(Codecision procedure: first reading)

The European Parliament ,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2008)0464),

–   having regard to Article 251(2) and Articles 47(2), 55 and 95 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0281/2008),

–   having regard to Rule 51 of its Rules of Procedure,

–   having regard to the report of the Committee on Legal Affairs and the opinions of the Committee on Industry, Research and Energy, the Committee on the Internal Market and Consumer Protection and the Committee on Culture and Education (A6-0070/2009),

1.  Approves the Commission proposal as amended;

2.  Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;

3.  Instructs its President to forward its position to the Council and the Commission.

Text proposed by the Commission   Amendment Amendment 35 Proposal for a directive – amending act Recital 2 (2)  In the case of performers this period starts with the performance or, when the fixation of their performance is published or communicated to the public within 50 years after the performance is made, 50 years from the first such publication or the first such communication to the public, whichever is the earliest. (2)  In the case of performers this period starts with the performance or, when the fixation of their performance is published or communicated to the public within 50 years after the performance is made, with the first such publication or the first such communication to the public, whichever is the earliest. Amendment 36 Proposal for a directive – amending act Recital 5 (5)  Performers generally start their careers young and the current term of protection of 50 years with regard to performances fixed in phonograms and for phonograms often does not protect their performances during their entire lifetime. Therefore, performers face an income gap at the end of their lifetimes. They are also often not able to rely on their rights to prevent or restrict objectionable uses of their performances that occur during their lifetimes. (5)  Performers generally start their careers young and the current term of protection of 50 years applicable to fixations of performances often does not protect their performances for their entire lifetime. Therefore, some performers face an income gap at the end of their lifetimes. They are also often not able to rely on their rights to prevent or restrict objectionable uses of their performances that may occur during their lifetimes. Amendment 37 Proposal for a directive – amending act Recital 7 (7)  The term of protection for fixations of performances and for phonograms should therefore be extended to 95 years after publication of the phonogram and the performance fixed therein. If the phonogram or the performance fixed in a phonogram has not been published within the first 50 years, then the term of protection should run for 95 years from the first communication to the public. (7)  The term of protection for fixations of performances and for phonograms should therefore be extended to 70 years after the relevant event. Amendment 39 Proposal for a directive – amending act Recital 8 (8)  Upon entering into a contractual relationship with a phonogram producer, performers normally have to transfer to the phonogram producers their exclusive rights of reproduction, distribution, rental and making available of fixations of their performances. In exchange, performers are paid an advance on royalties and enjoy payments only once the phonogram producer has recouped the initial advance and made any contractually defined deductions. Performers who play in the background and do not appear in the credits ("non-featured performers") usually transfer their exclusive rights against a one-off payment (non recurring remuneration). (8)  Upon entering into a contractual relationship with a phonogram producer, performers normally have to transfer or assign to the phonogram producers their exclusive rights of reproduction, distribution, rental and making available of fixations of their performances. In exchange, some performers are paid an advance on royalties and enjoy payments only once the phonogram producer has recouped the initial advance and made any contractually defined deductions. Other performers transfer or assign their exclusive rights against a one-off payment (non-recurring remuneration). This is particularly the case for performers who play in the background and do not appear in the credits ("non-featured performers") but sometimes also for performers who appear in the credits ("featured performers"). Amendment 40 Proposal for a directive – amending act Recital 9 (9)  For the sake of legal certainty it should be provided that in the absence of clear indications to the contrary, a contractual transfer or assignment of rights in the fixation of the performance concluded before the date by which Member States are to adopt measures implementing the directive shall continue to produce its effects for the extended term. (15)   For the sake of legal certainty it should be provided that in the absence of clear indications to the contrary in the contract , a contractual transfer or assignment of rights in the fixation of the performance concluded before the date by which Member States are to adopt measures implementing the directive shall continue to produce its effects for the extended term. Amendment 41 Proposal for a directive – amending act Recital 10 (10)  In order to ensure that performers who have transferred their exclusive rights to phonogram producers before the extension of the term of protection actually benefit from that extension, a series of accompanying transitional measures should be introduced. These measures should apply to contracts between performers and phonogram producers which actually continue to produce their effects for the extended term. (10)  In order to ensure that performers who have transferred their exclusive rights to phonogram producers actually benefit from that extension, a series of accompanying measures should be introduced. Amendment 42 Proposal for a directive – amending act Recital 11 (11)  A first accompanying transitional measure should be that phonogram producers are under an obligation to set aside, at least once a year, at least 20 percent of the revenues from the exclusive rights of distribution, reproduction and making available of phonograms which, in the absence of the extension of the term of protection as a result of lawful publication or lawful communication, would be in the public domain. (11)  A first accompanying measure should be that phonogram producers are under an obligation to set aside, at least once a year, a sum corresponding to 20 percent of the revenues from the exclusive rights of distribution, reproduction and making available of phonograms. "Revenues" means the revenues derived by the phonogram producer before deducting costs. Amendments 43 and 7 Proposal for a directive – amending act Recital 12 (12)  The first transitional accompanying measure should not entail a disproportionate administrative burden on small and medium sized phonogram producers. Therefore, Member States shall be free to exempt certain phonogram producers who are deemed small and medium by reason of the annual revenue achieved with the commercial exploitations of phonograms. deleted Amendment 44 Proposal for a directive – amending act Recital 13 (13)  Those monies should be reserved solely for the benefit of performers whose performances are fixed in a phonogram and who have transferred their rights to the phonogram producer against a one-off payment. The monies set aside in this manner should be distributed to non-featured performers at least once a year on an individual basis. Member States may require that distribution of those monies is entrusted to collecting societies representing performers. When the distribution of those monies is entrusted to collecting societies, national rules on non-distributable revenues may be applied. (13)  Those payments should be reserved solely for the benefit of performers whose performances are fixed in a phonogram and who have transferred or assigned their rights to the phonogram producer against a one-off payment. The payments set aside in this manner should be distributed to non-featured performers at least once a year on an individual basis. Such distribution should be entrusted to collecting societies and national rules on non distributable revenues may be applied. In order to avoid a disproportionate burden in the collection and administration of these revenues, Member States may regulate the extent to which micro enterprises are subject to the obligation to contribute where such payments would appear unreasonable in relation to the costs of collecting and administering such revenues. Amendment 45 Proposal for a directive – amending act Recital 14 (14)  However, Article 5 of Directive 2006/115 on rental right and lending right and on certain rights related to copyright in the field of intellectual property already grants performers an unwaivable right to equitable remuneration for the rental, inter alia, of phonograms. Likewise, in contractual practice performers do not usually transfer to phonogram producers their rights to claim a single equitable remuneration for broadcasting and communication to the public under Article 8(2) of Directive 2006/115/EC and to fair compensation for reproductions for private use under Article 5(2)(b) of Directive 2001/29/EC. Therefore, in the calculation of the overall amount to be dedicated by a phonogram producer to payments of the supplementary remuneration, no account should be taken of revenues which the phonogram producer has derived from the rental of phonograms and from a single equitable remuneration for broadcasting and communication to the public and fair compensation for private copying should . (14)  However, Article 5 of Directive 2006/115/EC on rental right and lending right and on certain rights related to copyright in the field of intellectual property already grants performers an unwaivable right to equitable remuneration for the rental, inter alia, of phonograms. Likewise, in contractual practice performers do not usually transfer or assign to phonogram producers their rights to claim a single equitable remuneration for broadcasting and communication to the public under Article 8(2) of Directive 2006/115/EC and to fair compensation for reproductions for private use under Article 5(2)(b) of Directive 2001/29/EC. Therefore, in the calculation of the overall amount to be dedicated by a phonogram producer to payments of the supplementary remuneration, no account should be taken of revenues which the phonogram producer has derived from the rental of phonograms or of the single equitable remuneration received for broadcasting and communication to the public or of the fair compensation received for private copying. Amendment 46 Proposal for a directive – amending act Recital 14 a (new) (14 a)  A second accompanying measure in order to rebalance contracts whereby performers transfer their exclusive rights, on a royalty basis, to a phonogram producer, should be a 'clean slate' for those performers who have assigned their above-mentioned exclusive rights to phonogram producers in return for royalties or remuneration. In order for performers to benefit fully from the extended term of protection, Member States should ensure that, under agreements between phonogram producers and performers, a royalty or remuneration rate unencumbered by advance payments or contractually defined deductions is paid to performers during the extended period. Amendment 38 Proposal for a directive – amending act (15)  A second accompanying transitional measure should be that the rights in the fixation of the performance should revert to the performer if a phonogram producer refrains from offering for sale in sufficient quantity copies of a phonogram which, but for the term extension, would be in the public domain or from making such a phonogram available to the public. As a consequence, the rights of the phonogram producer in the phonogram should expire, in order to avoid a situation in which these rights would coexist with those of the performer in the fixation of the performance whilst the latter rights are no longer transferred or assigned to the phonogram producer. (7a)  The rights in the fixation of the performance should revert to the performer if a phonogram producer refrains from offering for sale in sufficient quantity within the meaning of the International Convention on the Protection of Performers, Producers of Phonograms and Broadcasting Organisations copies of a phonogram which, but for the term extension, would be in the public domain or refrains from making such a phonogram available to the public. That option should be available on expiry of a reasonable period of time left to the phonogram producer to carry out both of these acts of exploitation. The rights of the phonogram producer in the phonogram should therefore expire, in order to avoid a situation in which these rights would coexist with those of the performer in the fixation of the performance while the latter rights are no longer transferred or assigned to the phonogram producer. Amendment 48 Proposal for a directive – amending act Recital 15 a (new) (15a)  Member States should be able to provide that certain terms in those contracts which provide for recurring remuneration can be renegotiated for the benefit of performers. Member States should have procedures in place in case the renegotiation fails. Amendment 49 Proposal for a directive – amending act Recital 16 (16)  This accompanying measure should also ensure that a phonogram is no longer protected once it is not made available to the public after a certain period of time following the term extension, because rightholders do not exploit it or because the phonogram producer or the performers cannot be located or identified. If, upon reversion, the performer has had a reasonable period of time to make available to the public the phonogram which, but for the term extension, would be no longer protected, the phonogram is not made available to the public, the rights in the phonogram and in the fixation of the performance should expire. deleted. Amendment 50 Proposal for a directive – amending act Recital 17 a (new) (17a)  This Directive does not affect national rules and agreements which are compatible with its provisions, for example collective agreements concluded in Member States between organisations representing performers and organisations representing producers. Amendment 51 Proposal for a directive – amending act Recital 18 (18)  In certain Member States, musical compositions with words are applied a single term of protection, calculated from the death of the last surviving author, while in other Member States, separate terms of protection apply for music and lyrics. Musical compositions with words are overwhelmingly co-written. For example, regarding opera, there are often different authors to the music and to the lyrics . Moreover, in musical genres such as jazz, rock and pop music, the creative process is often collaborative in nature. (18)  In certain Member States, musical compositions with words are applied a single term of protection, calculated from the death of the last surviving author, while in other Member States separate terms of protection apply for music and lyrics. Musical compositions with words are overwhelmingly co-written. For example, an opera is often the work of a librettist and a composer . Moreover, in musical genres such as jazz, rock and pop music, the creative process is often collaborative in nature. Amendment 52 Proposal for a directive – amending act Recital 19 (19)  Consequently, the harmonisation of the term of protection in musical compositions with words is incomplete, giving rise to impediments to the free movement of goods and services, such as cross-border collective management services. (19)  Consequently, the harmonisation of the term of protection in musical compositions with words whose lyrics and music were created in order to be used together is incomplete, giving rise to obstacles to the free movement of goods and services, such as cross-border collective management services. In order to ensure the removal of such obstacles, all such works in protection at the date by which the Member States must transpose this Directive should have the same harmonised term of protection in all Member States. Amendment 53 Proposal for a directive – amending act Recital 21 (new) (21)  In accordance with point 34 of the Interinstitutional Agreement on Better Law-Making , Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables illustrating the correlation between this Directive and the transposition measures and to make them public. Amendment 72 Proposal for a directive – amending act Article 1 – point 5 Directive 2006/116/EC Article 1 – paragraph 7 The term of protection of a musical composition with words shall expire 70 years after the death of the last of the following persons to survive, whether or not these persons are designated as co-authors: the author of the lyrics and the composer of the music. The term of protection of a musical composition with words shall expire 70 years after the death of the last of the following persons to survive, whether or not these persons are designated as co-authors: the author of the lyrics and the composer of the musical composition, provided that both contributions were specifically created for the respective musical composition with words. Amendment 55 Proposal for a directive – amending act Article 1 – point 1 Directive 2006/116/EC Article 3 – paragraph 1 – sentence 2 However, However, - if a fixation of the performance otherwise than in a phonograph is lawfully published or lawfully communicated to the public within this period, the rights shall expire 50 years from the date of the first such publication or the first such communication to the public, whichever is the earlier, - if a fixation of the performance otherwise than in a phonogram is lawfully published or lawfully communicated to the public within this period, the rights shall expire 50 years from the date of the first such publication or the first such communication to the public, whichever is the earlier, - if a fixation of the performance in a phonograph is lawfully published or lawfully communicated to the public within this period, the rights shall expire 95 years from the date of the first such publication or the first such communication to the public, whichever is the earlier. - if a fixation of the performance in a phonogram is lawfully published or lawfully communicated to the public within this period, the rights shall expire 70 years from the date of the first such publication or the first such communication to the public, whichever is the earlier. Amendment 56 Proposal for a directive – amending act Article 1 – point 2 Directive 2006/116/EC Article 3 – sentences 2 and 3 (2)  In the second and third sentence of Article 3(2) the cipher "50" is replaced by the cipher "95" . (2)  In the second and third sentence of Article 3(2), the number "50" is replaced by "70" . Amendment 57 Proposal for a directive – amending act Article 1 – point 2 a – introductory part (new) Directive 2006/116/EC Article 3 (2 a)  In Article 3, the following paragraphs 2a to 2e shall be inserted : Amendment 58 Proposal for a directive – amending act Article 1 – point 2 a (new) Directive 2006/116/EC Article 3 – paragraph 2 a (new) 2a.  If, 50 years after the phonogram was lawfully published, or failing such publication, 50 years after it was lawfully communicated to the public, the phonogram producer does not offer copies of the phonogram for sale in sufficient quantity or does not make it available to the public, by wire or wireless means, in such a way that members of the public may access it from a place and at a time individually chosen by them, the performer may terminate the contract whereby he has transferred or assigned his rights in the fixation of his performance to a phonogram producer (hereinafter, a "contract on transfer or assignment"). The right to terminate the contract may be exercised if the producer, within a year from the notification by the performer of his intention to terminate the contract pursuant to the previous sentence, does not carry out both acts of exploitation mentioned in that sentence. This right to terminate may not be waived by the performer. Where a phonogram contains the fixation of the performances of a plurality of performers, they may terminate their contracts on transfer or assignment in accordance with the applicable national law. If the contract on transfer or assignment is terminated pursuant to this paragraph, the rights of the phonogram producer in the phonogram shall expire. Amendment 59 Proposal for a directive – amending act Article 1 – point 2 a (new) Directive 2006/116/EC Article 3 – paragraph 2 b (new) 2b.  Where a contract of transfer or assignment gives the performer a right to claim a non-recurring remuneration, the performer shall have the right to obtain an annual supplementary remuneration from the phonogram producer for each full year immediately following the 50th year after the phonogram was lawfully published, or failing such publication, the 50th year after it was lawfully communicated to the public. The right to obtain an annual supplementary remuneration may not be waived by the performer. Amendment 60/rev Proposal for a directive – amending act Article 1 – point 2 a (new) Directive 2006/116/EC Article 3 – paragraph 2 c (new) 2c.  The overall amount to be dedicated by a phonogram producer to payments of the supplementary remuneration referred to in paragraph 2b shall correspond to 20 percent of the revenues which he has derived, during the year preceding that for which the said remuneration is paid, from the reproduction, distribution and making available of those phonograms, following the 50th year after the phonogram was lawfully published, or failing such publication, the 50th year after it was lawfully communicated to the public. Member States shall ensure that phonogram producers are required to provide to performers, who are entitled to the annual supplementary remuneration referred to in paragraph 2b, on request, any information which may be necessary in order to secure the payment of that remuneration. Amendment 61 Proposal for a directive – amending act Article 1 – point 2 a (new) Directive 2006/116/EC Article 3 – paragraph 2 d (new) 2d.  Member States shall ensure that the right to obtain an annual supplementary remuneration referred to in paragraph 2b is administered by collecting societies. Amendment 62 Proposal for a directive – amending act Article 1 – point 2 a (new) Directive 2006/116/EC Article 3 – paragraph 2 e (new) 2e.  Where a performer is entitled to recurring payments, neither advance payments nor any contractually agreed deductions shall be deducted from the payments to the performer the 50th year after the phonogram was lawfully published, or failing such publication, the 50th year after it was lawfully communicated to the public. Amendment 63 Proposal for a directive – amending act Article 1 – point 3 Directive 2006/116/EC Article 10 – paragraph 5 5.  Article 3 (1) and (2) in their version as amended by Directive [// insert: Nr. of the amending directive] shall continue to apply only to fixations of performances and phonograms in regard of which the performer and the phonogram producer are still protected, by virtue of these provisions, on [insert date before which Member States are to transpose the amending directive, as mentioned in Article 2 below]. 5.  Article 3(1) to 3(2)(e) in the version amended by Directive [// insert Nr. of the amending directive] shall apply to fixations of performances and phonograms in regard to which the performer and the phonogram producer are still protected, by virtue of these provisions, on ... [insert the date in Article 2(1) of the amending directive] and to fixations of performances and phonograms which come into being after that date. Amendment 73 Proposal for a directive – amending act Article 1 – point 3 a Directive 2006/116/EC Article 10 – paragraph 6 (new) (3a)  In Article 10, the following paragraph 6 is added: "6. Article 1(7), in its version amended by Directive [insert number of the amending Directive], shall apply to musical compositions with words of which at least the musical composition or the lyrics are protected in at least one Member State before ... [insert the date in Article 2(1) of the amending Directive] and to musical compositions with words which come into being after that date. The previous subparagraph shall be without prejudice to any acts of exploitation performed before ... [insert the date in Article 2(1) of the amending Directive]. Member States shall adopt the necessary provisions to protect in particular acquired rights of third parties." Amendment 65 Proposal for a directive – amending act Article 1 – point 4 Directive 2006/116/EC Article 10 a – paragraph 1 1.  In the absence of clear indications to the contrary, a contract, concluded before [insert date before which Member States are to transpose the amending directive, as mentioned in Article 2 below], whereby a performer has transferred or assigned his rights in the fixation of his performance to a phonogram producer (hereinafter: a "contract on transfer or assignment"), shall be deemed to continue to produce its effects beyond the moment at which, by virtue of Article 3 (1) and (2) in their version before amendment by Directive [// insert: Nr. of this amending directive], the performer and the phonogram producer would be no longer protected in regard of, respectively, the fixation of the performance and the phonogram. 1.  In the absence of clear contractual indications to the contrary, a contract on transfer or assignment concluded before [insert date as mentioned in Article 2(1) below] shall be deemed to continue to produce its effects beyond the moment at which, by virtue of Article 3 (1) in its version before amendment by Directive [// insert: Nr. of this amending directive], the performer would be no longer protected. Amendment 66 Proposal for a directive – amending act Article 1 – point 4 Directive 2006/116/EC Article 10 a – paragraph 2 2.  Paragraphs 3 to 6 of this article shall apply to contracts on transfer or assignment which continue to produce their effects beyond the moment at which, by virtue of Article 3 (1) and (2) in their version before amendment by Directive [// insert: Nr. of this amending directive]/EC, the performer and the phonogram producer would be no longer protected in regard of, respectively, the fixation of the performance and the phonogram. deleted. Amendment 67 Proposal for a directive – amending act Article 1 – point 4 Directive 2006/116/EC Article 10 a – paragraph 3 3.  Where a contract on transfer or assignment gives the performer a right to claim a non recurring remuneration, the performer shall have the right to obtain an annual supplementary remuneration from the phonogram producer for each full year in which, by virtue of Article 3 (1) and (2) in its version before amendment by Directive [// insert: Nr. of this amending directive]/EC, the performer and the phonogram producer would be no longer protected in regard of, respectively, the fixation of the performance and the phonogram. deleted. Amendment 68 Proposal for a directive – amending act Article 1 – point 4 Directive 2006/116/EC Article 10 a – paragraph 4 4.  The overall amount to be dedicated by a phonogram producer to payments of the supplementary remuneration referred to in paragraph 3 shall correspond to at least 20 percent of the revenues which he has derived, during the year preceding that for which the said remuneration is paid, from the reproduction, distribution and making available of those phonograms in regard of which, by virtue of Article 3 (1) and (2) in their version before amendment by Directive [// insert: Nr. of this amending directive]/EC, the performer and the phonogram producer would be no longer protected on 31 December of the said year. Member States may provide that a phonogram producer whose total annual revenue, during the year preceding that for which the said remuneration is paid, does not exceed a minimum threshold of € 2 million, shall not be obliged to dedicate at least 20 percent of the revenues which he has derived, during the year preceding that for which the said remuneration is paid, from the reproduction, distribution and making available of those phonograms in regard of which, by virtue of Article 3 (1) and (2) in their version before amendment by Directive [// insert: Nr. of this amending directive]/EC, the performer and the phonogram producer would be no longer protected on 31 December of the said year. deleted. Amendments 23, 28 and 69 Proposal for a directive – amending act Article 1 – point 4 Directive 2006/116/EC Article 10 a – paragraph 5 5.  Member States may regulate whether and to what extent administration by collecting societies of the right to obtain an annual supplementary remuneration referred to in paragraph 3 may be imposed. deleted. Amendments 23, 28 and 70 Proposal for a directive – amending act Article 1 – point 4 Directive 2006/116/EC Article 10 a – paragraph 6 – subparagraph 1 6.  If, after the moment at which, by virtue of Article 3 (1) and (2) in their version before amendment by Directive [// insert: Nr. of this amending directive]/EC, the performer and the phonogram producer would be no longer protected in regard of, respectively, the fixation of the performance and the phonogram, the phonogram producer ceases to offer copies of the phonogram for sale in sufficient quantity or to make it available to the public, by wire or wireless means, in such a way that members of the public may access them from a place ant at a time individually chosen by them, the performer may terminate the contract on transfer or assignment. Where a phonogram contains the fixation of the performances of a plurality of performers, they may terminate their contracts on transfer or assignment only jointly. If the contract on transfer or assignment is terminated pursuant to sentences 1 or 2, the rights of the phonogram producer in the phonogram shall expire. deleted. Amendment 71 Proposal for a directive – amending act Article 1 – point 4 Directive 2006/116/EC Article 10 a – paragraph 6 a 6a.  Member States may provide that contracts on transfer or assignment whereby a performer is entitled to recurring payments and concluded before ... [insert date in Article 2(1) of the amending Directive] can be modified following the 50th year after the phonogram was lawfully published, or failing such publication, the 50th year after it was lawfully communicated to the public. Amendment 74 Proposal for a directive – amending act Directive 2006/116/EC Article 1 a (new) Article 1a The Commission shall submit to the European Parliament, the Council and the Economic and Social Committee not later than [3] years from ... [insert the date in Article 2(1)] a report on the application of this Directive in the light of the development of the digital market and, where appropriate, it shall submit a proposal to further amend Directive 2006/116/EC. Amendment 75 Proposal for a directive – amending act Directive 2006/116/EC Article 1 b (new) Article 1b The Commission shall carry out an assessment of the possible need for an extension of the term of protection of rights to performers and producers in the audiovisual sector and it shall report on the outcome of such an assessment to the European Parliament, the Council and the Economic and Social Committee not later than 1 January 2010. If appropriate, the Commission shall submit a proposal to amend Directive 2006/116/EC, Amendment 76 Proposal for a directive – amending act Directive 2006/116/EC 1.  Member States shall adopt and publish, by at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive. 1.  Member States shall bring into force, by... [2 years after entry into force of this Directive] at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions. They shall apply those provisions from […]. Amendment 78 Proposal for a directive – amending act Directive 2006/116/EC Article 3 This Directive shall enter into force on the day following that of its publication in the Official Journal of the European Union. This Directive shall enter into force 20 days following that of its publication in the Official Journal of the European Union.