Tag Archives: Neighbouring rights

Videos with music on the internet: New offer for small enterprises

Until now, enterprises and individuals had to license each video with music on their websites and social media channels individually at SUISA. From November 2019 onwards, SUISA and its partner Audion GmbH offer an annual lump sum for online usage of music in web videos to small enterprises. Text by Hansruedi Brütsch

Videos with music on the internet: New offer for small enterprises

With the new SUISA offer, small enterprises no longer have to license each video individually but benefit from an annual blanket fee. (Photo: Rawpixel.com/Shutterstock)

More and more companies use videos on their websites or social media channels in order to convey information in a simpler and more entertaining way, and to create a modern appearance. Whenever music is used in those videos, enterprises as well as individuals require a licence for copyright, i.e. for the composition and the lyrics as well as a licence for neighbouring rights i.e. the rights of the performers, producers of sound recordings and music labels. You can usually acquire the licence for the copyright from SUISA against payment of a fee, and the licence for the neighbouring rights from the producer of the sound recording, resp. the label. That way, authors, publishers, artists, producers etc. receive a payment for the use of their works and performances; the paid remuneration will be distributed to them after deduction of a commission of about 15%.

New: a joint licence for copyright and neighbouring rights

Up to now, users had to acquire such a licence for each individual video on the basis of Tariff VN. Together with Audion GmbH, SUISA has now developed a simpler, attractive licensing model for small enterprises of up to 49 staff and up to CHF 9m turnover. Against payment of an annual fee of CHF 344.00 (excl. VAT), small enterprises and individuals can put videos with music onto their own website as well as publish them on their own social media profiles. Thanks to the collaboration between SUISA and Audion GmbH, the annual blanket fee is covering the acquisition of both copyright and neighbouring rights.

The licence is valid for one year from the point in time when the invoice is issued. Small enterprises and individuals can thus upload an unlimited number of videos with music without having to notify us about each of them individually. A licence requirement is that the customer’s offer is directed mainly to interested parties in Switzerland and Liechtenstein.

Exceptions and other rights

The following usages are exempt from this blanket fee:

  • Advertising videos (commercial videos)
  • Music videos
  • Videos with a production budget of more than CHF 15,000
  • Videos with a total play time of more than 10 min.

Further information can be accessed on the SUISA website.

It is important that this licence only covers the reproduction rights and the making available online. In order to use music protected by copyright, resp. music from a sound recording for a video, you need an additional authorisation for the so-called synchronisation. The right to sync music with the film, i.e. to connect the two, is usually managed by the publisher of the work and is not granted by SUISA within the scope of this offer. The synchronisation rights for the desired works must be requested from the respective music publisher.

This is what you need to consider when selecting music

As far as synchronisation rights are concerned, you need to consider the following: If a company wishes to use a hit by Lo & Leduc, Züri West or by international stars such as Ed Sheeran or Taylor Swift as background for their video, the sync rights can cost some hundred, even up to several tens of thousands of Swiss Francs. Before producing the video, you should therefore determine the costs for the synchronisation rights with the respective publisher in any case. A simple and cost-effective alternative is to use so-called mood music. This is music from catalogues offered by various publishers specifically for the musical setting of films and/or sound and audiovisual recordings. The advantage of mood music is that a film producer resp. user can get the authorisation for the use of this music directly from SUISA. Click here for further details and a list of providers of mood music.

When you create a video with music, the moral rights also have to be taken into consideration: It is, for example, not permitted to use a musical work for a political video without having acquired the authorisation from the publisher or the authors. You will also need the permission by the publisher/author if you arrange a musical work in a video (“arrangement authorisation”).

You can also read up more on the SUISA website regarding this topic.

Especially when it comes to well-known resp. successful musical works on social media, additional demands made directly by rightholders cannot be excluded (or, in some cases, the blocking of the video).

There is more info on the new blanket fee by SUISA and Audion GmbH on our website at www.suisa.ch/344 as well as Licensing terms and conditions for the use of music in videos on company websites and company-owned social media profiles.

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Until now, enterprises and individuals had to license each video with music on their websites and social media channels individually at SUISA. From November 2019 onwards, SUISA and its partner Audion GmbH offer an annual lump sum for online usage of music in web videos to small enterprises. Text by Hansruedi Brütsch

Videos with music on the internet: New offer for small enterprises

With the new SUISA offer, small enterprises no longer have to license each video individually but benefit from an annual blanket fee. (Photo: Rawpixel.com/Shutterstock)

More and more companies use videos on their websites or social media channels in order to convey information in a simpler and more entertaining way, and to create a modern appearance. Whenever music is used in those videos, enterprises as well as individuals require a licence for copyright, i.e. for the composition and the lyrics as well...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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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

Why SUISA members should also consider joining SWISSPERFORM

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

Why SUISA members should also consider joining SWISSPERFORM

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

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

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

Neighbouring rights

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

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

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

SWISSPERFORM

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

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

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

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

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

Distribution of radio and TV usages

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

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

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

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

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

This is how you become a member of SWISSPERFORM

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

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

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

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

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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.

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

Why SUISA members should also consider joining SWISSPERFORM

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

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