Tag Archives: Copyright

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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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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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

M4music copyright debate: Streaming = Goldmine?

At the M4music 2018, SUISA is going to hold a panel discussion on Streaming. Participants discuss, among other subjects, whether artists get their fair shares in a booming streaming market and – if not – what needs to change. Text by Erika Weibel

M4music copyright debate: Streaming = Goldmine?

The 21st M4music takes place between 22 and 24 March 2018. (Photo: M4music)

The turnover of Streaming providers are on the rise: Videos, text and lyrics, images and music files are used via the internet as intensively as never before. It’s not just authors of the works that benefit from this but also big players such as Google, Facebook etc. What does it look like in future if the value creation is mainly happening at the big internet companies while the providers of the contents i.e. the creators and artists remain empty-handed?

What would potential scenarios and paths that could guarantee a fair – or at least fairer – income for creators and artists?

We are looking forward to a large audience which is of course invited to participate in the conversation.

Event details:

Friday, 23 March 2018 at 5.00pm
Matchbox in the Schiffbau, Zurich

The panel will be held in German and translated into French.

The 21st M4music takes place between 22 and 24 March 2018. The pop music festival of the Migros-Kulturprozent in Lausanne and Zurich provides a diverse programme again: Concerts by over 50 national and international acts, panel discussions and workshops on current topics of the music business.

www.m4music.ch/en/conference

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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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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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At the M4music 2018, SUISA is going to hold a panel discussion on Streaming. Participants discuss, among other subjects, whether artists get their fair shares in a booming streaming market and – if not – what needs to change. Text by Erika Weibel

M4music copyright debate: Streaming = Goldmine?

The 21st M4music takes place between 22 and 24 March 2018. (Photo: M4music)

The turnover of Streaming providers are on the rise: Videos, text and lyrics, images and music files are used via the internet as intensively as never before. It’s not just authors of the works that benefit from this but also big players such as Google, Facebook etc. What does it look like in future if the value creation is mainly happening at the big internet companies while the providers of the contents i.e. the creators and artists...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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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

SUISA’s financial year 2018: an outlook

In the Committee and Board meetings towards the end of the year, framework conditions for the following financial year are set. As such, the meetings of the SUISA Board in December 2017 continued to be characterised by budgets, cost rates, staffing plans, roadmaps, politics and quite a bit more. Report from the Board by Dora Zeller

SUISA’s financial year 2018: an outlook

During the meetings of the SUISA Board in December 2017, the focus was on the figures for the next financial year. (Photo: Kemal Taner / Shutterstock.com)

For the first time in the history of SUISA, the Board presented two budgets in the December meeting: that of the Cooperative Society SUISA and that of the group of companies. The group of companies includes – apart from the parent company – the subsidiary company SUISA Digital Licensing (headquartered in the Principality of Liechtenstein). Furthermore, the group of companies holds a 50% share in the Joint Venture Mint Digital Licensing AG (headquartered in Zurich).

The Board members were given access to the budgeted figures of the affiliated companies. The definitive decision on their business lies, however, with the committees in charge of each society. A new point is therefore added to SUISA’s competency rules in terms of rights and obligations of the Board.

SUISA budget 2018

Back to the numbers: A modest increase is expected for performing and broadcasting rights and a continuation of the downward trend among the reproduction rights. The compensation claims, however, might see a steep rise compared to the 2017 budget (thanks to higher collections from the blank media levy, internal networks in businesses and the rental of set top boxes). Part of the online collections will be allocated to the subsidiary company for accounting purposes. Collections from online use for music on Swiss websites, online advertising campaigns and video on demand services remain in the SUISA budget.

SUISA’s overall turnover budgeted for financial year 2018 amounts to CHF 151.9m. Collections from the use of copyright in Switzerland are budgeted to reach CHF 136.6m. On top of that, net revenues of CHF 11m are expected from abroad. Furthermore, secondary income of CHF 4.3m shall contribute to the overall results.

Expenditure is probably going to increase compared to the previous year, mainly because of the collections of CT 3a (background entertainment). From mid-July, additional staff positions are budgeted to take over this business. The Board has approved the budget for 2018 knowing that it is based on the rejection of the No-Billag-Initiative. Should the voting populace reject the fee for the reception of broadcasts, the changed situation would be met with adapted scenarios.

Regulations and statutory provisions

The auditors regularly supply the governing bodies of SUISA a questionnaire on potential unlawful actions. With this statutory provision, the level of awareness among governing bodies for unlawful acts shall be determined. By way of their answers, management and Board estimate the risk levels and comment on the control procedures. The results were approved and passed on to BDO.

Cost coverage deductions

The Board also decided that the deductions in the off-line sector correspond to those of the previous year. For the online sector it approved slightly changed rates for domestic and international application.

Changes at Board level

Due to the limitation of the period in office, two members of the Board will step down in June 2019. The knowledge acquired over many years in office by the Board members who are now stepping down needs to be replaced and SUISA needs to prepare for future challenges. As early as autumn 2017, a working group has begun with a situational analysis regarding the imminent Board retirements. The Board was informed about the results and the next steps of this analysis.

Copyright Act Review

In November, the Federal Council has passed the message regarding the Copyright Act review together with the legislative proposal on to Swiss parliament. The matter is initially going to be dealt with at National Council level by the Legal Affairs Committee (LAC), and subsequently in the States Council’s Science, Education and Culture Committee (SECC).

The Board was informed about the developments by G. Savary, member of the Board and the SECC. At the same time, he learned from the Executive Committee that the collective management organisations are satisfied with the draft by and large. It corresponds to the compromise developed by the AGUR12-II.

Need for action continues to exist in the sector concerning the online usage of music. In the EU there has been a discussion on the transfer of value on the internet for quite some time. It is high time that this discussion also takes place in Switzerland and that measures are implemented to stop the shift of the value creation away from authors towards internet technology companies.

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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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In the Committee and Board meetings towards the end of the year, framework conditions for the following financial year are set. As such, the meetings of the SUISA Board in December 2017 continued to be characterised by budgets, cost rates, staffing plans, roadmaps, politics and quite a bit more. Report from the Board by Dora Zeller

SUISA’s financial year 2018: an outlook

During the meetings of the SUISA Board in December 2017, the focus was on the figures for the next financial year. (Photo: Kemal Taner / Shutterstock.com)

For the first time in the history of SUISA, the Board presented two budgets in the December meeting: that of the Cooperative Society SUISA and that of the group of companies. The group of companies includes – apart from the parent company – the subsidiary company SUISA Digital Licensing (headquartered in...read more

Copyright Act Review: Authors and publishers must benefit more from the online exploitation of their works

Last week, 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. The “Transfer of Value”, for example, is extremely disappointing for creators and artists: Internet giants’ platforms continue to be the ones that cash in on the online exploitation of music and films. Creators and artists – and thus the suppliers of the content – are almost left empty-handed. Text by Andreas Wegelin, CEO

The Copyright Act urgently requires provisions for the online exploitation of works protected by copyright. The value creation nowadays completely passes by creators and artists – and thus the producers of the content. It is especially the powerful internet industry that benefits strongly thanks to the revenue from advertising and usage data. (Image: yaichatchai / Shutterstock.com)

Many creators and artists, users’ associations and other target groups are likely to have received the current version of the Copyright Act with relief: The legal text is a giant step compared to the half-baked draft which the Federal Council had presented at the end of 2015, and which had caused nearly all interest groups to shake their heads. The outcome was that up to March 2016 a record number of more than 1,200 position papers were submitted. The working group on copyright AGUR12 II was also reactivated. We had already reported on this earlier this year, in March, via our SUISAblog.

Parliament supposed to blaze the trail for a modern Copyright Act

The working group is made up of creators and artists, producers, users, consumers, internet service providers, the Federal Office of Justice as well as additional representatives of the administration has obviously done a good job: In the current version, the proposals of the working group were adopted to a large extent. It is now down to the Parliament to blaze the trail for a modernised version of the Copyright Act. SUISA as well as other Swiss collective management organisations support the compromise.

This does, however, not mean that the current version does not need any improvements. On the contrary – the biggest problems of digitisation for creators and artists remains unsolved: Protected works in videos, texts, images and music data have never been used at the same intensity levels as they are today via the internet. Some major internet companies are the profiteers of this exploitation while the value creation almost completely passes by creators and artists – and thus the producers of the content.

Thanks to the internet: Music lovers can nowadays access an enormous number of films, music pieces, books and news articles, nearly from anywhere and at any time. There is no longer a need for physical work copies. The availability in the Cloud or access via streaming is now enough. Apart from online distributors such as Apple, Spotify, Netflix or Amazon, music and films are nowadays mainly shared via social media platforms such as YouTube or Facebook.

Many internet providers hardly take care of copyright

Online distributors usually take care of copyright and enter into licensing agreements with producers and collective management organisations. This leads to musicians, producers and other creators and artists to receive a remuneration for their work. In the case of intermediaries, e.g. social media platforms and aggregators such as Tunein, the situation is different. The technical services they offer also allow users to disseminate works protected by copyright. In such models where protected content is shared, the providers hardly look after the copyright. On the contrary: They regularly pass the responsibility on to the users who upload the contents.

Add to that the fact that social media platforms and aggregators are the competitors of online distributors such as iTunes or Spotify – they yield high financial gains without participating the authors adequately. A European study shows that value added for the operators of such platforms is very high thanks to works such as music and films protected by copyright. 18% of Google’s income, for example, is made on the back of protected works e.g. via sponsored links. If the protected works were to fall away, the click rate and therefore the attractiveness of the search engine would drop. The value creation on platforms such as YouTube is even higher – they yield 2/3 of their turnover with contents protected by copyright – mainly from advertising, but also sales of profile data. They do, however, defer the act of clearing the copyright to those uploading the contents, even though the latter are not even in a position to do so.

A discussion on the Transfer of Value must also take place in Switzerland

Authors, the actual creators of the works, receive no or hardly any remuneration at all in the case of such platforms. This calls for urgent action. In the EU there has been a discussion on the Transfer of Value on the internet for quite some time. It is therefore high time to bring this discussion to Switzerland. Urgent measures are needed in Switzerland so that the transfer of value away from authors can be stopped – and therefore the creeping expropriation of creators and artists. Social media platforms, aggregators and search engine operators must be obligated to pay a compensation for the works used via their technical platforms.

SUISA and other Swiss collective management organisations are therefore going to introduce these important additions to the legislative process. Creators and artists must get a fairer share in the value creation on online platforms.

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Swiss Copyright Review: SUISA in charge of a working groupSwiss Copyright Review: SUISA in charge of a working group Given the diverging reactions to the preliminary draft for the copyright law review, Federal Councillor Simonetta Sommaruga consulted the AGUR12 again in the summer of 2016 – the latter is a working group consisting of representatives from the affected sectors. The working group had the goal to look for conjoint solutions. Read more
Second attempt to review the Swiss Copyright ActSecond attempt to review the Swiss Copyright Act The preliminary draft by the Swiss Federal Council for a review of the Swiss Copyright Act was not able to carry a majority during the consultation. The Federal Councillor in charge, Simonetta Sommaruga, has therefore called upon a working group again. AGUR12 II is asked to work out specific legislative proposals alongside the compromise that had been achieved by AGUR12 and been in place for more than 2 years. Read more
Copyright: Quo vadis?Copyright: Quo vadis? In December 2015, the Federal Council presented the draft for the review of the Swiss Copyright Act. At the same time, the consultation started, which is open until March 2016. Read more
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  1. sam says:

    danke für ihren einsatz

  2. Stevens says:

    They stole our revolution and now they steal our music.

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Last week, 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. The “Transfer of Value”, for example, is extremely disappointing for creators and artists: Internet giants’ platforms continue to be the ones that cash in on the online exploitation of music and films. Creators and artists – and thus the suppliers of the content – are almost left empty-handed. Text by Andreas Wegelin, CEO

The Copyright Act urgently requires provisions for the online exploitation of works protected by copyright. The value...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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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
Publishing agreements: What do I need to consider?Publishing agreements: What do I need to consider? Publishing agreements in Switzerland are governed by the Swiss Code of Obligations (OR) The respective statutory provisions on it are, however, not very detailed. In the case of music publishing agreements in particular, you cannot simply rely on the law. Besides, the contractual parties may also stipulate their own arrangements in the agreement. So what do you have to be aware of with respect to publishing agreements? Read more
SUISA member services: one look back, one look forwardSUISA member services: one look back, one look forward Quicker pay-outs due to quarterly settlements, simpler data processing via online works registrations, digital access to statements via “my account”, more efficiency via online forms … What’s next – settlements in “real time”? Will there be no more paper dispatched in future? Read more
Dual memberships: SUISA, and what else?Dual memberships: SUISA, and what else? SUISA manages the rights for its members globally. You should carefully review and consider the relevant effort and income if you wanted to become a member of several authors’ societies. If you live outside of Switzerland or the Principality of Liechtenstein, you can also become a SUISA member. Last but not least, it is also possible to be a member of another collective management organisation in addition to your SUISA membership. The following FAQs are intended to summarise what you need to consider when contemplating a so-called dual membership. Read more
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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

Swiss Copyright Review: SUISA in charge of a working group

Given the diverging reactions to the preliminary draft for the copyright law review, Federal Councillor Simonetta Sommaruga consulted the AGUR12 again in the summer of 2016 – the latter is a working group consisting of representatives from the affected sectors. The working group had the goal to look for conjoint solutions. Text by Vincent Salvadé

Swiss Copyright Review: SUISA in charge of a working group

The exhibition “Oh Yeah! Pop music in Switzerland” in the Museum for Communication in Berne covered 60 years of Swiss pop culture in the form of a multimedia experience (as pictured). An exhibition such as this would be able to benefit from a simplified rights acquisition via an extended collective licence (ECL). The introduction of such a licence has been one of the issues being discussed regarding a possible review of the Swiss Copyright Law. (Photo: Museum for Communication / Hannes Saxer)

For this purpose, several sub-groups were created; they were tasked with analysing several topics. SUISA was leading one of these sub-groups (working group 1) which focussed on four questions: Introduction of the extended collective licence, governance of the so-called “orphan” works, a possible new exception in copyright for science and the question of secondary publication rights of publicly financed scientific works.

Working group 1 consisted of the following representatives: Authors (Suisseculture), work users (DUN), libraries (BIS), music producers (IFPI), book publishers (SBVV), the Federal Office of Culture and the collective management organisations (Swissperform and SUISA). It was active between October 2016 and February 2017 and achieved the following results:

Extended collective licence

The extended collective licence (ECL) is a legal institution which is common in the Nordic countries, authorising collective management organisations to be active on behalf of all rightsholders as long as the societies are sufficiently representative. The working group holds the view that the ECL brings advantages both to rightsholders and users and consumers alike. It grants the former a remuneration for the mass exploitations of their works and performances, which individuals can hardly control and monitor. For the users, the ECL simplifies that process for obtaining the rights for projects which are connected with several goods protected by copyright (URG, CopA). This is particularly important in our digital age. Finally, the ECL could entail a growth in the number of cultural goods that are offered legally.

The working group has therefore presented a draft for a legal provision to introduce the ECL. It was careful when wording the draft that the legal basis would not be used to licence usages which clash with offers that are individually authorised by the rightsholders. Furthermore, the working group endeavoured to secure the freedom of the rightsholders by providing them with the opportunity to opt out from an ECL if the provisions are unacceptable for them.

Orphan works

Works are referred to as ‘orphan works’ if the rightsholders are unknown or cannot be located. Current legislation contains a provision on orphan works (Art. 22b URG/CopA) which authorises users to obtain the necessary exploitation rights via the licensed collective management organisations if the rightsholders cannot be contacted. This provision is, however, limited to sound and audiovisual recordings.

The working group suggests to expand this solution to all orphan works provided that they can be located in the archives of libraries, schools, museums and other institutions which contribute to the preservation of cultural heritage. It also recommends a solution in such cases where the collective management organisations cannot pay rightsholders after a period of ten years has lapsed: The money would then have to be invested into retirement funds and cultural promotion funds.

Exception for science

The working group is of the opinion that an exception of the exclusive right can be justified if the works are reproduced for scientific purposes by technical processes. These processes are, among others, data processing (text and data mining, TDM) and other similar procedures by means of which works are reproduced automatically in order for specific common features to be identified, for example. The European Union also plans to introduce such an exception.

The working group did, however, not reach an agreement concerning the issue whether this exception should be accompanied by a right to receive remuneration for the affected authors. The authors from the literature sector supported such a move whereas the users pleaded for an exception free of charge.

Technical measures simplify reading and processing of sources for scientists. Reading is a way to enjoy a work free from copyright. SUISA therefore reckons that a right to receive remuneration for the usage of sources in the context of a scientific activity is not advisable. An important factor, however, is to watch out whether the exploitation of the scientific research falls under copyright if this result contains recognisable, protected works. Furthermore, authors’ moral rights must remain unchanged, and the teaching activity must not fall under the new exception as they are already subject to a special regulation pursuant to Art. 19 and 20 URG/CopA (which provides for authors’ remuneration). The proposal of the working group takes these demands into account.

Secondary publication right

Work users, especially academic circles at Universities, wish to change the Swiss Code of Obligations in order to prohibit an author of a scientific work to assign his rights to make a work available to a publisher free of charge if it has been largely funded by the public authorities. It is the aim to allow authors to publish their works for free access on the internet, parallel to the publication by the publisher.

The working group was not able to submit a proposal regarding this issue as the opinions within the group varied too much. For publishers, such a provision would be the same as an actual expropriation and would prevent them from investing in the scientific sector.

What next?

The working group 1 has submitted its proposals to the AGUR12. The latter will discuss them together with other issues affecting the URG review (such as the fight against piracy or private copying). AGUR12 has finally established a supported compromise package where the three proposals described earlier by working group 1 were taken into consideration.

While it had to represent very different parts of the business, working group 1 managed to bring about an approach of the divergent views. This certainly contributed to a growth of the mutual understanding among the parties, and that a compromise could be found. A compromise, whose elements will be anchored in the law sooner or later, or so we hope.

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Second attempt to review the Swiss Copyright Act The preliminary draft by the Swiss Federal Council for a review of the Swiss Copyright Act was not able to carry a majority during the consultation. The Federal Councillor in charge, Simonetta Sommaruga, has therefore called upon a working group again. AGUR12 II is asked to work out specific legislative proposals alongside the compromise that had been achieved by AGUR12 and been in place for more than 2 years. Read more
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“Without an organisation like SUISA many songs would never have been created” The famous and popular musician Peter Reber has been a SUISA member since 1971. In a written interview, the composer, lyricist, artist and publisher explains, why his collective management organisation is important for him and why – from his point of view – it is not necessary that collective management organisations should be subject to a stricter supervision. Read more
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  1. Maruchka says:

    Droit d’auteur – révision
    Je ne suis pas sure d’avoir compris le chapitre ‘pour la science’

    Une petite vraie interrogation/apréhension : où s’arrête l’exception, ‘pour la science’ ?
    peut-on réquisitionner quelqu’un – juste pour la science – ?

    la science c’est des mio de personnes…
    la science ne sait-elle pas aller demander de la même façon, que n’importe quelle personne, qui veut diffuser une oeuvre ?
    si le scientifique aspirait à travailler gratuit, pour sa bonne cause ; reste que prendre c’est voler et obliger c’est très rarement bien.

    suggestion D : le scientifique fait sa demande à l’auteur et lui demande son prix/propose un tarif le scientifique informe l’auteur, qui a 10-15 jours (vs. poste) pour exprimer et exposer un éventuel désaccord et définir un autre tarif, que celui proposé par le scientifique
    + un tarif minimum mentionné dans les articles – calculé en fonction de la valeur ajoutée par l’oeuvre et des tarifs en vigueur dans le secteur du scientifique ou de l’artiste (l’oeuvrier) ; le tarif le plus élevé étant appliqué
    – en effet, dans ce genre de situation, ne faudrait-il normalement demander un audit par l’artiste ou un contrat de travail pour le scientifique-artiste ?
    pourquoi pas ?
    + subventions sont à disposition du scientifique, qui voudrait investir dans une recherche, p.ex. musicale

    Souvenez-vous quand nous montions aux fronton, pour défendre l’idée, le droit à la réflexion.
    Rappelez-vous quand le propriétaire du piano ou des toiles et de la peinture était le propriétaire de l’oeuvre, car l’esprit n’avait que peu de valeur, c’était le bien matériel qui comptait et qui recevait la somme totale des mérites, l’artiste vivant d’amour de son art et d’eau fraîche, rosée
    jusqu’à ce que sa toile ou sa musique finisse par lui rapporter argent…, enfin…, à ceux qui détenaient ses oeuvres ; lui n’ayant pas connu le jeans

    certains sont montés aux barricades, ce ne fut ni simple, ni rapide, peut-être y a-t-il eu des vies risquées mais la raisons a eu le dessus et le droit d’auteur est né, affaiblissant sans doute l’esclavagisme (ancrage du concept)
    cela a pris du temps, pour nous apporter le droit d’auteur, donc, à présent, que nous pouvons en profiter, faut-il vraiment le concéder, sans tenir compte des autres outils et données scientifiques comme un travail artistique ?
    mais pourquoi ?

    Voilà pour la science.

    Par contre se prendre un droit d’auteur sur quelque chose de visible (=/= créé par l’homme), comme par exemple une plante brésilienne brevetée aux USA/par USA c’est inconcevable…

    C’est un sujet qui me tient à coeur… :)

    • Nicolas Pont says:

      La restriction en faveur de l’utilisation à des fins scientifiques a été notamment conçue pour favoriser la fouille de textes et de données (text and data mining ou TDM).

      Il s’agit par exemple de pouvoir analyser et découvrir d’éventuels liens entre les nombreuses publications scientifiques, afin de trouver de nouvelles pistes de recherche, notamment dans le domaine de la médecine.

      Sans restriction en faveur de l’utilisation à des fins scientifiques, les chercheurs devraient, pour fouiller et compiler des extraits de textes, demander l’autorisation préalable des auteurs de ces textes, protégés par le droit d’auteur. Cela n’est tout simplement pas possible d’un point de vue pratique.

      SUISA est favorable à la restriction, qui ne devrait toutefois que peu concerner les oeuvres musicales.

      Ce qui se fait dans le secret du laboratoire du chercheur est difficilement contrôlable et il est donc également complexe de faire valoir un droit d’auteur sur cet acte.

      En revanche, il est capital que le résultat de la recherche scientifique ne puisse pas être exploité librement, s’il reproduit des oeuvres protégées. Les auteurs de ces oeuvres protégées doivent avoir leur mot à dire sur cette exploitation et avoir les moyens de demander une rémunération. C’est l’une des priorités de SUISA.

      L’exception pour la science ne doit pas concerner l’enseignement, y compris dans les universités, puisque la loi prévoit un droit à rémunération en faveur des auteurs dans ce cadre. Ce droit à rémunération fait l’objet du tarif commun 7, lequel ne doit pas être touché par une exception pour la science. C’est l’autre priorité de SUISA.

      Nicolas Pont / Service juridique SUISA Lausanne

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Given the diverging reactions to the preliminary draft for the copyright law review, Federal Councillor Simonetta Sommaruga consulted the AGUR12 again in the summer of 2016 – the latter is a working group consisting of representatives from the affected sectors. The working group had the goal to look for conjoint solutions. Text by Vincent Salvadé

Swiss Copyright Review: SUISA in charge of a working group

The exhibition “Oh Yeah! Pop music in Switzerland” in the Museum for Communication in Berne covered 60 years of Swiss pop culture in the form of a multimedia experience (as pictured). An exhibition such as this would be able to benefit from a simplified rights acquisition via an extended collective licence (ECL). The introduction of such a licence has been one of the issues being discussed regarding a possible review of the Swiss Copyright Law. (Photo: Museum...read more

The fight for the copyright review gets tougher

Dear members, the Swiss Federal Council launched the consultation for a draft to review copyright in December 2015. The draft followed the recommendations by AGUR12. However, further proposals were added from the administration and as a result of parliamentary initiatives. By Vincent Salvadé, Deputy CEO

The fight for the copyright review gets tougher

SUISA continues the fight for copyright and is getting ready for the digital future at the same time: Together with the US-American collective management organisation, SESAC, it founded Mint Digital Licensing, a joint venture issuing online licences. (Photo: ScandinavianStock / Shutterstock)

The draft was welcomed with keen interest, reflected by as many as 1,224 statements submitted during the consultation process. Unfortunately, they highlighted the fundamental differences in opinion. Something that had been expected: There are inherent risks when moving away from the compromise of the AGUR 12 (a working group on copyright that had been set up by Federal Councillor Simonetta Sommaruga in 2012) in the context of an issue as disputed as copyright.

Copyright review: The devil is in the detail

At the end of 2016, Ms Sommaruga asked the same working group to transfer their suggestions into legislative provisions and, where necessary, submit further compromise proposals. It probably was the best that could have been done, even though another option could have been to instruct an expert committee with such editorial tasks: As we all know, the devil is in the detail …

Furthermore, a neutral expert committee could have increased the legitimacy of the proposals of AGUR12. But SUISA which is represented in the working group, will join into this second round.

Cooperation with the American organisation SESAC

Given the circumstances, the plan of a stricter Federal supervision on collective management organisations is not likely to be pursued further. This is good news. After all, the future is digital, and the rights management for online usages of music follows competition rules at the instigation of the European Union.

SUISA takes the new circumstances into account and has created a joint venture, Mint Digital Licensing, together with the American organisation SESAC. Yes, dear members, your eyes didn’t deceive you: The rightsholders in the USA are interested in SUISA’s know-how and the technology so that they can manage their rights in Europe! This implies investments, innovative spirit, additional responsibility and all the risks that a free market entails. Any interference by the government would not have been appropriate in this context.

Yet, the fight for the copyright review can be expected to get tougher. We will have to prove to the market and to consumers that collective management organisations do not just claim money from them. We must show that we create the necessary legal certainty by enabling them to acquire the rights in a simple process and at a fair price for all. The fight has not been won yet – but it’s worth being fought!

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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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Dear members, the Swiss Federal Council launched the consultation for a draft to review copyright in December 2015. The draft followed the recommendations by AGUR12. However, further proposals were added from the administration and as a result of parliamentary initiatives. By Vincent Salvadé, Deputy CEO

The fight for the copyright review gets tougher

SUISA continues the fight for copyright and is getting ready for the digital future at the same time: Together with the US-American collective management organisation, SESAC, it founded Mint Digital Licensing, a joint venture issuing online licences. (Photo: ScandinavianStock / Shutterstock)

The draft was welcomed with keen interest, reflected by as many as 1,224 statements submitted during the consultation process. Unfortunately, they highlighted the fundamental differences in opinion. Something that had been expected: There are inherent risks when moving away from the compromise of the AGUR 12 (a...read more

Second attempt to review the Swiss Copyright Act

The preliminary draft by the Swiss Federal Council for a review of the Swiss Copyright Act was not able to carry a majority during the consultation. The Federal Councillor in charge, Simonetta Sommaruga, has therefore called upon a working group again. AGUR12 II is asked to work out specific legislative proposals alongside the compromise that had been achieved by AGUR12 and been in place for more than 2 years. Text by Andreas Wegelin

Second attempt to review the Swiss Copyright Act

Back to square 1: The working group for copyright convenes again. Specific legislative proposals for the review of the Swiss Copyright Act are expected to be tabled by the end of 2016. (Photo: Manu Leuenberger)

In the 19th century, Switzerland was one of the leading countries involved in the process to anchor copyright for authors at international level. The Berne Convention of 1879 was the first international Treaty on copyright. Today, nothing is left of the pioneering role Switzerland once held.

Quite the contrary: The existing Swiss copyright law was enacted after 30-year-long discussions upon the pressure by the USA on 01 July 1993. Important trade agreements with the USA would otherwise not have been possible to implement. A similar situation occurred during the partial review of the Act in 2006.

An adaptation of the copyright law to technological developments is now due. The European Union has also been holding discussions on this topic for a while. On 14 September 2016, the European Commission has tabled a proposal for a directive on copyright in the digital single market. In the EC directive, current problems such as “liability of internet service providers” were addressed at least.

Review of the Swiss Copyright Act 2011 launched

In Switzerland, the progress made by the review of the Copyright Act and the alignment of the legislative provisions to the current exploitation forms in the digital world has been rather sluggish. To recap: The trigger for the current conversations on an update of the Swiss Copyright Act had been the reply by the Federal Council in August 2011 to a Postulate by the Ständerätin (Councillor for the Council of Cantons) Géraldine Savary.

At the time, the Federal Council was of the opinion that Existing legal provisions would satisfy current options for digital usage. Authors would have to exploit the existing legal possibilities more thoroughly and equalise their lost income from internet piracy by other means: for example by giving more live concerts, in order to offset the lower income from sales of sound recordings.

This type of reply led to an outcry among the rightsholders. Known authors and musicians, specifically from the rock/pop sector, joined forces under the umbrella of the powerful association “Music Creators Switzerland”. The producer associations Audiovision Schweiz and IFPI founded the “Alliance against internet piracy”, together with the collective management organisations and other partners.

The AGUR12 Compromise

Federal Councillor Sommaruga finally gave in to the concerted demands for measures to be taken: In the summer of 2012, she initiated the working group copyright 2012. The “AGUR12” had the following task: “Show options to align copyright law with the technological developments. These include identifying and remedying of usage limitations and competitive barriers, guaranteeing a fair and adequate remuneration for the usage of content protected by copyright and the fight against piracy. On the other hand, collective management must be evaluated in terms of identifying areas for increasing efficiency and lowering costs.”

At the end of 2013, AGUR12 closed their project with recommendations which were carried by all participants. One could thus call it an “AGUR12 compromise”. The demand for implementing the recommendations remained an evident topic for the Federal Council: Subsequently, various circles submitted proposals to the parliament which were answered by the Federal Council referring to the impending legal review and thus postponed to a later date.

Preliminary draft and consultation

In December 2015, the Federal Council presented a preliminary draft for the legal review, which entered the consultation process until the end of March 2016. What was particularly bothersome with this preliminary draft was the fact that while it followed the recommendations of AGUR12, further proposals from administration itself had been added; for example, a more extensive and stricter supervision over collective management organisations. SUISA replied with an extensive statement and provided specific wordings for improving the legislative text.

More than 1,200 statements and opinions were submitted during the consultation process. Those from libraries and archives (about 400) all have the same message. They demand simple possibilities to make their archives accessible. When it comes to rights exploitation issues, they blame the collective management organisations for any difficulties that arise in this context. It is, however, the latter who enable certain usages by bundling rights together.

AGUR12 II initiated

The Federal Councillor in charge had to realise this summer that the consultation draft was coming under fire from all corners and was still far away from a solution carried by the majority. She therefore wishes to offer the affected parties to find a solution that can be carried before the Federal Council can decide on the next steps in the legislative process.

On 30 August 2016, Federal Councillor Sommaruga thus initiated the working group AGUR12 II. The working group has now got additional stakeholders, representing the interests of internet providers and experts from the Federal Office for Justice. AGUR12 II is thus tasked with working out specific legislative proposals in line with the compromises determined by AGUR12, which have been in place for more than 2 years now.

The new AGUR12II has, in the meantime, started with its activities. In the first meeting, it became apparent that the members deal with the different interests and positions in a focussed and constructive manner. As a consequence, further sub-groups were created with the aim to prepare specific legislative proposals in a smaller but representative circle. The results are expected to be ready by the end of 2016.

Legal review thrown back by 30 months

Collective management organisations are active on behalf of authors within the AGUR12 II working group. Their representatives hold the necessary legal knowledge in order to formulate legislative provisions. A modernised copyright with fair framework conditions for rightsholders is one of the core aims of the Cooperative Society for Authors and Publishers of Music: SUISA readily offers its expert knowledge and collaborates actively in the working group.

By initiating the AGUR12 II working group, the copyright legislation review in Switzerland has been set back by 30 months. Back to square 1, where AGUR12 finished with its recommendations at the end of 2013. One can’t help but get the impression that the government’s ideas on trade and agricultural policies are clearer than those on copyright. That is a real shame, even more so when Switzerland, as a veritable nation of culture, once excelled as a pioneer of the rights for the protection of authors.

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Copyright: Quo vadis? In December 2015, the Federal Council presented the draft for the review of the Swiss Copyright Act. At the same time, the consultation started, which is open until March 2016. SUISA supports the proposed measures inasmuch as they have been taken from the compromise agreement reached by the working group on copyright (AGUR12). SUISA has been contributing to said working group which had been summoned by Federal Councillor Simonetta Sommaruga in 2012, consisting of affected parties. Read more
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The preliminary draft by the Swiss Federal Council for a review of the Swiss Copyright Act was not able to carry a majority during the consultation. The Federal Councillor in charge, Simonetta Sommaruga, has therefore called upon a working group again. AGUR12 II is asked to work out specific legislative proposals alongside the compromise that had been achieved by AGUR12 and been in place for more than 2 years. Text by Andreas Wegelin

Second attempt to review the Swiss Copyright Act

Back to square 1: The working group for copyright convenes again. Specific legislative proposals for the review of the Swiss Copyright Act are expected to be tabled by the end of 2016. (Photo: Manu Leuenberger)

In the 19th century, Switzerland was one of the leading countries involved in the process to anchor copyright for authors at international level. The Berne...read more