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Livestream licensing by SUISA

Driven by the pandemic, livestreaming of the most varied forms of events has grown in significance. Thanks to this technology, it is possible to share an event with a virtual audience despite the applicable bans and restrictions. This article outlines SUISA’s licensing practice and terms and conditions for livestreams. Text by Martin Korrodi

Livestream licensing by SUISA

A concert in your living room: organisers who air an event with music in real time over the internet must register and license the livestream with SUISA. (Photo: Scharfsinn / Shutterstock.com)

During the pandemic, dance and fitness courses, religious services, general meetings, and ever more concerts were recorded on the internet and aired as livestreams in replacement of disallowed live events. In October 2020, a virtual concert of the South Korean boy-group BTS attracted over 900,000 fans worldwide and brought in revenues of USD 44m.

These online events regularly fuel debate in the media, as well as between music creators and, naturally, the organisers of livestreaming events. More often than not, discussions revolve around the licensing terms and conditions for the necessary livestreaming rights.

What is a livestream?

A livestream is an event that is aired individually and in real time over the internet. The audience can log in at the start of the event and follow the event live – for free or for a fee. Livestreams should be distinguished from on-demand offers where spectators can choose to view the content at the time of their choice. Moreover, a livestream is not a broadcast, where contents are also transmitted in real time, but as programmes in a succession of broadcasts and not as individual events. A livestreaming licence is required for any individual event that is simultaneously recorded and streamed over the internet where the audience cannot freely choose when to view it.

Livestream licensing conditions are based on performance tariffs

Since streamed events are generally events that could just as well be staged live in the presence of an audience or performed by way of replacement for such events, the licensing terms are based on the terms and conditions of the relevant performance tariffs. Accordingly, the same percentage rate will apply to a streamed concert as that applied to a concert performed with a physical audience under Common Tariff K (CT K). Proceeding by analogy with the performance tariffs ensures that organisers of virtual and physical concerts are treated on an equal footing since their events tend to be reciprocal substitutes.

Licensing conditions distinguish between different categories: concerts, DJ sets, shows and ballet performances, and theatrical plays. The relevant rate is applied to revenues or costs as provided in the performance tariffs (CT K and CT Hb). Also in accordance with the latter, rates are adjusted proportionately with the duration of the protected music used (pro rata temporis rule). In addition to these categories, other classes of events, such as sports events, evening entertainment, seminars, religious services, events in homes and hospitals, etc. are grouped under “other events” – in this case, a flat rate of 2% of gross revenues or costs is applied.

If revenues are less than the gross cost, or if there are no revenues, the above rates are applied to total costs. As in the case of the performance tariffs, music-related gross costs are deducted. These costs consist of the following: musicians’ fees and expenses, rental of sound and recording equipment (microphones, mixing console, camera, etc.), instrument rental, and rent for the location.

Events with an audience that are additionally streamed

Live events are often staged with a small physical audience and simultaneously aired over the internet to extend their reach. In such cases, the organiser will need a “normal” licence for the performance rights and an additional licence for the livestream. As a rule, this means that, in addition to the fees charged under the performance tariff, the minimum fee CHF 40 will be charged for the livestream, since the revenues or costs of the event are already taken into account in the performance licensing fee. However, if the livestream generates separate revenues, the licence fees for the livestream will be charged on that basis.

Viewing streams after the live event

Many livestream organisers leave recordings of the stream on the internet for a certain period time after the live event; these recordings can be subsequently called up and viewed by people who missed the livestream at the official time. Provided the livestream was properly declared and licensed, SUISA allows it to be stored for subsequent viewing for a flat fee of CHF 100 in the case of concerts and DJ sets – for all other types of events the flat fee is CHF 50.

What rights are covered by the licence?

For organisers established in Switzerland or Liechtenstein whose streams are primarily intended for a domestic (Switzerland and Liechtenstein) audience, SUISA can licence the rights for the world repertoire. In the case of international organisers whose streams are intended for audiences including Switzerland and Liechtenstein, SUISA can licence the world repertoire for uses in our territory; in this case, the licence fees will be calculated only on the basis of the sales realised in Switzerland and Liechtenstein.

In the livestream area, SUISA only manages authors’ musical copyrights. For all other rights, e.g. neighbouring rights or synchronisation rights, users should contact the relevant rightholders.

Livestreams with music must be registered with SUISA

Please refer to our website for the licensing terms and conditions, application form, and further information about livestreams:
www.suisa.ch/en/customers/online/video/live-streams.html

To complete your application, the following information is required:

  • customer’s contact particulars
  • category of the livestream
  • livestream particulars title, duration, date, website URL, number of views
  • total revenues
  • (gross) costs
  • Will the event be recorded and stored for subsequent viewing? (yes/no)
  • list of musical works contained in the livestream

A licence is also required for livestreams produced via an external platform and embedded on your own website (e.g. Facebook Live, Instagram Live, Youtube Live or Twitch).

The rules governing current temporary exceptions in the livestream area proceeding from federal measures to combat the corona pandemic are also published on our website:
www.suisa.ch/en/suisa/measures-corona-pandemic/information-for-customers.html

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Driven by the pandemic, livestreaming of the most varied forms of events has grown in significance. Thanks to this technology, it is possible to share an event with a virtual audience despite the applicable bans and restrictions. This article outlines SUISA’s licensing practice and terms and conditions for livestreams. Text by Martin Korrodi

Livestream licensing by SUISA

A concert in your living room: organisers who air an event with music in real time over the internet must register and license the livestream with SUISA. (Photo: Scharfsinn / Shutterstock.com)

During the pandemic, dance and fitness courses, religious services, general meetings, and ever more concerts were recorded on the internet and aired as livestreams in replacement of disallowed live events. In October 2020, a virtual concert of the South Korean boy-group BTS attracted over 900,000 fans worldwide and brought...read more

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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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.

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

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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  1. Der Text sollte updated werden. Nach dem neuen Verteilungsreglement der SUISA erhält der Verleger neu höchstens 33,33% der Vergütung
    aus den Aufführungs- und Senderechten. (Im Text steht noch die alte Regel von 35%)

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.

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