Tag Archives: Copyright

The revised copyright law has come into force

The coronavirus pandemic has naturally eclipsed this event. Yet the amended Federal Copyright Act came into force on 1 April 2020 after the Pirate Party failed its attempt to launch a popular referendum. Text by Vincent Salvadé

The revised copyright law has come into force

The updated Federal Copyright Act came into force on 1 April 2020. (Photo: Manu Leuenberger)

This concluded the efforts of ten years’ work. The revision was initiated in 2010 when State Concillor Geraldine Savary, who subsequently joined SUISA’s Board, filed a postulate titled “Does Switzerland need a law against unlawful downloading of music?”

How will the new law affect SUISA’s activity? The following points are noteworthy:

The law introduces new anti-piracy measures:
Under certain conditions, hosting platforms are henceforth obliged to durably prevent unlawful content from being remade available through the use of their services (stay down obligation, Article 39d CopA); moreover, rightholders may process personal data insofar as this is essential for the purpose of criminal prosecution (Article 77i CopA).

Certain measures are designed to improve collective rights management:
Users must provide the collective rights management organisations with the necessary information in an electronic form allowing for automatic data processing (Article 51(1) CopA); collective rights management organisations are entitled to exchange the information provided by users with one another (Article 51(1bis) CopA); accelerated procedure for tariff appeals before the Federal Administrative Court (Article 74(2) CopA); and the Federal Arbitration Commission responsible for approving tariffs is now entitled to hear witnesses (see new Article 14(1)(h) of the Federal Act on Administrative Procedure).

Lastly, the notion of an “extended collective licence” has been introduced into Swiss law (Article 43a CopA):
Collecting societies can now grant a blanket authorisation for certain uses, even for rightholders they do not represent contractually; this enhances the legal certainty for users and secures additional remuneration for rightholders. This option applies to uses which cannot be individually controlled by rightholders; collecting societies would act as an “insurance” (of a sort) for users. This is a welcome innovation (already applied in Scandinavian countries) which underscores the role of “facilitator” often played by collective rights management organisations.

SUISA accompanied the entire legislative process. Not all these innovations are spectacular. But we believe that, globally, they will facilitate the performance of our mission in the service of rightholders.

Related articles
Switzerland finally has a new copyright law!Switzerland finally has a new copyright law! On 27 September 2019, both the National Council and the Council of States at last held a final vote approving the partial revision of the Swiss Federal Copyright Act, ending a process initiated in 2010 with a postulate by Géraldine Savary. It is now for the Federal Council to determine when the modernised Copyright Act will come into force – unless a referendum is successful. Read more
Adapting federal copyright law to digital usageAdapting federal copyright law to digital usage On 26 March 2019, after months of protest on the streets and in the Internet community, the European Parliament approved the proposal for a new EU Directive on Copyright in the Digital Single Market. Revision of copyright law in Switzerland and the EU: where are the similarities, where are the differences? 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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The coronavirus pandemic has naturally eclipsed this event. Yet the amended Federal Copyright Act came into force on 1 April 2020 after the Pirate Party failed its attempt to launch a popular referendum. Text by Vincent Salvadé

The revised copyright law has come into force

The updated Federal Copyright Act came into force on 1 April 2020. (Photo: Manu Leuenberger)

This concluded the efforts of ten years’ work. The revision was initiated in 2010 when State Concillor Geraldine Savary, who subsequently joined SUISA’s Board, filed a postulate titled “Does Switzerland need a law against unlawful downloading of music?”

How will the new law affect SUISA’s activity? The following points are noteworthy:

The law introduces new anti-piracy measures:
Under certain conditions, hosting platforms are henceforth obliged to durably prevent unlawful content from being remade available through the use of their services (stay down obligation, Article...read more

Penny-pinching in digital music distribution

Business in the online sector has been subject to constant change – not only for copyright societies. In the second part of the interview, SUISA CEO Andreas Wegelin reports on the status quo and provides an outlook on the scenarios that are being discussed. Interview by guest author Silvano Cerutti

Penny-pinching in digital music distribution

Music is now consumed rather differently to how it was consumed 15 years ago: From the turnover of the Digital Service Providers, about 12 to 15 percent are allocated to authors, which results in royalties at a micro-penny -level per play. (Photo: LikeBerry)

Andreas Wegelin, let’s talk about proportions and size ratios. Streaming service providers such as Spotify, for example, pay composers micro-penny -amounts per play. If you extrapolate this, what is the percentage of the turnover?
Andreas Wegelin: If you only consider authors’ rights, that is about 12 to 15 percent of about 70% of the service provider’s total turnover. The rest is allocated to the recording, the producer, the artist. This roughly corresponds to the offline situation in Switzerland. Copyright for authors is governed by state-approved tariffs there. They are actually slightly lower. A monopoly thus does not bring about a better result for authors.

Why is there so little that comes together for the author? Without the author, the piece would not even exist for others to perform.
I completely agree with you. If a composer happens to be a good singer as well and thus performs his own songs, he gets more. But this is the same case for the offline sector. A singing author gets more from his record company than from us – because the producer provides the service provider with the music recording which can be played. It is not SUISA that does that but companies such as Sony, Universal etc. which therefore also hold the relevant market power.
Furthermore: Let’s compare the situation to the radio broadcasters: Radio addresses a multitude of listeners, streams one individual listener. If you break down the radio remuneration to listener levels, the amount is not much higher than that for streaming. A reason why streaming is even lower is that I nearly only have mainstream music on the radio. The selection of songs is therefore limited. In the case of streaming services, I also have niche repertoire. In other words (please don’t quote me on the figures), I have a “heavy rotation” on the radio with about 50 songs per month, and 1,000 songs on Spotify.

Can I assume that a service such as YouTube pays out to a similar extent as Spotify?
In the case of YouTube, one question needs to be asked which is difficult to answer: What do the 12 to 15 percent relate to? Spotify has subscription fees while YouTube only has advertising income: Is it thus 12 to 15% of the advertising revenue which has been generated in a specific country for a specific video during a specific period of time? And if there is no advertising shown on the video, is there no money, irrespective of how many thousands of clicks are shown in total?

With YouTube, you have the additional problem that everyone can upload everything without having to supply any rights information. How can you find out what belongs to whom?
YouTube’s approach is automation. This works to some extent, but there are also blatant mistakes with regards to the allocations. For such data volumes, however, it is only possible to do so by way of automation. For a total control, you would have to be able to track all sound files.

Does this mean, the future must be the upload filter?
There’s a huge debate on this topic at EU level. So far, the “safe harbor” principle has been applied in the EU, which said: A Digital Service Provider (DSP) is not responsible for the contents which are uploaded to their platforms. The regulation stems from 2002 and was intended to promote the development of the online data exchange. YouTube did not exist in those days. YouTube could then benefit from this regulation even though masses of protected contents are distributed via YouTube. In the meantime, the protection of the author has been enjoying greater importance again. YouTube, however, threatens now to block contents arguing it would be too complicated to provide for a settlement of the rights in each case. That way, certain contents would no longer be available and this would be a grave restriction of freedom of opinion.

Are there any alternatives?
You could introduce a statutory compensation claim for authors, similar to blank media levies for private copies. This would mean: YouTube is allowed to distribute contents but YouTube would have to pay for it by law. In the case of the blank media levy, the argumentation used to be: You cannot control what someone records onto a music cassette, so a blanket solution is required and it could be that you pay a remuneration of e.g. 5 Rappen for each blank medium per hour in favour of the authors. Something like this would also be possible for online usages but it is a topic that is highly controversial.

Which solution would be better for the authors?
For authors of our scale, a blanket arrangement would be better, for bigger rights holders, the right of interdiction currently in force would be better. It gives them enough power to negotiate with YouTube or Google directly. Google cannot just ignore them. We, however, had to first become active ourselves in order to speak with YouTube about a licence. That was also a reason for our Joint Venture and our approach to expand the repertoire we represent.

How long does it take to negotiate an agreement with a platform of such a magnitude?
Since we have been part of the Joint License and have been processing via Mint, we could shorten the duration. Depending on the provider, it lasts between one and eight months. And if you want to renew an agreement, you are looking at four to five months.

What kind of strategy does SUISA pursue in cases where agreement negotiations with a provider fail?
In such a case – it is rather rare, because, among reasonable business partners, you do find a solution – we must fight in court to get the recognition and the adequate remuneration for the use of the rights of our members.

How many DSPs are there in total?
Actually, there are too many (laughs). There are dozens. Of course, you start with the most important ones, i.e. the biggest. There are about 15. But Mint is planning to expand into other territories. In India, for example, the two big telecoms companies are also important music providers which results in new and different constellations.

I am a cooperative member of SUISA, may I see such agreements?
No. A provider wants to prevent competitors seeing their contracts. That is why there is always a confidentiality clause. SUISA cooperative members do, however, see what they get in the end. If they do not like this situation, they can always assign their rights to someone else. I doubt very much that they will be given access to such contracts there. That is a result of the competitive market.

In December 2019, it became known that Gema has bought a majority stake in Zebralution GmbH, a digital distributor. What does this development mean for SUISA?
Gema tries this way to be increasingly active in the business with data for the works of its members. By cooperating with a digital distributor, Gema can succeed in providing its members with 360-degree-service, which does not just include the management of copyright but also neighbouring rights. SUISA is also going to consider what kind of steps are sensible for a rather comprehensive service to its members in the digital music distribution sector.

Züri West has earned money with “I schänke dir mis Härz”, whereas “079” by Lo & Leduc has yielded much less, even though it is at least as successful.
That may well be the case. This difference does not just apply to Lo & Leduc but for all, worldwide, because music consumption is different to what it was 15 years ago. That is why concerts have become more important and that is why the entire broadcasting sector is so important because we still have relatively stable conditions there …

But?
The problem is that more and more advertising is moving towards the internet. Licensing fees for broadcasting rights depend on the turnover of the broadcaster, and that turnover mainly comes from advertising. The income is falling drastically because advertising is shifting more and more towards the internet.

A similar scenario as we had it in the newspaper sector.
Exactly. This is hard to manage. The next online agreements will need to focus more on that. It is actually very fascinating. And of course we do not always succeed immediately, sometimes it takes tough negotiations and, if necessary, even legal proceedings. We also had this situation in the 70ies and 80ies when the task at hand was to collect remuneration for cable retransmission. New developments and types of services for music keep popping up. We need to keep an eye on them and it is our exciting and rewarding task to negotiate remunerations on behalf of our members.

To the first part of the interview: “Brave new world”

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Switzerland finally has a new copyright law!Switzerland finally has a new copyright law! On 27 September 2019, both the National Council and the Council of States at last held a final vote approving the partial revision of the Swiss Federal Copyright Act, ending a process initiated in 2010 with a postulate by Géraldine Savary. It is now for the Federal Council to determine when the modernised Copyright Act will come into force – unless a referendum is successful. Read more
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  1. Rolf Hug says:

    Very interesting. Also to mention that the big publishing companies don’t play by the code of conduct and
    can get away with anything.

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Business in the online sector has been subject to constant change – not only for copyright societies. In the second part of the interview, SUISA CEO Andreas Wegelin reports on the status quo and provides an outlook on the scenarios that are being discussed. Interview by guest author Silvano Cerutti

Penny-pinching in digital music distribution

Music is now consumed rather differently to how it was consumed 15 years ago: From the turnover of the Digital Service Providers, about 12 to 15 percent are allocated to authors, which results in royalties at a micro-penny -level per play. (Photo: LikeBerry)

Andreas Wegelin, let’s talk about proportions and size ratios. Streaming service providers such as Spotify, for example, pay composers micro-penny -amounts per play. If you extrapolate this, what is the percentage of the turnover?
Andreas Wegelin: If you only consider authors’...read more

Switzerland finally has a new copyright law!

On 27 September 2019, both the National Council and the Council of States at last held a final vote approving the partial revision of the Swiss Federal Copyright Act, ending a process initiated in 2010 with a postulate by Géraldine Savary. It is now for the Federal Council to determine when the modernised Copyright Act will come into force – unless a referendum is successful. By Vincent Salvadé, Deputy CEO

Switzerland finally has a new copyright law!

On 16 September 2019, the National Council finally agreed to remove from the bill the disputed exception for the reception of radio and TV broadcasts in hotel rooms. This cleared the way for the two Houses to approve the revision on 27 September 2019. (Photo: Parliament Services, 3003 Bern)

At long last! The revised Copyright Act has been signed, sealed and delivered. The last differences between the National Council and the Council of States were eliminated on 16 September 2019 and the bill was adopted in a final vote at the end of the autumn parliamentary session. A long process has thus come to an end, with a satisfactory outcome for music authors and publishers.

A compromise and intense debates

A short look back: in 2012, Federal Councilor Simonetta Sommaruga created the working group AGUR12 which was instructed to prepare proposals for the revision of the Federal Copyright Act. Representing all stakeholders (authors, users of works, consumers, etc.), AGUR12 made a series of proposals, embodied in a compromise solution at the end of 2013. Unfortunately, the bill submitted by the Federal Council in 2015 deviated from this compromise solution.

In the face of the heavy criticism expressed during the consultation procedure, the Federal Council reversed its position and submitted a new bill to Parliament at the end of 2017, this time based entirely on the AGUR12 compromise. After intense debate, both Houses finally decided to espouse the compromise, even if that meant deferring consideration of a number of new issues (such as the protection of press publishers and journalists).

SUISA actively involved in the revision

SUISA accompanied the legislative process throughout the entire seven years. Firstly, by participating actively in the work of AGUR12 as part of the Suisseculture delegation. And then, by informing Members of Parliament during committee hearings, and through letters, position papers and argumentation.

With what outcome? Overall, copyright protection has been increased and modernised thanks to new anti-piracy measures and improvements in rights management in particular. No doubt one could have gone further on certain points. But a compromise is a compromise …

Finish one revision, start the next

It would be wrong to lower our guard. The “Pirate Party” has now launched a referendum against the revised Copyright Act. Moreover, the last question debated in Parliament was whether hotels which offer their guests the means to watch television, play films and listen to music in their rooms should be exempted from their obligations towards authors. The National Council eventually shelved this idea, but the debate shows that creators’ vested rights are regularly subject to attack. We must ensure we avoid … a re-revision of the revision of the law to the detriment of authors and publishers! Everything is an eternal recurrence …

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Adapting federal copyright law to digital usageAdapting federal copyright law to digital usage On 26 March 2019, after months of protest on the streets and in the Internet community, the European Parliament approved the proposal for a new EU Directive on Copyright in the Digital Single Market. Revision of copyright law in Switzerland and the EU: where are the similarities, where are the differences? Read more
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Leave a Reply

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On 27 September 2019, both the National Council and the Council of States at last held a final vote approving the partial revision of the Swiss Federal Copyright Act, ending a process initiated in 2010 with a postulate by Géraldine Savary. It is now for the Federal Council to determine when the modernised Copyright Act will come into force – unless a referendum is successful. By Vincent Salvadé, Deputy CEO

Switzerland finally has a new copyright law!

On 16 September 2019, the National Council finally agreed to remove from the bill the disputed exception for the reception of radio and TV broadcasts in hotel rooms. This cleared the way for the two Houses to approve the revision on 27 September 2019. (Photo: Parliament Services, 3003 Bern)

At long last! The revised Copyright Act has been signed, sealed and delivered. The...read more

Sampling and Remixes

The articles about arrangements in the “Good to know” series have so far focused on “conventional” arrangements of musical works. Sampling and remixes are two additional and specific forms of arrangement. What rights need to be secured when existing recordings are used to produce a new work? What agreements have to be contracted? Text by Claudia Kempf and Michael Wohlgemuth

Sampling and Remixes

From the copyright point of view, remixes and sampling are specific forms of arrangement. (Photo: Tabea Hüberli)

Sound samplings come in many different forms and techniques. But they all have one thing in common: they incorporate parts of a musical recording into a new work. This regularly raises the question whether such parts of works or samples are protected by copyright or – especially in the case of very short sound sequences – whether they may be used freely.

In the case of a remix, an existing production is taken and re-arranged and re-mixed. This may involve taking apart a whole work and putting it together again with the addition of new elements. Theoretically, the degree of re-arrangement in a remix may range from a simple cover version to a completely new arrangement. As a rule, a remix is simply an arrangement. Remixes generally keep a work’s existing title and add a tag which refers either to the form of use (radio edit / extended club version, or similar) or the name of the remixer (generally a well-known DJ).

By contrast with conventional arrangements, in addition to using an existing work to create a derived work or arrangement, samples and remixes also use an existing sound recording. Therefore, one must distinguish between two categories of rights: the rights of the authors of the original work on the one hand (copyrights), and the rights of the performing artists and producers of the recording on the other (neighbouring rights).

Securing the copyrights

In principle, copyright law protects entire works of music, as well as parts of works which meet the qualifying criteria, provided the term of protection of 70 years (after the death of the last deceased author) has not yet expired. The melody, a solo or other elements of a work can therefore be protected and may not be freely used if they qualify as a work of an individual character. This must be determined on a case-by-case basis. The more marked the characteristics of the sampled element, the less likely you will be able to use that element for free. The notion that two bars, nine notes or two seconds of music can be used for free is only a rumour since, regrettably, there is no clear delimitation defining when a part of a work has an individual character.

So if a protected part of a third-party composition is sampled and incorporated into a new work, and the part concerned has an individual character, the arrangement rights in the original work must be secured from the publisher or, in the case of unpublished works, the author. This is done through a sampling agreement or an arrangement licence.

In the case of a remix, a distinction is made depending on who creates the remix: the author of the original work or a third party. For copyright purposes, the original author is essentially free to create remixes of his own work. If, however, the original work was composed by several people, he will need permission from his co-authors to create a remix; and if the original work was published by a label, he will need the permission of the label to use the sound recording (neighbouring rights).

If the remix was created by a third party, a distinction must be made depending on whether the remix was commissioned or made on the remixer’s own initiative. In the latter case, the rights must be secured from the author or his publisher by means of an arrangement license (often referred to as a “remix agreement”).

Securing neighbouring rights

Since sampling and remixes borrow from pre-existing sound recordings, the rights in the recording and the artists’ performances must also be secured. As a rule, the rights of the performing artists are assigned to the record producer or the label when the production is made. These rights are also limited by a term of protection. Currently, the term of protection for recordings in Switzerland is 50 years after the first publication, provided that the recording is actually published for the first time within 50 years of the recording date. Otherwise, the recording date is decisive for the expiry of the term of protection. In the EU, however, the term of protection is 70 years. In the framework of the revision of the Copyright Act currently before the Swiss Parliament, it has been proposed to increase the term of protection under Swiss law in line with that of the European Union.

If the term of protection is still valid, the rights in the recording have to be secured. The rumour that “two seconds are fair use” is fundamentally false. However, there is controversy as to whether recording protection applies to the shortest sound sequences. The European Court of Justice is currently examining this very matter in “Kraftwerk vs. Pelham: Metall auf Metall”.

The rights in a recording are normally held by the record producer, i.e. by the party who bears the economic risk of the recording. The producer can be an artist himself (own productions), a record company (“label”) or a broadcasting company, and the corresponding rights must be secured accordingly. Colloquially, the rights in the recordings are often referred to as “master rights”.

NB. A work’s term of protection may have expired while the recording is still protected. In this case, the rights in the work no longer need to be secured, but the rights in the recording still do. This would also apply to recordings of natural sounds and animal cries, for example, which are not protected by copyright. In this case, the recording, as the economic output of the producer, is protected just the same.

Main points of a sampling agreement

Depending on the circumstances, the sampling agreement (also referred to as a “sample clearance agreement”) regulates the rights in a work and its recording. When these rights are all held by the same party, a single agreement can be made. As a rule, however, two agreements will be concluded: one with the author or his publisher, and the other with the record label. The following points must be covered:

  • Name and address of the contracting parties (pseudonyms if applicable)
  • Subject of agreement: work and/or recording. Duration of the sample. How exactly may the sample be used? Can it be altered?
  • Scope of licence: what rights are granted? Is the licence exclusive or non-exclusive? For which territory and for how long?
  • Rights splitting/licence shares: in most cases, rights are determined by the shares of the participants in the work. The authors of a new work and the rightholders of the original work are all entitled to a share in the new work. The sampling agreement must in any event indicate the splitting. In addition to this rule which depends on the economic success of the new production, the original rightholders may demand a lump-sum fee for the arrangement right. Moreover, the royalty for the use of the recording usually takes the form of a percentage per sold copy of the new production, or of a lump-sum fee.
  • Distribution timetable: when and how often are rights settled?
  • Warranties: the rightholder must warranty that he holds all the relevant rights in the sample.
  • Place, date, signature of rightholder
  • Governing law and jurisdiction

Main points of a remix agreement

A remix agreement must specify whether the remix is commissioned or the remixer is acting on his own initiative and applying for a remix licence. Depending on the premises, the agreements can be quite different. Moreover, in the case of a remix and depending on the circumstances, the rights in the work and the recording also have to be regulated. When these rights are all held by the same party, a single agreement can be concluded. As a rule, however, two agreements have to be made: one with the author or publisher, and the other with the performing artist or record label. The following points must be covered:

  • Name and address of the contracting parties (pseudonyms if applicable)
  • Subject of agreement: work and/or recording. Duration. Title of the remix. Credits.
  • Production terms: delivery date, special requirements (if commissioned)
  • Scope of licence: what rights are granted? Is the licence exclusive or non-exclusive? For which territory and how long?
  • Fees: as a rule, a lump-sum fee is agreed, more rarely a participation in sales and other licence fees such as sync fees.
  • Rights splitting: as the arranger of the newly created work, the remixer is usually (but not necessarily) given a share. Accordingly, the arrangement percentage indicated in SUISA’s Distribution Rules is applicable (see article “Arranging works protected by copyright”). In rare cases, if, for example, the remixer’s contribution to the new work is very significant, he will be granted co-authorship status in the remix. In these cases his participation may also be higher.
  • Distribution timetable: when and how often are rights settled?
  • Place, date, signature of rightholder
  • Governing law and jurisdiction

When does a remix or a work containing samples have to be registered with SUISA?

When filing an application to register a work with samples excerpted from a protected work, the sampling agreement (which does not have to be expressly designated as such) must be enclosed or – in the case of online registration – uploaded. The rights splitting must be clearly indicated in the sampling agreement. Otherwise, the new work cannot be registered.

NB. In contrast to conventional arrangements where the arranger is registered as such for the new work, it is general practice for works with samples to list all the authors as co-authors of the work. The authors and, if applicable, publishers of the work from which the samples are taken thus become co-rightholders of the new work. When applying to register a work, it is important to list all rightholders of the work from which the samples are excerpted or at least to clearly state which original work was sampled.

When filing an application to register a remix of a protected work, the remix agreement (which does not have to be expressly designated as such) must be enclosed or – in the case of online registration – uploaded. The remixer will only be granted a share of the earnings if the remix agreement clearly indicates that he is entitled to a share. If no percentage is specified, the remixer will be entitled to the share allotted to the arranger under the Distribution Rules. If no reference is made to any share, SUISA will record the name of the remixer in the original version with the comment that the remix is approved but the remixer is not entitled to any share. If a publishing house registers a remix of a work which it published in the original, SUISA waives the need for a remix agreement since the publisher can always secure the arrangement rights directly from its author.

Summary

In addition to the arrangement rights (copyright), remixes and sampling always also affect neighbouring rights, since they use existing recordings (containing the rights of performing artists). The rights in the recording may be held by the same rightholder as the arrangement rights (author or publisher), or by a third party (often a record company or label), and must be secured even for very short sequences. The more rightholders involved, the earlier one should start enquiring and securing the rights. Likewise, remix and sampling permissions should always be recorded as written agreements (which also facilitates registration of the works with SUISA) and should clearly indicate how rights are split.

SUISA assists its members in locating the rightholders. In the case of published works, it provides the publisher’s particulars so that he can be contacted directly. In the case of unpublished works, it forwards enquiries to the authors or their heirs. Enquiries should be addressed to: publisher (at) suisa (dot) ch Details of the producers of a recording can be found under the ℗ note on the recording itself.

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Arranging works protected by copyrightArranging works protected by copyright Musical works in the public domain can be arranged at will. But works which are still protected by copyright, i.e. whose author has been dead for less than 70 years, cannot be arranged without permission from the rightholders. How does one go about obtaining such permission, and what points must be regulated in the permission in order to be able to register an arrangement with SUISA? Read more
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The articles about arrangements in the “Good to know” series have so far focused on “conventional” arrangements of musical works. Sampling and remixes are two additional and specific forms of arrangement. What rights need to be secured when existing recordings are used to produce a new work? What agreements have to be contracted? Text by Claudia Kempf and Michael Wohlgemuth

Sampling and Remixes

From the copyright point of view, remixes and sampling are specific forms of arrangement. (Photo: Tabea Hüberli)

Sound samplings come in many different forms and techniques. But they all have one thing in common: they incorporate parts of a musical recording into a new work. This regularly raises the question whether such parts of works or samples are protected by copyright or – especially in the case of very short sound sequences –...read more

Adapting federal copyright law to digital usage

On 26 March 2019, after months of protest on the streets and in the Internet community, the European Parliament approved the proposal for a new EU Directive on Copyright in the Digital Single Market. Revision of copyright law in Switzerland and the EU: where are the similarities, where are the differences? Text by Andreas Wegelin

Adapting federal copyright law to digital usage

In the EU member states, the reform of copyright law has driven mainly young internet users to protest on the internet and in the streets. Fired up by social media platforms, it is alleged that freedom of expression was seriously at risk because of the new copyright. (Photo: Emmanuele Contini / NurPhoto via Getty Images)

On 12 March 2019, a few days before the decision of the EU Parliament, the Council of States referred the bill for the revision of Swiss copyright law back to the advisory Committee for Science, Education and Culture (CSEC) with instructions to take into account current developments in the EU.

Despite the carefully balanced compromise fostered in the Working Group on Copyright (AGUR) by Federal Councillor Sommaruga, Minister of Justice at the time, the copyright law revision is now threatened by further delays, not to mention the risk that special interests, which had been set aside as part of the compromise, may surface anew.

The main revisions in the EU Directive

The European Directive contains two fundamental improvements in copyright protection which are particularly controversial:

the liability of platform providers for the sharing of content uploaded by consumers
This provision mainly concerns the major social media platforms (Google, Apple, Facebook and Amazon, or GAFA for short). Under existing EU law, platform operators can argue that they are merely service providers and are not responsible for the content made available on their platforms. This position is rooted in the EU’s e-commerce directive of 2000, which had limited the liability of service providers (under what was termed the “safe harbour” principle) with a view to stimulating the digital economy.

In the meantime, it has been rightly recognised that the uploading of protected content by private persons infringes copyrights. Even providers such as Google have sought contact with major rights owners and collecting societies because of Youtube, but only offered financial compensation on a “voluntary” contractual basis. It is precisely because content-sharing platforms like Youtube make available practically all existing content that they are so popular with growing numbers of music and film enthusiasts.

Article 17 of the new Directive (Article 13 of the original draft) provides that EU Member States must enact rules stipulating that service providers are liable for the content shared (uploaded) on their platforms.

As a result, GAFAs will be obliged either to conclude licence agreements with all rightholders, or to introduce technical mechanisms (upload filters) to prevent altogether the uploading of protected content. It was this latter prospect which inflamed the Internet community and led to demonstrations in front of the EU Parliament against what was feared would lead to drastic restrictions on the freedom of expression and artistic freedom.

Protecting press publishers from the publication of their articles on internet platforms
Article 15 (formerly 11) of the new Directive also proved very controversial in the parliamentary debates. The proposed neighbouring rights protection was designed to grant publishers a participation in the dissemination of their content, e.g. on Google News. Interestingly, however, the simple reference to Google News can serve to increase a press publisher’s reach, and news per se cannot be protected by copyright. Similar regulations in individual EU countries have proved ineffective, particularly because major publishers prefer to benefit from free advertising on Google News rather than threaten Google News with a licence claim and risk being ignored.

The key points of the Swiss revision

Different legal situation compared to the EU
The Federal Copyright Act (FCA) and Switzerland’s legal situation are considerably different to EU law and the copyright legislation of the individual EU Member States. The EU Directive of 2000 on the single market is not applicable in Switzerland. GAFAs cannot invoke the “safe harbour” principle here. In principle, platform operators are already liable for the content shared by their users, but enforcing a liability claim is a complex and hazardous process. Switzerland’s copyright legislation also recognises the principle that, relying on private copying rules, consumers are entitled to use content from the Internet regardless whether or not the source is licensed to make it available. This liberal approach reflects the acknowledgement that only the provider can reasonably license the mass consumption of content from the Internet, certainly not the consumer.

The AGUR compromise
The AGUR compromise was adopted in March 2017 in the context of the Swiss legal framework described above. Relying on that compromise – which contained some grey areas disadvantageous to authors – the Federal Council submitted a revised bill to Parliament. The bill contained a “stay down” obligation designed to reinforce the liability of online content-sharing service providers: once content is qualified as illegal, providers must keep it off their platforms permanently. In addition to other important improvements for authors, which we have already reported elsewhere, the Federal Council’s proposal contains changes for digitisation, such as a “scientific” exception or limitation for text and data mining, and licensing simplifications through extended collective licensing. The last two proposals are also part of the recently adopted EU Directive (Articles 4 and 12).

Remuneration for journalists and neighbouring rights for publishers
On 12 February 2019, the Committee of the Council of States proposed to introduce an entitlement to remuneration for journalists and neighbouring rights protection for publishers whose work is used on Internet platforms. The introduction of an entitlement to remuneration for journalists would certainly be welcome, and might even suffice if journalists, as the original creators, would involve their publishers in the claims. This would avoid having to introduce a controversial neighbouring right with the dubious effect described above.

Exception for libraries
At the last minute, the Committee of the Council of States also proposed to exempt public libraries from the obligation to pay remuneration for the rental of works – a provision in force since 1993. Public libraries lobbied actively for this exemption; under the existing tariff, libraries do not have to pay a fee on the rental of works provided they charge an annual fee rather than individual fees when they rent out works. Whatever the case, the truth of the matter is that libraries make books, DVDs, CDs or music streaming available to their users for a small fee, in competition with the markets concerned.

Exception for reception in hotel and guest rooms
As with public libraries, the exception for guest rooms deviates from the AGUR compromise to the detriment of authors. Intensive lobbying by the hospitality industry had already led the National Council to propose an exception for the reception of programmes in hotel rooms and holiday flats in December 2018. Moreover, the exception was extended to rooms in institutions and prison cells. This demand also stems from a tariff dispute with the collecting societies. In 2017, the Federal Supreme Court ruled that the use of works in such premises did not qualify as private use if the hotelier or landlord arranges reception and makes the corresponding equipment available. In this case, both are acting with the intent of making a profit, i.e. the provision of reception facilities for protected content is a sales argument for landlords and influences their turnover. Artists should not be required to subsidise the hospitality industry through this exception; their situation would then be significantly worse than under existing copyright law.

Switzerland needs updated copyright legislation now – without any new exceptions!

Switzerland has been struggling to modernise its copyright law since 2010. The AGUR compromise made some progress in adapting the law to the contemporary environment. Individual interests that run counter to this modernisation are liable to emerge in parliamentary debates and may even lead to a worsening in the existing law. This must not be allowed to happen. The situation is somewhat different for journalists: the re-use of press products on the Internet must be seriously examined when the law is updated. Maybe the time is not yet ripe. This was also acknowledged by the Committee of the Council of States in its second consultation on copyright law on 29 April, and it called on the Federal Council, by way of a postulate, to examine the development of copyright law in Europe.

In its 2019 summer session, Parliament would be well-advised to adopt the copyright law revision on the basis of the AGUR compromise without any new exceptions for public libraries or the hospitality industry.

Cautious take-over and adaptation of the EU Directive to Swiss specificities

The new EU Directive could nevertheless serve as a model for additional changes to Swiss law in the future. As mentioned above, the CSEC of the Council of States has asked the Federal Council to produce a report on the situation of journalists and newspaper publishers in particular; in this context, the liability of online content-sharing service providers should be examined more closely. What is more, the sharing or uploading of protected content on the Internet is even less controllable than private copying. The EU Directive therefore rightly establishes a liability on the part of GAFAs, because they are the ones who make sharing possible and attractive in the first place. However, it will be difficult for GAFAs to license each uploaded contribution from the individual rightholders.

One option might be to oblige the platforms to remunerate rightholders on a lump-sum basis for the sharing of content on their platforms. Anything demanding unreasonable technical effort to control should generally be allowed; on the other hand, online content-sharing service providers would be obliged to compensate authors and other rightholders via the collecting societies under a legal licence similar to private copying. In the next few years, the Swiss Parliament will have to revisit these issues again in more depth with a view to implementing the EU Directive across the borders.

Post-revision is pre-revision

Swiss copyright legislation is likely to remain a work in progress for some time to come. Digitisation, the easy global exchange of protected works on the Internet, and technological advances such as artificial intelligence or machine learning mean that legal standards will have to be reviewed again. The current revision of Swiss copyright law, hopefully to be completed in June 2019 based on the AGUR compromise, is not final but merely the prelude to the next revision.

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On 26 March 2019, after months of protest on the streets and in the Internet community, the European Parliament approved the proposal for a new EU Directive on Copyright in the Digital Single Market. Revision of copyright law in Switzerland and the EU: where are the similarities, where are the differences? Text by Andreas Wegelin

Adapting federal copyright law to digital usage

In the EU member states, the reform of copyright law has driven mainly young internet users to protest on the internet and in the streets. Fired up by social media platforms, it is alleged that freedom of expression was seriously at risk because of the new copyright. (Photo: Emmanuele Contini / NurPhoto via Getty Images)

On 12 March 2019, a few days before the decision of the EU Parliament, the Council of States referred the bill for the...read more

Copyright law revision: compromise is the key to success – no exceptions for hotel rooms

The revision of the existing Copyright Act is entering the decisive phase this year. After seven years’ preparatory work, parliamentary debates have now started. The revised act could come into force on 1.1.2020 if both federal houses respect the delicate compromise. Text by Andreas Wegelin

Copyright law revision: compromise is the key to success – no exceptions for hotel rooms

The jurisprudence in Switzerland and Europe is clear: when a hotel receives radio or television broadcasts and retransmits them into its guest rooms, it is a use which is relevant for copyright purposes. (Photo: Piovesempre / iStock)

The long road to a minor partial revision started nine years’ ago: in 2010, State Councillor Géraldine Savary asked the Federal Council to propose solutions to prevent the use of illegal online offers. The Federal Council rejected the request arguing that authors could simply give more concerts to make up for the loss in earnings caused by the slump in CD sales. This answer outraged musicians, and rightly so: not all composers can perform their own works.

In summer 2012, Federal Councillor Sommaruga responded to the protests by creating a working group to prepare proposals for the revision of the Copyright Act. AGUR12, as the working group was called, submitted its recommendations in December 2013. Based on those recommendations and on a wealth of additional unacceptable proposals, the Federal Council produced a preliminary bill in 2015 which met with widespread criticism in the consultation process. FC Sommaruga was obliged to reconvene the AGUR in autumn 2016. AGUR12 II concluded its work in March 2017 with a compromise. At the end of 2017, relying largely upon this compromise, the Federal Council submitted a revised bill to Parliament.

Main points of the revised bill

The relevant key elements of the compromise for musical authors are:

  • Obligation for the hosting provider to remove illegal content and to prevent further uploading of such content (Article 39d); provision for processing personal data to facilitate prosecution of illegal uploading of protected music (Article 77i). Additional demands by authors and producers, e.g. to block access to illegal offers on the Internet, met with strong resistance from consumers and network operators, and were disregarded in the compromise. In this context, one should also consider that such blocking in the musical field would in any event have come ten years too late. Thanks to a wide range of affordable, legal and easy-to-use music streaming services, file-sharing networks and illegal services in the musical field have been greatly reduced.
  • SUISA’s right to information from users in tariff negotiations and accelerated procedure for the approval of copyright tariffs (Articles 51 and 74(2))
  • Extended collective licence (Article 43a): this provision, for instance, enables users to obtain a licence from the collecting societies for publications from archives.

Remuneration for video on demand – unnecessary for composers

The Federal Council also proposed to introduce a remuneration claim for music with regard to video on demand (Articles 13a and 35a). Music creators do not, however, need this: Article 10(2) already entitles them to authorise or refuse the use of their works (in this case, film music). SUISA has already concluded licence agreements for VoD services with all main providers. No new remuneration claims are needed. The existing legislation is adequate.

The VoD remuneration claim was primarily designed to enable Swiss filmmakers to receive fair compensation when their films are viewed on new platforms like Netflix. This would reduce the “value gap” that filmmakers suffer because they participate neither in the direct “pay per view” revenue nor in the platforms’ indirect revenues from advertising and the sale of usage data. Conversely to film music composers who are well organised in rights’ management organisations worldwide, Swiss filmmakers have very limited bargaining power and are therefore dependent on this new remuneration claim.

Against the recommendations of AGUR12 II, the Federal Council extended this claim to music authors who, as mentioned above, do not need this special entitlement. Regrettably, the National Council did not follow our reasoning in the detailed discussion of the law in December 2018 and failed to provide for an exception for music authors. The last hope now lies with the Council of States, which will probably deal with the subject in its March session.

New exemption from the obligation to pay remuneration for radio and TV reception in hotel rooms?

In December 2018, the National Council decided, via the back door so to speak, to follow the parliamentary initiative of Valais FDP MP Nantermod and add a new clause in Article 19(1)(d) FCA providing that the retransmission of radio and TV broadcasts, but also of music or video channels, on demand in hotel rooms, rented holiday apartments, hospital rooms and prison cells, are exempted from copyright fees. As a result, authors would be in a worse position than under the existing legislation, and the revision of the law would work largely to their disadvantage.

What is at stake? If a hotel retransmits radio or TV broadcasts to its guest rooms, the retransmission qualifies as a “rebroadcast” within the meaning of Article 10(2)(e) FCA. This was decided by the Federal Supreme Court in 2017. The providers of TV sets and audio players in guest rooms are hoteliers, landlords of holiday apartments, or hospital operators. All of them operate for profit. Such usage does not, therefore, qualify as private use. The jurisprudence in Switzerland and Europe is clear: this is a relevant usage under copyright law.

The decisions are based on the Bern Convention, the most important international treaty in copyright law, and on other international treaties such as the WCT and the WPPT. Switzerland cannot disregard these treaties. If it did, it would expose itself to sanctions because the obligations under the Bern Convention are also enshrined in the WTO Agreement on the Protection of Intellectual Property (TRIPS). To avoid sanctions if Switzerland were to incorporate this new exception into its law, the exception could only apply to the works of Swiss authors – a totally unacceptable discrimination.

“Hotel rooms would hardly be cheaper if the small copyright fee was eliminated.”

What does it cost hoteliers today? Fees are calculated based on the surface area covered by the TV/audio usage. Up to 1000 m2, the monthly licence fee is CHF 38. Hotels with up to 50 rooms of 20m2 each pay less than CHF 1 per room per month. The rate is slightly higher for larger areas. Hotels with 100 rooms pay CHF 91.80, which is still less than CHF 1 per room per month. The cost for hotels is therefore modest. However, all things being equal, the shortfall for authors and other rightholders would add up to some CHF 1 million per year.

Hoteliers pay their other suppliers for all other services delivered to their hotels. These range from electricity and cleaning to soap in the bathrooms. These goods and services are not provided free of charge – they are part of the hotel supply chain. Hoteliers run their hotels for profit, and in-room entertainment contributes to the price of a room and, therefore, to the added value of the hotel. Why should hoteliers who offer this service to their guests not have to pay the music and film rightholders? Exempting hotel rooms from the copyright remuneration obligation would discriminate against authors and other rightholders compared with other suppliers. And consumers would not even benefit from the exemption because hotel rooms would hardly be cheaper if the small copyright fee was eliminated.

The compromise and the FCA revision both at jeopardy

As mentioned above, the compromise bill for the revision of copyright law put together by AGUR12 II and the Federal Council is now on the finishing straight. If Parliament were to significantly worsen authors’ situation by introducing the hotel room exception, authors would feel slighted and might present further demands for revision. With the risk that no new law is adopted and nearly nine years’ revision efforts will all have been for nothing in the end.

If the revision were to deprive them of the right to allow their works to be rebroadcast in hotel rooms against remuneration, music authors would probably be better off under the existing law.

It is essential that we defend the delicate compromise in the coming months and impress on the Councils that no further changes to the detriment of authors are admissible.

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The revision of the existing Copyright Act is entering the decisive phase this year. After seven years’ preparatory work, parliamentary debates have now started. The revised act could come into force on 1.1.2020 if both federal houses respect the delicate compromise. Text by Andreas Wegelin

Copyright law revision: compromise is the key to success – no exceptions for hotel rooms

The jurisprudence in Switzerland and Europe is clear: when a hotel receives radio or television broadcasts and retransmits them into its guest rooms, it is a use which is relevant for copyright purposes. (Photo: Piovesempre / iStock)

The long road to a minor partial revision started nine years’ ago: in 2010, State Councillor Géraldine Savary asked the Federal Council to propose solutions to prevent the use of illegal online offers. The Federal Council rejected the request arguing that authors could simply give more concerts to make up for...read more

When SUISA does politics

SUISA and the other Swiss rights administration societies have never been as actively involved in politics as in 2018. But is it really justified for SUISA to become engaged in politics? By Vincent Salvadé, Deputy CEO

When SUISA does politics

SUISA’s political work is geared to creating a favourable framework for Swiss musical creators in terms of rights management. (Photo: Trybex / Shutterstock.com)

The revision of copyright law certainly has something to do with SUISA’s political engagement. But the rights administration societies have also taken a stand on numerous other issues: the “No Billag” initiative, gambling legislation, revision of telecommunications law, various parliamentary motions and initiatives, etc. Moreover, the societies regularly respond to consultation procedures on a broad range of legislative proposals. This shows that music, and culture in general, have become ubiquitous in our society. Music and culture are multi-faceted and as such are affected by a great number of political issues.

But is it really justified for SUISA to become engaged in politics? Yes. When we act, we do so without partisan labels, motivated solely by our members’ interests. Rights management can rarely be dissociated from politics.

“Generally speaking, our political actions are always aimed at achieving a favourable legal framework for rights management.”

In recent months, SUISA’s tariff negotiations have triggered two parliamentary interventions in Bern: first, in an attempt to counter our supplementary common tariff 3a, which had been confirmed by the Federal Supreme Court at the end of 2017, National Councilor Philippe Nantermod filed a parliamentary initiative demanding that licence fees be abolished for hotel rooms and the like; and second, National Councilor Martin Candinas submitted a motion proposing to disregard State subsidies to local radio stations in peripheral regions in the copyright calculation basis, although the matter has already been decided to the contrary on several occasions by the authorities responsible for approving the tariffs. In both cases, politics were the means chosen to try to defeat what we have struggled to achieve through our rights management activities.

Generally speaking, our political actions are always designed to foster a favourable legal framework for rights management. That is just as true for the revision of copyright law as it was earlier this year in our stand against the “No Billag” initiative: both were driven by the same motivation. Recently, we intervened to ensure that the revision of the telecommunications legislation would not jeopardise a balanced solution for authors’ rights with regard to replay TV.

Such political action requires major investment in terms of argumentation and persuasion. But it has proved worthwhile: on 13 June 2018, the Council of States rejected the Candinas motion (as well as the alternative proposed by the Federal Council) by 22 votes to 21. Would the outcome have been the same if the musical world had not mobilised? SUISA therefore intends to continue resolutely on this path and pursue its active political engagement, in particular against the parliamentary initiative of National Councilor Nantermod.

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SUISA and the other Swiss rights administration societies have never been as actively involved in politics as in 2018. But is it really justified for SUISA to become engaged in politics? By Vincent Salvadé, Deputy CEO

When SUISA does politics

SUISA’s political work is geared to creating a favourable framework for Swiss musical creators in terms of rights management. (Photo: Trybex / Shutterstock.com)

The revision of copyright law certainly has something to do with SUISA’s political engagement. But the rights administration societies have also taken a stand on numerous other issues: the “No Billag” initiative, gambling legislation, revision of telecommunications law, various parliamentary motions and initiatives, etc. Moreover, the societies regularly respond to consultation procedures on a broad range of legislative proposals. This shows that music, and culture in general, have become ubiquitous in our society. Music...read more

Arrangement of works in the public domain

Before you start arranging musical works that are not protected by copyright, it is worth being aware of the legal pitfalls in order to avoid costly stumbles. Text by Ernst Meier and Claudia Kempf

Arrangement of works in the public domain

An arrangement is when a new work is created using an existing work. (Photo: Tabea Hüberli)

Seeking inspiration from others, arranging existing works for different instrumentation, incorporating all or part of existing compositions into new works … these are age-old practices.

What pitfalls have to be avoided when you undertake a musical arrangement? – In a new series of articles to be published on the SUISAblog and in SUISAinfo, we shall try to shed some light on this topic. Initially, we shall examine the arrangement of works in the public domain, i.e. works that are no longer protected by copyright since their authors have been dead for more than 70 years.

What is an arrangement?

According to the Copyright Act, an arrangement is a “derived” (in German, literally, a “second-hand”) work. For an arrangement to qualify for copyright protection, it must satisfy the same requirements as a “work”, in other words: arrangements which are deemed artistic creations of the mind of the arranger are protected by copyright in the same way as an autonomous work. In the case of an arrangement, the artistic creation consists in the recognisable transformation, changing, or extension, of the musical substance of an existing work.

An arrangement is when a new work is created using an existing work in such a way that the latter remains recognisable with its individual character. The newly created element must, however, also have an individual character. Typical examples of arrangements are works orchestrated for different instruments, or lyrics translated into another language.

SUISA’s Distribution Rules (in German) have a section (1.1.3.5) that lists a whole series of works that do not qualify as arrangements for copyright protection purposes. In practice, this list has proven itself repeatedly. The following modifications do not qualify as arrangements:

  • adding dynamic or agogic accents;
  • adding musical phrasing symbols;
  • entering finger positions (fingering);
  • registrations for organs or other keyboard instruments;
  • flourishes;
  • translating an old musical notation style into a style in use today;
  • correcting clerical mistakes in the original and similar changes;
  • transferring music into other keys or pitches (transpositions);
  • editing out individual voices;
  • exchanging or doubling voices;
  • adding purely parallel voices;
  • allocating existing voices to other instruments (simple transcription).

Arranging works in the public domain and registering them with SUISA

Musical works which are not protected by copyright can be freely arranged and altered – no consent is necessary. To register an arrangement of a work in the public domain, you must send SUISA a copy of the new work together with the existing work, so that the music department can establish copyrightability. This applies to works whose authors are unknown or have been dead for at least 70 years. This also applies to works that have been handed down by folklore and are considered traditional.

When it receives an arrangement, SUISA’s music department verifies whether it satisfies the criteria for protection by copyright. This is always done by comparing the original to the arranged version. The musical quality of the submitted piece or movement is unimportant at this stage.

What types of arrangements are there, and what is the arranger’s share of the remuneration?

In its appreciation, SUISA distinguishes between the five following types of arrangement:

(Graphics: Crafft Communication)

1. Normal arrangement

The “normal” case (representing about 90% of all applications) is an arrangement in the strict sense of the word. A popular melody is arranged by adding voices or instruments for a specific ensemble or group (e.g. mixed choir, string quartet, orchestra, Big Band, etc.). The melody or main voice is taken over exactly, only the arrangement is new.

In this case, the arranger’s share is 15% (for works with lyrics) or 20% (works without lyrics).

Normal arrangement

2. Co-composition

Here the unprotected melody is not the upper voice; it is hidden in the musical structure. In this particular case (e.g. choir and organ music), the arranger’s work is of higher value since he has to compose his own upper or main voice and the existing music has to be embedded into the piece with a contrapuntal technique.

The arranger’s share in this type of work is 50% of the composer’s share.

Co-composition

3. Reconstruction

An original work is interrupted in one or several places, or left unfinished by the composer (or lost in handing down), and is then finished by the arranger.

The arranger’s share in this case is 50% of the composer’s share.

Co-composition

4. Complex jazz versions with changing soloists

The piece starts with a short presentation of the unprotected original melody. Then, a succession of soloists or “registers” (saxophone, trumpets, piano, drums) take up the melody with improvised figurations; these make up the greater portion of the work. Visually this is illustrated by the fact that the individual soloists or “registers” stand up for their solos. At the end, the original melody is often repeated all together.

In this type of work, the arranger’s share is 50% or 100% of the composer’s share, depending on the length and importance of the solos.

Complex jazz versions with changing soloists

5. Sets of variations

Variations on historic musical themes (e.g. Diabelli, Paganini or Gershwin variations) are typical examples of compositions where the original takes backstage to the variation. The starting theme is merely a pretext for a completely new work. It follows, therefore, that the creator of the variation is entitled to the full remuneration. For example: “Diabelli variations by Beethoven” etc.

The arranger’s share in this type of work is 100% of the composer’s share.

Sets of variations

What does public domain (“domaine public”) mean?
For further information on the protection period for works we refer you to the article “Erstmals seit 20 Jahren werden wieder Werke gemeinfrei” (article available in German, French and Italian, PDF) in the SUISAinfo edition.
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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.

Before you start arranging musical works that are not protected by copyright, it is worth being aware of the legal pitfalls in order to avoid costly stumbles. Text by Ernst Meier and Claudia Kempf

Arrangement of works in the public domain

An arrangement is when a new work is created using an existing work. (Photo: Tabea Hüberli)

Seeking inspiration from others, arranging existing works for different instrumentation, incorporating all or part of existing compositions into new works … these are age-old practices.

What pitfalls have to be avoided when you undertake a musical arrangement? – In a new series of articles to be published on the SUISAblog and in SUISAinfo, we shall try to shed some light on this topic. Initially, we shall examine the arrangement of works in the public domain, i.e. works that are no longer protected by copyright...read more

Replay TV: catching up with advertising revenues

Replay TV (also known as time-shift or catch-up TV) offers consumers the option of watching television broadcasts on a time-shifted basis instead of at the regular scheduled time. This function, which is very popular with viewers, is now jeopardised by an ongoing legal and political dispute. Text by Vincent Salvadé

Replay TV: catching up with advertising revenues

Replay TV: Thanks to digital technology, viewers can go back in time up to seven days and catch up on any programmes they may have missed. (Photo: Getty Images / Steve Lawrence)

Broadcasting companies, i.e. TV channels, are demanding veto rights on the time-shifted use of their programmes. What is at stake? Their advertising revenues. After all, who will watch commercials if you can skip them in replay? This dispute is of significance for SUISA and for musical rightholders too.

Current status

In past decisions, the Federal Arbitration Commission for copyright and neighbouring rights has equated subscription to a replay TV service with copying for private use, which is permitted by Article 19(2) FCA. In exchange, rightholders (including, in this case, broadcasting companies) are entitled to remuneration in accordance with Article 20(2) FCA, levied by the collecting societies in accordance with Common Tariff 12 (CT 12).

This has been the status since 2013, and broadcasters have not disputed it before the civil courts. This situation has several advantages: the distributors of the broadcasting programmes (Swisscom TV, UPC, Sunrise, etc) can offer their customers attractive services in exchange for a fee. And the collecting societies collect the fees and pass them on to the copyright and neighbouring rights rightholders.

However, in February 2018, the Federal Arbitration Commission responsible for reviewing the tariffs of the collecting societies approved the new CT 12, which provides for a slight increase in these fees, for the period 2017 to 2020. On 21 March 2018, 23 broadcasting companies appealed this decision before the Federal Administration Court. They argued that replay TV was not governed by the legal regime for private copying, and should be subject to their consent. On 12 September 2018, the Court ruled that the broadcasting companies were not entitled to appeal.

In parallel, however, turning to account the ongoing revision of the Telecommunications Act (TCA), the broadcasting companies had also demanded veto rights for replay TV in that context. In July 2018, the Transport and Telecommunications Committee of the National Council (TTC-N) followed their reasoning and introduced Article 12e TCA. This triggered a number of reactions from stakeholders opposed to the new provision. Finally, the Committee backed down and proposed that the issue be resolved in the framework of the copyright law revision.

The issue

SUISA appreciates that broadcasting companies should seek to safeguard their advertising income. This is also in the interest of the holders of musical rights, since the tariffs governing broadcasting rights (tariff A for the SSR and Common Tariff S for private broadcasters) are based on broadcasters’ revenues.

By way of reminder: based on tariff A and CT S, SUISA collected about CHF 16.8 million in remuneration from Swiss TV broadcasters in 2017, plus an additional CHF 1.3 million from the Swiss advertising windows of foreign broadcasters. By comparison, TC 12 generated slightly over CHF 3 million for musical rightholders. We should be careful not to lop off the branch on which musical rights are sitting.

Solutions

However, granting veto rights to broadcasting companies on replay TV seems unjustified. By refusing their consent, broadcasters would limit the offer available to consumers and, as a result, reduce CT 12 revenues for rightholders. By limiting private copying options, which is now regularly the case on the cloud, we would be sounding the death knell for a system that is the envy of our neighbours and has contributed to developing innovative digital services.

We feel that existing copyright law provides for a well-balanced system: under Articles 59 and 60 FCA, remuneration under CT 12 must be fair. That means on the one hand, that distributors must compensate the broadcasting companies commensurately with the significant revenues generated by replay TV. On the other hand, Articles 59 and 60 FCA are worded in sufficiently flexible terms to take into account, at least partially, the same distributors’ loss in earnings.

At the same time, the law could require distributors to obtain the broadcaster’s consent, not to their offering replay TV services to their customers, but to enabling their customers to skip the commercials. This means distributors would have to take the necessary technical measures to prevent viewers from skipping commercials when the broadcaster withholds its consent. Consumers may at first be reluctant to accept such solutions. But such measures would be the lesser evil compared with a broadcaster veto liable to significantly limit the current offer. And, for a number of stakeholders, it is a win-win solution:

  • providers who distribute the programmes could continue offering full replay TV, while consumers could continue subscribing to that option;
  • distribution companies would be able to preserve or increase their advertising revenues since they would have an additional audience of viewers who are unable to tune into programmes at the scheduled times;
  • other rightholders would continue to collect significant broadcasting distribution revenues (tariff A and CT S in the case of musical rights) while taking advantage of the booming revenue flows from CT 12.

Switzerland always favours balanced solutions. The legal regime for replay TV should be no exception to the rule; the interests of all stakeholders must be taken into account.

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Replay TV (also known as time-shift or catch-up TV) offers consumers the option of watching television broadcasts on a time-shifted basis instead of at the regular scheduled time. This function, which is very popular with viewers, is now jeopardised by an ongoing legal and political dispute. Text by Vincent Salvadé

Replay TV: catching up with advertising revenues

Replay TV: Thanks to digital technology, viewers can go back in time up to seven days and catch up on any programmes they may have missed. (Photo: Getty Images / Steve Lawrence)

Broadcasting companies, i.e. TV channels, are demanding veto rights on the time-shifted use of their programmes. What is at stake? Their advertising revenues. After all, who will watch commercials if you can skip them in replay? This dispute is of significance for SUISA and for musical rightholders too.

Current status

In past decisions,...read more

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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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.

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...read more