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Arranging works protected by copyright

Musical works in the public domain can be arranged at will. But works which are still protected by copyright, i.e. whose author has been dead for less than 70 years, cannot be arranged without permission from the rightholders. How does one go about obtaining such permission, and what points must be regulated in the permission in order to be able to register an arrangement with SUISA? Text by Claudia Kempf and Michael Wohlgemuth

Arranging works protected by copyright

To arrange a work protected by copyright whose author has been dead for less than 70 years, permission must be obtained from the rightholders. (Photo: Tabea Hüberli)

The author has the right to decide whether his work can be arranged; in other words, whether a “derived work” or an “arrangement” can be created from his or her original work. This right remains with the author and is not transferred to SUISA under the rights’ administration agreement. A person wishing to arrange a work must contact the author and obtain his or her permission to do so.

Authors generally transfer the arrangement rights to their publishers in the framework of a publishing agreement. On that basis, publishers may authorise third parties to arrange a work, or commission third parties to create a new version of the work. Publishing contracts should regulate whether the publisher may, under certain circumstances, authorise or commission an arrangement directly or whether the publisher must refer back to the author in each case. In the case of published works, therefore, the person to contact for permission is the publisher.

When dealing with successful international repertoires, obtaining permission may be a tiresome procedure, and may not always be crowned with success. Certain rightholders are happy to have their works arranged and more widely disseminated. Other rightholders attach great value to the “integrity” of their works and refuse virtually all arrangements. Either way, before an arrangement can be undertaken, sufficient time should be reserved for ascertaining the legal rights.

NB. If a number of requests have been submitted to the author or the publisher and no response has been received, it is wrong to presume that “silence means consent” and that the work can be arranged simply because “efforts were made” to obtain permission. As a rule, arranging a work without the rightholder’s consent constitutes a copyright infringement and may result in civil and criminal prosecution.

Even once the necessary permission has been obtained, the arranger is not always free to arrange the work at will. The permission may be restricted to a certain type of arrangement (e.g. translation of the lyrics into another language, shortening the work, remis, new instrumentalisation, etc.) Moreover, by law, even if they have permitted an arrangement, authors are entitled to defend their works against “distortion”. In such cases (often difficult to judge), it is the “moral rights” of the author which are at stake.

Key points of an authorisation to arrange

If an author or a publisher grants permission to arrange a work, this permission, consent, or authorisation should be recorded in a short written agreement. The agreement should cover the following points:

a) Name and address of the contractual parties (pseudonyms, if any)

b) Scope of permission: the work to be arranged must be clearly designated, as well as the extent to which the work may be musically or textually arranged. Moreover, the agreement should indicate whether and how the new work can be registered as an arrangement with SUISA.

Good to know: Registering a work as an arrangement only makes sense if the original is already registered with SUISA, and both works (original and arrangement) are to be used side by side (and independently). In the framework of the songwriting process, it is not unusual for “arranged parts” to be attributed to co-musicians although there is no original work which can be used separately. To avoid misunderstandings, it is advisable in such cases to let the co-musicians participate as co-authors rather than as arrangers.

c) Shares: Under SUISA’s Distribution Rules, for unpublished works without lyrics, the arranger is entitled to a 20% share; for published works without lyrics, the arranger’s share is 16.67%. For works with lyrics, the arranger’s share is 15% (unpublished) and 11.67% (published) respectively. In principle, the arranger’s share can be set freely. In practice, the arranger’s share lies between 0% and 25%. SUISA’s Distribution Rules provide for an exception in the case of arrangement permissions granted by publishers: here, the arranger’s share may not exceed the share in the regulatory distribution key. This is designed to avoid the share of the original author from being reduced too far. A rightholder may also permit an arrangement without granting any share of the distribution to the arranger.

d) Publishing an arrangement: In the case of arrangements of published works, it is advisable to specify in the authorisation whether the arrangement must also be published by the publisher of the original work (so that the publisher can retain control over the publishing rights). As a rule, the original publisher will insist on this. In that case, an additional publishing agreement should be signed between the original publisher and the arranger.

e) Rights warranties: Rightholders must warrant that they dispose of the necessary rights to grant the arrangement permission.

f) Place, date, rightholder’s signature

g) Governing law, jurisdiction

Special case: “sub-arrangements”

Sub-publishing agreements generally provide for the transfer of the arrangement rights from the original publisher to the sub-publisher. The sub-publisher is thus entitled to authorise or commission arrangements. In these cases, the arranger is registered as a “sub-arranger” or, with regard to new lyrics, e.g. in another language, as a “sub-lyricist”. Here too, SUISA’s Distribution Rules provide that the sub-arranger’s share may not exceed the share set in the regulatory distribution key.

How to register an arrangement with SUISA

For an arrangement of a protected work, the permission to make the arrangement must be filed – or uploaded in the case of an online registration – together with the registration form. The arranger will only receive a share of the royalties from a work if the permission to arrange explicitly states that the arranger is entitled to a share. If no percentage share is indicated, the arranger will be allocated the regulatory share. If there is no mention of the arranger’s participation, SUISA will record the arranger’s name under the original version, with a note indicating that an authorised arrangement exists but the arranger is not entitled to a participation. Accordingly, the arranger will not receive a share.

When publishers register new versions of works which they have published in the original, SUISA waives the need for an authorisation since the publisher has to settle the arrangement rights directly with its authors. The same applies for sub-publishing agreements.

Summary

To arrange protected works, therefore, you always need the rightholders’ permision – depending on the circumstances, such permission should be obtained from the author, the author’s heirs or from the publisher. Permission is the prerequisite for registering an arrangement of a protected work with SUISA.

SUISA offers its support in tracing the responsible rightholders. In the case of published works, SUISA will give you the publisher’s name and address so that you may contact the latter directly. In the case of unpubished works, SUISA forwards arrangement requests directly to the author or his/her heirs. Inquiries should be addressed to: publisher (at) suisa (dot) ch
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Musical works in the public domain can be arranged at will. But works which are still protected by copyright, i.e. whose author has been dead for less than 70 years, cannot be arranged without permission from the rightholders. How does one go about obtaining such permission, and what points must be regulated in the permission in order to be able to register an arrangement with SUISA? Text by Claudia Kempf and Michael Wohlgemuth

Arranging works protected by copyright

To arrange a work protected by copyright whose author has been dead for less than 70 years, permission must be obtained from the rightholders. (Photo: Tabea Hüberli)

The author has the right to decide whether his work can be arranged; in other words, whether a “derived work” or an “arrangement” can be created from his or her original work. This...read more

Schedler Music Summit 2018 with Romina Kalsi

The sixth recurrence of the Schedler Music Summit, an annual international songwriting camp which is organised by music publishing house Schedler Music, took place between 13 and 18 January 2018 in Lechtal, Austria. For five days, a team of 42 musicians from a variety of musical and geographic contexts with the task to compose a minimum of one song per day. Romina Kalsi, who has been a SUISA member since 2014, was selected by those in charge of the camp and the summit, Fiona Schedler and Alexander Schedler, as one of the nine summit participants from Switzerland. Text by Erika Weibel

Schedler Music Summit 2018 with Romina Kalsi

Romina Kalsi, a young singer and songwriter from Ticino was one of the participants of the Schedler Music Summit 2018. From her first experience in an international songwriting camp, Romina brings along three new songs and numerous new contacts to the international music scene. (Photo: Wolfgang Rudigier)

Romina Kalsi, a young singer and songwriter from Ticino, has become known over the last years due to the success of the band Rocky Wood. The frontwoman, singer and co-composer of the tracks has contributed significantly to the success and the creation of the first album “Shimmer” which was published by the band from Ticino in 2014. After that, Romina has selected a new solo path with her project Animor from which a digital EP named “Chasing Gold” emerged.

Creation of the works by Romina Kalsi

Kalsi explains to us that composing one of her songs can sometimes be a long process which easily keeps her busy for three to four months. This is due to the fact that she does not always has the possibility to dedicate all of their time exclusively to songwriting. It’s also possible that the basic idea for a work simply needs to ripen over a certain period of time. She does not set herself a time limit when it comes to composing for herself.

Source of inspiration and starting point for her works are often life experiences which left a mark on her, or synergies which arise in the cooperation with other musicians who respectively trigger a creative process.

Songwriting camp: Three works in three days

The participation in the Schedler Summit is Romina Kalsi’s first experience in an international songwriting camp. Fiona Schedler explained that it was particularly Romina Kalsi’s particular timbre which stood out among more than fifty SUISA authors who had applied, which was, among others, a reason that she was selected to participate in the camp. The camp gained musical variety due to Kalsi’s participation.

Alexander Schedler, the artistic leader of the camp, asked her to compose a piece for her current solo project Animor as a first assignment. It was composed in collaboration with Finnish creator Tobias Grandbacka, Riccardo Bettiol of Switzerland and Ida Björg Leisin from Denmark in one day; it’s title is “Crumble Plastic”. The piece is a pop song which is characterised by reggae elements and whose lyrics have been inspired by a current topic. It is very important for Kalsi that her music contains a message. She is of the opinion that composer carry a major responsibility since they can reach straight for the hearts of the audience with their music.

Kalsi adds that “Crumble Plastic” is the result of a surprising agreement and incredible feeling which immediately arose among the involved musicians. It was nearly written in an organic process, in a long jam session which left enough space to each composer to be able to integrate their ideas into the song.

The other works that the summit representative from Ticino was involved in are “Big Shot”, a melancholic pop song and “At The End Of The World” whose genre is similar to a soundtrack.

The composition process was rather dissimilar to the one for “Crumble Plastic”. Both are the result of intensive communication between the involved composers. In this case, the starting point were the song lyrics, characterised by metaphoric images which were created via the exchange of feelings and personal experiences of various musicians. The result: two poetic sets of lyrics which served as a basis for a nearly mathematical composition of the melody. Each passage of lyrics and music is thus the result of acrimonious work of communicating and integrating experiences of the participating composers.

In the coming months, we will find out where and when “Big Shot” and “At The End Of The World” will be published.

Challenges and advantages of a songwriting camp

Deep and long lasting friendships can arise among the musicians who collaborate during a songwriting camp and exchange very personal experiences at this occasion in order to compose songs together. Sometimes it also happens that the spark among the participants does not jump immediately or that the topics allocated by the artistic leader do not correspond with the reality or nature of the musician.

The limited deadline prescribing that at least one song has to be written per day, the feeling between the musicians and the stress arising from unavoidable confrontation with other songs which are created in the camp, are some additional aspects which either hinder or kindle the composers’ creativity, and they sometimes spur them on to reach maximum performance. As a consequence, and despite the limited time, capturing songs are created in the camp, with which not only the composers of the works but also a broad audience can identify. Alexander Schedler, creative leader of the camp, confirms that Kalsi met these challenges with great enthusiasm and creativity.

From her first experience in an international songwriting camp, Romina does not only bring along three new songs but also numerous contacts to the international music scene. Thanks to the cooperation with rather different musicians, she can also draw from new composition approaches and styles and emerges from this experience with musical maturity. Romina tells us that she has already four projects in the pipeline where she is going to enter into new cooperations with the composers who she met in the songwriting camp. In the coming months, she is particularly focussing on the implementation of her project Animor.

Tracks composed by Romina Kalsi during the summit camp, with the participation of:

“Big Shot”
Romina Kalsi
Dillon Dixon
Phil Sunday
Ida Björg Leisin

“Crumble Plastic”
Romina Kalsi
Riccardo Bettiol
Ida Björg Leisin
Tobias Grandbacka

“At The End Of The World”
Romina Kalsi
Pele Loriano
Tobias Grandbacka

SUISA Sponsoring at the Schedler Summit:
SUISA was one of the sponsors of the Schedler Music Summit 2018. Schedler Music Publishing has been registered with SUISA since 2005 and is active via various sub-publishing agreements in nearly all Western and English-speaking countries. At the Summit 2018, a total of 61 songs were composed with the participation of 42 musicians from 9 countries.

www.animormusic.com
schedlermusicsummit.com
schedlermusic.com

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  1. Bill Kalsi says:

    I feel proud of my daughter.

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The sixth recurrence of the Schedler Music Summit, an annual international songwriting camp which is organised by music publishing house Schedler Music, took place between 13 and 18 January 2018 in Lechtal, Austria. For five days, a team of 42 musicians from a variety of musical and geographic contexts with the task to compose a minimum of one song per day. Romina Kalsi, who has been a SUISA member since 2014, was selected by those in charge of the camp and the summit, Fiona Schedler and Alexander Schedler, as one of the nine summit participants from Switzerland. Text by Erika Weibel

Schedler Music Summit 2018 with Romina Kalsi

Romina Kalsi, a young singer and songwriter from Ticino was one of the participants of the Schedler Music Summit 2018. From her first experience in an international songwriting camp, Romina brings...read more

Application process for the Schedler Music Songwriter Camp 2018 now open to SUISA members

For the sixth time now, Rudi Schedler Musikverlag GmbH is organising the international “Pop & Schlager Songwriter Camp” between 13 and 18 January 2018. SUISA members may submit their application for a place in the Schedler Music Songwriter Camp 2018 until 31 October 2017. Text by Fiona Schedler, Schedler Music

Application process for the Schedler Music Songwriter Camp 2018 now open to SUISA members

International teamwork during the Schedler Music Songwriter Camp 2016: Luca Hänni, from Berne (in the background, on the right) composed a song together with Dillon Dixon, from the USA (left) and Erik Wigelius, from Sweden. (Photo: Ratko Photography)

At the “Pop & Schlager Songwriter Camp” by Schedler Music, songwriters from more than seven countries, in teams of three, compose potential hits of tomorrow under the motto “It’s all about the song” over a period of five days. A total of 35 national and international composers take part in the camp, whereby five places are specifically allocated to SUISA members. Composers, lyricists and producers may, with immediate effect and until 31 October 2017 at the latest, apply for participation in the Schedler Music Songwriter Camp which will be held between 13 and 18 January 2018 in Steeg, Austria.

Application, selection process, participation

The participation spaces shall be allocated by way of a selection process. If you are a composer, lyricist or producer and wish to participate in the “Pop & Schlager Songwriter Camp”, please submit:

  • a short biography (keywords are sufficient)
  • and reference songs (mp3 files or links)

via e-mail, stating the reference “Application – Pop & Schlager Songwriter Camp” to the following address: summit (at) schedlermusic (dot) com. Please mention in your application that you are a SUISA member. Closing date will be 31/10/2017. Schedler Music will get in touch with the songwriters that have been selected by the end of November.

Application process for the Schedler Music Songwriter Camp 2018 now open to SUISA members

Enthusiastic participants at the Songwriter Camp 2016: Slovenian songwriter team Sasa Lendero (in the middle) and Mihael Hercog (on the left) with German lyricist Oliver Lukas. (Photo: Ratko Photography)

Schedler Music Summit 2018

Immediately after the songwriter camp, the music industry meeting “Schedler Music Summit” takes place on 18 and 19 January 2018. Any newly created songs from the Camp will be showcased at this occasion in the course of a “song presentation” on Thursday, 18 January 2018 (from 8.00 pm) to the music industry audience.

Further information on the camp is available on the following website: www.schedlermusicsummit.com.
The Camp/Summit Aftermovie 2017, also provides a great insight.

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

Your email address will not be published.

For the sixth time now, Rudi Schedler Musikverlag GmbH is organising the international “Pop & Schlager Songwriter Camp” between 13 and 18 January 2018. SUISA members may submit their application for a place in the Schedler Music Songwriter Camp 2018 until 31 October 2017. Text by Fiona Schedler, Schedler Music

Application process for the Schedler Music Songwriter Camp 2018 now open to SUISA members

International teamwork during the Schedler Music Songwriter Camp 2016: Luca Hänni, from Berne (in the background, on the right) composed a song together with Dillon Dixon, from the USA (left) and Erik Wigelius, from Sweden. (Photo: Ratko Photography)

At the “Pop & Schlager Songwriter Camp” by Schedler Music, songwriters from more than seven countries, in teams of three, compose potential hits of tomorrow under the motto “It’s all about the song” over a period of five days. A total of 35 national and...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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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.

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

Publishers’ participation at SUISA not at risk

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

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

Mint Digital Services: FAQs

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

Mint Digital Services: FAQs

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mint Digital Services: FAQs

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

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

New distribution key for performing and broadcasting rights

The SUISA distribution key for performing and broadcasting rights will be changed from 01 January 2017 onwards. For works with an original publisher, the share of the author shall be 66.67% and that of the publisher 33.33%. The distribution rules are thus adapted to the CISAC key which is applied at international level. Text by Irène Philipp Ziebold

8/12 for authors, 4/12 for publishers: SUISA will adapt its distribution key for performing and broadcasting rights to European standards again. (Photo: Manu Leuenberger)

The majority of SUISA’s European sister societies apply the so-called “CISAC key” when it comes to originally published works in the performing and broadcasting rights sector. CISAC is the international umbrella for collective management organisations (Confédération Internationale des Sociétés d’Auteurs et Compositeurs). The shares of the distribution key recommended by the umbrella organisation for performances and broadcasts amount to 66.67% for authors and 33.33% for publishers.

SUISA’s distribution key

SUISA’s distribution key had deviated from the internationally established CISAC standard in the past. Up to now, SUISA distribution rules provided that the shares for originally published works for performing and broadcasting rights was 65% for authors and a maximum of 35% for publishers. Regarding the production of sound and audio-visual recordings, the composers receive 60% and the publishers 40%.

In the case of works with a sub-publisher, the author has an entitlement as per the distribution rules to receive 50%, and the publisher and sub-publisher to claim the remaining 50% for performances and broadcasts. Regarding the production of sound and audio-visual recordings, the composers receive 40% and the publisher and sub-publisher share the remaining 60%. In this context, it is worth mentioning that SUISA usually adopts the contractually agreed split between the publisher and the sub-publisher in the case of sub-published works. Only in the absence of such agreed splits will SUISA apply the keys established by the distribution rules.

Alignment with the European CISAC standard

The distribution keys by SUISA will now be adapted in the case of originally published works in the performing and broadcasting rights to European standards. The keys relating to the production of sound and audio-visual recordings (mechanical reproduction rights) shall remain unchanged in the distribution rules. Strictly speaking, the application of the CISAC key of 67% for authors and 33.33% for publishers is nothing new, but rather a re-introduction of a previous provision.

The key applied on a Europe-wide level is actually expressed in fractions 8/12 (author’s share) resp. 4/12 (publisher’s share). When SUISA began working with IT systems back in 1962, the aim was to avoid decimal places after the decimal point. As a consequence, SUISA changed the key, and rounded it to 65%, resp. 35%. The majority of the other European societies kept the translated fractions i.e. 66.67% and 33.33%.

Effects of the changed distribution rules

Thanks to the adaptation of the distribution keys, authors will be remunerated with the share that is deemed as standard in the European area. While the publisher share will be decreased by 1.67%, they will, together with the authors, benefit from positive effects which the changes bring about.

Apart from the harmonisation with other European societies, the (re)introduction of the CISAC key for originally published works entails further significant advantages:

  • Important increase in efficiency during work registration: Processing of SUISA works with international contributors will become simpler. Difficult conversions in the case of joint productions with international authors become redundant.
  • Processing distributions of the sister societies will be significantly simplified: The matching distribution keys will facilitate the processing of distributions by international sister societies to a great extent.

Validity of the changes to the distribution rules

Both the SUISA Board of Directors as well as the Swiss Federal Institute of Intellectual Property (IPI) have agreed to this change. The new distribution keys will come into force from 01 January 2017 without any retroactivity. This means, that all works declared after 01 January 2017 will be registered with the new distribution key. In the case of works that had been registered before that date, the distribution key in place shall remain valid. These works will not be changed.

The decision of the IPI dated 28 July 2016 is published at the SUISA website.

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The SUISA distribution key for performing and broadcasting rights will be changed from 01 January 2017 onwards. For works with an original publisher, the share of the author shall be 66.67% and that of the publisher 33.33%. The distribution rules are thus adapted to the CISAC key which is applied at international level. Text by Irène Philipp Ziebold

8/12 for authors, 4/12 for publishers: SUISA will adapt its distribution key for performing and broadcasting rights to European standards again. (Photo: Manu Leuenberger)

The majority of SUISA’s European sister societies apply the so-called “CISAC key” when it comes to originally published works in the performing and broadcasting rights sector. CISAC is the international umbrella for collective management organisations (Confédération Internationale des Sociétés d’Auteurs et Compositeurs). The shares of the distribution key recommended by the...read more

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? Text by Nicolas Pont

Publishing agreements are concludes between all parties involved in a work: authors (composers, lyricists, arrangers) and a publisher. (Photo: Alexskopje / Shutterstock.com)

The publishing agreement is incorporated into the law (Art. 380 ff. OR). The legal provisions are, however, not mandatory, and the parties have a lot of room to manoeuvre for the negotiations prior to signing the agreement. In cases of doubt, it might help to refer to the commented version of the SUISA model agreement.

Publishers can be referred to as the “managers of a work” – as the entity or person whose duty it is to promote the work. They seek to maximise usage and exploitation, e.g. in the form of radio broadcasts, synchronisation with audiovisual works and sales of music score. In return for this promotional activity, publishers who are members of collective management organisations (CMOs) benefit from part of the royalties for the usage of the works. The publisher is thus included in the works registration as an interested party and obtains a percentage of the work remuneration.

Entering into agreements and contracting parties

SUISA’s model agreement can be used as a contractual basis and adapted as required, but usually, each publisher has its own agreement. SUISA members have the opportunity as authors or publishers to have SUISA’s legal department check their agreement prior to signature free of charge. Our legal department may correct any disadvantageous provisions and also provide details on the professionalism of the publisher.

The law assumes that the author is the individual that has created the work. This means that a group of authors cannot be considered as authors. Only an individual member of a band can be a contracting party and sign the agreement. In order for the works to be completely integrated as the subject matter of the publishing agreement, all who have contributed to the creation of the composition must therefore sign the publishing agreement.

Furthermore, attention should also be paid to the fact that arrangements of works already published are not automatically published with the same publisher. As arrangements must be protected in their own right according to the law, the publisher must acquire the rights on them in a separate agreement with the arranger.

Term of the agreement

The agreement may be in effect between 3 (minimum duration stipulated by SUISA) and up to 70 years after the death of the author (statutory term of protection for a work). It is generally in the interest of a publisher to sign an agreement which spans as many years as possible, whereas authors are interested in limiting the term covering the assignment of their rights. It is, of course, possible to enter into a three-year-agreement which – if it is not being terminated – can be extended on a rolling basis of one year. Such an option does not require any additional steps.

If you determine the term of the agreement, the investment of the publisher should be taken into consideration, e.g. in cases where music score is being published. In any case, the parties should be aware of how long they are bound contractually. Another important point is to realise how difficult it might be to dissolve an agreement prior to its end date if the parties end up having a conflict. It is absolutely vital that rightsholders inform SUISA in any case so that SUISA can adapt its documentation.

Remuneration for the publisher

The percentage for the publisher is jointly determined by the parties. There is only one mandatory provision: In accordance with SUISA’s distribution rules, the publisher may only receive a maximum share of 35% of the remuneration from performing and broadcasting rights (e.g. for concerts and radio broadcasts). Subject to this reservation, the parties are free to determine the percentage. If no percentages have been entered into the agreement by the contracting parties, those determined by the distribution rules shall apply.

Agreements often do not contain explicit percentages, but rather refer to the applicability of the distribution rules of the respective collective management organisation. In the case of agreements with foreign publishers who register their catalogues with the society in their country, this leads to the application of foreign distribution rules: For performing and broadcasting rights, a publisher in Germany therefore receives 33.33% (GEMA), and 50% in England (PRS).

The international umbrella association of the collective management organisations, CISAC, has set out a guideline for the distribution key between authors and publishers that publishers should not receive more than 33.33% for performances and broadcasts. The 230 CISAC member societies from 120 countries are free to adapt this key. Many societies, such as GEMA and SACEM already apply this recommended distribution. SUISA also wishes to adapt its rules and regulations to this CISAC guideline. The respective application for a change of the SUISA distribution rules has been submitted to the Swiss Federal Institute of Intellectual Property (IPI) at the beginning of 2016. The IPI approval is still pending and would not come into force before 2017.

An “admin publisher”, which merely creates a connection with a collecting society (i.e. completes work registrations, checks distribution statements and possibly submits complaints etc.) should, logically, receive a smaller percentage than a publisher who is also looking after the promotion and placement of the work and the search for a producer.

You should not forget to determine the distribution of such monies that are not being paid by the collecting societies (e.g. for synchronisation rights). These revenues are usually split 50/50 between the publisher and the author. Finally, the author usually receives a 10% share of the income arising from the sales of music score.

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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? Text by Nicolas Pont

Publishing agreements are concludes between all parties involved in a work: authors (composers, lyricists, arrangers) and a publisher. (Photo: Alexskopje / Shutterstock.com)

The publishing agreement is incorporated into the law (Art. 380 ff. OR). The legal provisions are, however, not mandatory, and the parties have a lot of room to manoeuvre for the negotiations prior to signing the agreement. In cases of...read more

«Was mache ich als Verleger mit all diesen Werken?»

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Ein Jahr IndieSuisse: Verbandspräsident Andreas Ryser zieht Bilanz

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