it for the utmost advantage of authors and publishers.

“Collective management organisations hold essential information which ensures that the remuneration is transferred to the right persons.”

SUISA collaborates with its sister societies to achieve this aim – in Switzerland and abroad. This technology could, after all, be instrumental in avoiding conflicts among rights holders with respect to a work or regarding their due remuneration.

Collective management organisations hold essential information which ensures that the remuneration is transferred to the right persons, and they also possess powerful IT instruments. So how would it be possible that they’re skipped in the transaction validation process?

One thing is for sure: You must not leave the technology companies alone to deal with these questions. Otherwise the Blockchain would become a blocking chain – at the detriment of creative work!

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Mint Digital Services: FAQsMint Digital Services: FAQs SUISA and SESAC, a US collective management organisation, have established Mint Digital Services as a joint venture. Mint Digital Services will take over the invoicing and administration services for SESAC and SUISA’s online licensing activities. The joint venture will also offer services to publishers and collective management organisations. Warner/Chappel Music, a major publisher, is already using Mint’s services. Here the main FAQs. Read more
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Dear members, everyone in the music industry is talking about “Blockchain” at the moment. But it’s not easy to find anyone who can explain in simple terms what it’s all about … By Vincent Salvadé, Deputy CEO

Blockchain - an ending or future for collective management organisations?

British singer songwriter Imogen Heap is said to be the pioneer in the practical application of Blockchain technology for music distribution: Since October 2015, her single “Tiny Human” can be purchased and licensed online via the platform Ujomusic. The payment of the parties involved is based on pre-defined distribution rules via crypto currency. (Photo: Screenshot ujomusic.com)

Blockchain is a technology, a database, a register. It enables the secure exchange of information in a network which is based on the contribution of qualified participants (miners) who check the validity of the transaction by means of the processing...read more

SUISA Board looks ahead into the future

Initiated by Ticino-based Board member Zeno Gabaglio, the Board of Directors of SUISA held its autumn meeting in Lugano this year. The agenda items for the meetings on 3 and 4 October 2017 were quite exhaustive. A selection of the topics under discussion are included in this report from the Board by Dora Zeller.

SUISA Board looks ahead into the future

The current Board of SUISA in a photoshoot dating back to spring 2017. (Photo: Marc Latzel)

An important agenda point was the ratification of the business strategy. Management is looking ahead into the future with this strategy, defining which objectives it wishes to reach in a specified period of time. SUISA’s strategy usually covers a four-year period, currently 2016-2020. Due to the business events and plans it is subject to review several times a year. It is subdivided in four main areas:

  • Cost & growth (cultivate customer relations, maximise members’ incomes, support and challenge staff members)
  • Trust (members are ‘shareholders’)
  • Develop copyright
  • Align the business with new demands (online and offline)

For each of the main areas, facts are recorded; subsequently, the relevant measures are listed in terms of planning how to reach the strategic goals. For example, in the case of “members are our shareholders”, this means: Rethink and diversify services, standardise documentation and works registration, cultivate transparency and communication, guarantee domestic and international administration of members’ rights and assure quality via automation and process optimisation.

Increased competition in the licensing business requires measures

When it comes to the main area “align the business with new demands”, offline business was added as a new area. In the course of the last few years, there is now competition for music licences and there are new providers in the marketplace, too. These providers are no cooperative societies and do not belong to the authors as is the case for the majority of collective management organisations in Europe. They are profit-making private companies.

There are new developments in the “direct licensing” area for major concerts as well as for the collection of background music (piped music). The task at hand is to tackle the new licensing offers, to create SUISA’s own offers (tariffs) in a competitive manner, to search collaboration and to promote the legal framework conditions.

On the basis of the agreed strategy, management is now going to work on a roadmap. The latter will serve the purpose of splitting the measures into small, specific steps to which deadlines and responsibilities will be allocated.

Distribution: 8,126 members received CHF 11,093,520

SUISA distributes the majority of its tariffs on a quarterly basis. In September, collections for performances (Tariffs D, K; 1st quarter 2017), broadcasts SRG (Tariff A; 1st quarter 2017), “advertising windows” (2015) and reproduction (Tariffs PA, PI, PN, VI, 1st quarter 2017) were included in the distribution.

The remuneration was paid out to SUISA members (CHF 5,729,852.00) and to sister societies (CHF 5,363,669.00). Approx. CHF 1,229,425 were held back due to a lack of details, missing documentation etc. The reserved monies will be paid out in adjustment runs as soon as the necessary data for a correct distribution has been completed.

Collaboration between ProLitteris, SSA, SUISA, Suissimage and Swissperform

In 1993, the five Swiss collective management organisations signed the first written collaboration agreement. This was triggered by the expansion of copyright towards neighbouring rights back in the day. Before that, the societies had entertained informal exchanges and coordinated joint tariff negotiations.

In the coordination committee (KOAU) of the societies, the agreement was recently reviewed. The intention was to reflect the current situation and to simplify the collaboration in complex areas. New provisions include the process of passing resolutions as well as collection principles relating to collections on behalf of other societies. The SUISA Board has approved the revised collaboration agreement.

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All comments will be moderated. This may take some time and we reserve the right not to publish comments that contradict the conditions of use.

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Initiated by Ticino-based Board member Zeno Gabaglio, the Board of Directors of SUISA held its autumn meeting in Lugano this year. The agenda items for the meetings on 3 and 4 October 2017 were quite exhaustive. A selection of the topics under discussion are included in this report from the Board by Dora Zeller.

SUISA Board looks ahead into the future

The current Board of SUISA in a photoshoot dating back to spring 2017. (Photo: Marc Latzel)

An important agenda point was the ratification of the business strategy. Management is looking ahead into the future with this strategy, defining which objectives it wishes to reach in a specified period of time. SUISA’s strategy usually covers a four-year period, currently 2016-2020. Due to the business events and plans it is subject to review several times a year. It is subdivided in...read more

Publishers’ participation at SUISA not at risk

A decision by the European Court of Justice dating back to 2015 and two German court decisions made last year have challenged the basic principle of a participation of publishers with respect to remuneration paid out by collective management organisations. Here are the reasons why what happened at Gema cannot repeat itself at SUISA. Text by Martin Korrodi

Publishers’ participation at SUISA not at risk

A decision by the Supreme Court Berlin has shaken the traditional distribution practice at Gema. Due to the legal situation in Switzerland, publishers will be able to participate – as usual – in the distributable amount from SUISA. (Photo: Niroworld / Shutterstock.com)

It was the decision by the Supreme Court Berlin against Gema in particular which left many publisher members of SUISA in a state of uncertainty, as it rather specifically affects the participation of music publishers in the payment of royalties. Would it also be possible in Switzerland that a comparable decision could declare the long-term distribution practice by SUISA to be invalid?

The decision of the Supreme Court Berlin

On 14 November 2016, the Supreme Court Berlin decided that Gema may only include such members in its royalty collection pay-outs who have effectively transferred their rights management to it. Even if the decision only refers to two specific cases, where authors disagreed with the participation of their publishers, the court’s reasoning challenges Gema practices in general.

A central argument in the opinion of the court is the so-called principle of priority: It determines that a rights owner cannot assign his/her rights a second time after he/she has already made a valid rights transfer to a third party – the first rights transfer collides with any subsequent rights transfer of the same rights.

In this context, what this actually specifically means is that an author who has already assigned his/her rights to Gema via a rights administration agreement, cannot assign those rights once more when signing a publishing contract. As a consequence, a participation of the publisher is – based on this decision – out of the question, as the publisher has not acquired any rights which justify a participation.

Furthermore, a participation of the publisher is not justified if only the “publishing rights” have been assigned. Publishing rights in the music sector traditionally includes only the right of reproduction and distribution of music scores. These rights are not managed by Gema. Since, in this case, the definition of the assigned rights in the publishing agreement is too limited, no justification for a publisher participation arises as a consequence.

The court has determined the distribution plans of Gema to be invalid, as far as they provide for a generic publisher participation which only requires the conclusion of a rights administration agreement as well as the notification of the published works, and not the assignment of rights. This, however, was leading to a participation of a party without entitlement to the remuneration, which, in turn, was in violation of the legally embedded prohibition of arbitrary action.

Law and practice in Switzerland

In general, the principle of priority for right assignments also applies in Switzerland: Such authors that have originally acquired and validly assigned rights, cannot transfer these rights again to a third party at a later point in time. In line with local laws this does not automatically imply that a publisher has no right to a participation as soon as an author has joined SUISA prior to the conclusion of a publishing agreement.

These findings are mainly linked to the fact that Swiss Law does not make the entitlement to participate in the remuneration dependent on whether the party holding the rights has actually assigned the rights to the collective management organisation. Art. 49 URG (Swiss Copyright Act) expressly distinguishes between the “original holders of rights” (authors) and “other entitled parties” (such as publishers), between whom the distributable amount is to be shared. The entitlement of a publisher to participate in the remuneration therefore mainly arises from the contractual agreements the publisher has entered into with the author.

Publishers’ participation at SUISA

In line with the above, SUISA may only consider a publisher for distribution purposes if the authors have agreed to this and expressly instruct SUISA to participate the publisher in all or specific remuneration arising from the exploitation of their works (so-called right of instruction of the principal). It is necessary to take into consideration – even in Switzerland – that the scope of the rights assignment is unequivocally stated in the agreement, so that SUISA may participate the publisher in the collections from the individual usage rights and compensation claims. It can therefore be assumed that a mere assignment of the subjective publishing right without further specifying the respective rights may not justify a publisher’s participation in all rights managed by SUISA either.

Furthermore, the distribution rules – in analogy to the legal situation in Germany – must not contain any provisions which imply that publishers participate in the collected remuneration as a principle without specifying an express contractual basis. The SUISA distribution rules meet these requirements by admitting publishers as parties entitled to receive a payment only in those cases where they fulfil their “contractual obligations” vis-a-vis the authors. With regards to the determination of the relevant shares of the parties entitled to receive a payment the distribution rules refer to the contractual arrangements between authors and publishers.

As a consequence it seems rather unlikely that a publisher participation at SUISA would fail for the same reasons as was the case in the European Union and especially in Germany. Despite this position, SUISA is currently optimising some provisions in its distribution rules, its general terms and conditions for rights administration and the SUISA model publishing agreement in order to exclude any residual risks.

Reactions to the decision in Germany
The German Bundestag has immediately suggested the launch of a review of the Act on Collective Management Organisations (CMO Act, VGG) in order to counteract the legal uncertainty which had arisen as a consequence of the decision. The new provisions affect the participation of publishers that have not assigned the rights directly (mitigation of the principle of priority) on the one hand, and the option to participate a publisher in the remuneration collected from the management of statutory compensation claims, on the other hand.
In order to legitimate the publisher participation for the past and guarantee it for the future, Gema has made a confirmation process available to its members. In the course of this process, the involved parties can declare their consent to the shares determined in the Gema distribution plan and to agree with a mutual participation which is not based on who has actually assigned the rights to Gema. www.gema.de/de/aktuelles/verlegerbeteiligung/
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A decision by the European Court of Justice dating back to 2015 and two German court decisions made last year have challenged the basic principle of a participation of publishers with respect to remuneration paid out by collective management organisations. Here are the reasons why what happened at Gema cannot repeat itself at SUISA. Text by Martin Korrodi

Publishers’ participation at SUISA not at risk

A decision by the Supreme Court Berlin has shaken the traditional distribution practice at Gema. Due to the legal situation in Switzerland, publishers will be able to participate – as usual – in the distributable amount from SUISA. (Photo: Niroworld / Shutterstock.com)

It was the decision by the Supreme Court Berlin against Gema in particular which left many publisher members of SUISA in a state of uncertainty, as it rather specifically affects the participation of...read more

Mint Digital Services: FAQs

SUISA and SESAC, a US collective management organisation, have established Mint Digital Services as a joint venture. Mint Digital Services will take over the invoicing and administration services for SESAC and SUISA’s online licensing activities. The joint venture will also offer services to publishers and collective management organisations. Warner/Chappel Music, a major publisher, is already using Mint’s services. Here the main FAQs: By Fabian Niggemeier, Martin Korrodi, Sebastian Spring and Erika Weibel

Mint Digital Services: FAQs

Through Mint Digital Services, SUISA is relying on its high-performance, state-of-the-art IT infrastructure to develop new business. (Graphics: Hej – Büro für Strategie und Gestaltung in Kultur und Wirtschaft, Zurich)

What is Mint Digital Services?
Mint Digital Services is a joint venture established by SUISA and SESAC, a US music rights organisation. Mint Digital Services offers administration services for multi-territorial online music licensing. Essentially, its services involve processing usage reports for online platforms, identifying represented repertoires, and invoicing.

The purpose of Mint Digital Services is on the one hand to streamline online licensing of SESAC and SUISA’s own repertoires. On the other, the joint venture intends to offer its services to large music publishers and, in due course, to other collective management organisations.

What were the reasons underlying SESAC and SUISA’s decision to establish Mint Digital Services?
There were three main reasons:

  1. Through Mint Digital Services, SUISA can turn to account its high-performance IT infrastructure for the development of new business areas.
  2. The joint venture will enable SUISA to fully exploit the capacity of its existing IT infrastructure. So far, SUISA’s extensive investment in its online licensing and distribution activities has only served its own repertoire. With little additional cost, Mint Digital Services can take on the invoicing and administration of SESAC’s repertoire and those of other publishers – at a later date perhaps even for other collective management organisations.
  3. SUISA is equipping itself for the future. In coming years, collective management organisations will see their monopolies challenged. The rule that only one society should be responsible for licensing the world repertoire in its own country is gradually eroding. The trend towards direct licensing – in other words, multi-territorial licensing of (solely) own repertoire – is progressing even outside the online sector.

Should members apply to Mint for online uses of their works?
No. Nothing will change for SUISA members. SUISA remains the contact for members and will continue to issue their settlement statements. Mint Digital Services simply provides services to SUISA.

Developing a new company costs money. Will members now receive lower settlements owing to higher cost-coverage deductions by SUISA?
No. The greater part of the investment was already made in recent years since SUISA has regularly upgraded its IT – regardless of the joint venture. The cost of developing the new company is therefore relatively low, and the business plan shows that the investment can be fully depreciated in a few years.

Can members expect to receive more money, more quickly for uses in the USA thanks to the partnership with SESAC?
The partnership with SESAC will have no effect on settlement flows from the USA. The joint venture only concerns online uses outside the USA. SUISA will continue to use its best efforts to improve payments from the USA and other countries. However, SUISA has only limited influence on the practice of the foreign sister societies.

Warner is a customer of Mint Digital Services. Does that mean that SUISA will henceforth focus on the majors to the detriment of the needs of its members?
No. Warner is Mint’s customer – not SUISA’s. Moreover, SUISA strives to be as customer-oriented as possible, regardless whether it is dealing with a major, an independent or an author.

Will Mint Digital Services be responsible for licensing the online repertoire?
No. The joint venture will only provide administration and invoicing services. SESAC and SUISA will establish two separate companies in the coming weeks to handle the licensing of their repertoires. Mint SESAC Licensing, a subsidiary of SESAC, and Mint SUISA Licensing, a subsidiary of SUISA. The two companies will be responsible for the separate online licensing of their respective rights, and for the performing rights of most Anglo-American companies.

Can SUISA now negotiate better terms and conditions with online platforms?
We may be able to negotiate better contracts with certain online platforms. But it is up to the platforms themselves to decide whether they want to negotiate with the SUISA and SESAC licensing entities individually or jointly. If they decide in favour of joint negotiations, Mint SUISA Licensing may be able to profit from the larger SESAC repertoire in order to obtain better terms and conditions.

SUISA regularly renegotiates its contracts with online platforms with a view to securing the best possible terms and conditions for authors and publishers; Mint SUISA Licensing will do the same.

Press release: “SUISA and SESAC Launch Mint Digital Services and Join Forces with Warner/Chappell Music as its First Client”
For more information about Mint visit the website of the joint venture: www.mintservices.com

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Leave a Reply

All comments will be moderated. This may take some time and we reserve the right not to publish comments that contradict the conditions of use.

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SUISA and SESAC, a US collective management organisation, have established Mint Digital Services as a joint venture. Mint Digital Services will take over the invoicing and administration services for SESAC and SUISA’s online licensing activities. The joint venture will also offer services to publishers and collective management organisations. Warner/Chappel Music, a major publisher, is already using Mint’s services. Here the main FAQs: By Fabian Niggemeier, Martin Korrodi, Sebastian Spring and Erika Weibel

Mint Digital Services: FAQs

Through Mint Digital Services, SUISA is relying on its high-performance, state-of-the-art IT infrastructure to develop new business. (Graphics: Hej – Büro für Strategie und Gestaltung in Kultur und Wirtschaft, Zurich)

What is Mint Digital Services?
Mint Digital Services is a joint venture established by SUISA and SESAC, a US music rights organisation. Mint Digital Services offers administration services for multi-territorial online music...read more