Procedure : 2008/0157(COD)
Document stages in plenary
Document selected : A6-0070/2009

Texts tabled :

A6-0070/2009

Debates :

PV 22/04/2009 - 17
CRE 22/04/2009 - 17

Votes :

PV 23/04/2009 - 8.8
CRE 23/04/2009 - 8.8
Explanations of votes
Explanations of votes

Texts adopted :

P6_TA(2009)0282

REPORT     ***I
PDF 276kWORD 544k
18.2.2009
PE 414.350v02-00 A6-0070/2009

on the proposal for a directive of the European Parliament and of the Council amending Directive 2006/116/EC of the European Parliament and of the Council on the term of protection of copyright and related rights

(COM(2008)0464 – C6‑0281/2008 – 2008/0157(COD))

Committee on Legal Affairs

Rapporteur: Brian Crowley

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
 EXPLANATORY STATEMENT
 OPINION of the Committee on Industry, Research and Energy
 OPINION of the Committee on the Internal Market and Consumer Protection
 OPINION of the Committee on Culture and Education
 PROCEDURE

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a directive of the European Parliament and of the Council amending Directive 2006/116/EC of the European Parliament and of the Council on the term of protection of copyright and related rights

(COM(2008)0464 – C6‑0281/2008 – 2008/0157(COD))

(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.

Amendment  1

Proposal for a directive – amending act

Recital 5

Text proposed by the Commission

Amendment

(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 with regard to the fixation of performances 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.

Justification

The creative contribution of all performers should be recognised and reflected in the modification of the directive. To achieve this goal, the scope of the proposal should be extended so that audiovisual performers could also benefit from the extended term of protection; therefore the distinction between fixation of the performance in a phonogram or in another way is proposed to be deleted (linked to the amendment on Article 3 - paragraph 1 of Directive 2006/116/EC).

Amendment  2

Proposal for a directive – amending act

Recital 5 a (new)

Text proposed by the Commission

Amendment

 

(5a) The Commission should launch an impact assessment procedure in relation to the situation of the European audiovisual sector in order to consider the need for an extension of the term of protection of copyright to producers and broadcasters in the audiovisual sector; that procedure should be completed by 1 January 2010 so that a proposal for a new directive may be presented before June 2010.

Amendment  3

Proposal for a directive – amending act

Recital 7 a (new)

Text proposed by the Commission

Amendment

(7a) The Commission should ensure that performers and session musicians will not be obliged by contractual arrangements with any third parties, such as record companies, to transfer to those third parties the revenues that derive from the term of extension from 50 to 95 years.

Amendment  4

Proposal for a directive – amending act

Recital 8

Text proposed by the Commission

Amendment

(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 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") as well as some other performers who appear in the credits ("featured performers") usually transfer their exclusive rights against a one-off payment (non recurring remuneration).

Justification

Some performers whose names appear in the credits “featured performers” transfer their exclusive rights against a one-off payment. These performers should also benefit from the supplementary remuneration.

Amendment 5

Proposal for a directive – amending act

Recital 9

Text proposed by the Commission

Amendment

(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.

(9) Member States should remain free to adopt provisions on the interpretation, adaptation, termination and further execution of contracts governing the transfer or assignment of the rights of the performer in the fixation of his performance to a phonogram producer concluded before the extension of the term of protection resulting from this Directive.

Justification

It does not appear suitable that the proposed changes to Directive 2006/116/EC modify Member States' rules on the interpretation, adaptation, termination and further execution of contracts on the transfer or assignment of performers' rights to a phonogram producer.  Therefore, national rules on how performers' rights are transferred, assigned and how the contracts on such assignments and transfers are terminated should govern the exercise of the 'use it or lose it' clause as foreseen in Article 10a, paragraph 6.

Amendment  6

Proposal for a directive – amending act

Recital 9 a (new)

Text proposed by the Commission

Amendment

 

(9a) In order to ensure that performers, rather than record producers, benefit from the extended term of protection, this Directive should provide that any contract in force assigning any extension of the term of protection shall have no effect as regards the extension of the term of protection from 50 years to the lifetime of the performer.

Justification

This amendment is designed to ensure that the additional term actually benefit performers. Existing contractual arrangements must not therefore be treated as assigning the additional term to a phonogram producer. In order to avoid co-ordination problems with respect to the additional term, management of the rights is to be entrusted to collecting societies. This will require collecting societies to administer the reproduction and distribution rights in relation to fixations of performances for the extended term. Given that collecting societies will allow for any operator to exploit the performance, there will be no need for a 'use it or lose it provision'. Given that collecting societies will keep details of the performers whose performances are embodied on phonograms, concerns about lack of clarity as to when a work falls into the public domain can be avoided.

Amendment  7

Proposal for a directive – amending act

Recital 12

Text proposed by the Commission

Amendment

(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

Justification

Tous les artistes interprètes ou exécutants devraient profiter du fonds. Les recettes à verser aux artistes concernés en vertu de cette mesure transitoire sont proportionnelles aux recettes du producteur. Le versement sera donc moins important en cas de recette moindre du producteur.

Amendment  8

Proposal for a directive – amending act

Recital 14 a (new)

Text proposed by the Commission

Amendment

 

 

(14a) In order to rebalance contracts whereby performers transfer their exclusive rights, on a royalty basis, to a phonogram producer, a further condition attached to term extension 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.

Justification

This provision is essential for performers to enjoy all the royalties due to them for the extended period, against a refusal by labels, on grounds that advance payments to the artists have still not been recouped. Without this additional provision, the extension of the term of protection may ultimately only be beneficial to a minority of featured artists.

Amendment  9

Proposal for a directive – amending act

Recital 14 b (new)

Text proposed by the Commission

Amendment

 

(14b) Likewise, in order to ensure that performers that transfer their exclusive rights in return for a recurring payment or remuneration to a producer benefit fully from the extended term of protection, Member States should ensure that the royalty or remuneration rate, unencumbered by deductions for advance payments or contractually defined deductions, is paid to performers during the extended period.

Justification

This provision is essential for performers to enjoy all the royalties due to them for the extended period, against a refusal by labels, on grounds that advance payments to the artists have still not been recouped. Without this additional provision, the extension of the term of protection may ultimately only be beneficial to a minority of featured artists.

Amendment  10

Proposal for a directive – amending act

Recital 17

Text proposed by the Commission

Amendment

(17) Since the objectives of the proposed accompanying measures cannot be sufficiently achieved by the Member States, as national measures in that field would either lead to distortion of the conditions of competition or affect the scope of exclusive rights of the phonogram producer which are defined by Community legislation and can therefore, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this directive does not go beyond what is necessary in order to achieve those objectives.

(17) Since the objectives of the proposed accompanying measures cannot be sufficiently achieved by the Member States, as national measures in that field would either lead to distortion of the conditions of competition or affect the scope of exclusive rights of the phonogram producer which are defined by Community legislation and can therefore, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this directive does not go beyond what is necessary in order to achieve those objectives. Among the accompanying transitional measures should also include the mandatory collective exercise of the rights of performers and phonogram producers concerning on-demand services by broadcasters of their radio or television productions of which music from lawfully published phonograms is an integral part. This system of collective rights management complements the remuneration regime for the broadcasting of lawfully published phonograms under Article 8(2) of Directive 2006/115/EC and guarantees that, throughout the full term of protection of lawfully published phonograms, the relevant performers and phonogram producers receive a fair share of the remuneration also for the on-demand use of broadcast productions.

Justification

The extension of the term of protection for performers and phonogram producers aggravates the administrative difficulties for radio and television broadcasters to clear the necessary on-demand rights for their productions, in particular their archives. The clearance of rights for the broadcasting of lawfully published phonograms is already subject to payment of equitable remuneration (Article 8(2) of the Rental and Lending Directive 2006/115/EC), which payment is shared between the relevant performers and phonogram producers. In order to achieve both efficient rights management, as encouraged by Recital 26 of the 2001 Copyright (InfoSoc) Directive, and a fair share for all right-holders also for the on-demand use of broadcast productions, it is therefore appropriate to complement this remuneration regime by a mandatory collective licensing scheme for such use.

Amendment  11

Proposal for a directive – amending act

Recital 19

Text proposed by the Commission

Amendment

(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 harmonization 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. In order to ensure the removal of such impediments, all such works in protection as at the [date of entry into force of this Directive] should have the same harmonised term of protection in all Member States.

 

 

Justification

The purpose of the Commission proposal is to harmonise the provisions on co-written works in order to remove existing obstacles to the free movement of goods and services and facilitate multi-territorial licensing. The amendment seeks clarification that the provision should take effect as of the entry into force of the Directive in relation to all works still protected in the EU at that time.

Amendment  12

Proposal for a directive – amending act

Recital 19 a (new)

Text proposed by the Commission

Amendment

(19a) If necessary, Member States should ensure that the extension of the term of protection of performers' rights is accompanied by legislative provisions that offer protection to performers in the form of fair contractual terms in respect of transfer or assignment.

Justification

There is no need for harmonisation at EU-level on the terms of contact on transfer or assignment; however, the attention of the Member States should be drawn to the fact that usually session performers do not have a real negotiating power therefore the terms of such contracts are usually one-sided.

Amendment  13

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 2

 

Text proposed by the Commission

Amendment

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.

2. Paragraphs 3 to 7 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.

Justification

This provision is essential for performers to enjoy all the royalties due to them for the extended period, against a refusal by labels, on grounds that advance payments to the artists have still not been recouped. Without this additional provision, the extension of the term of protection may ultimately only be beneficial to a minority of featured artists.

Amendment  14

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 4 – subparagraph 2

 

Text proposed by the Commission

Amendment

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

Justification

Tous les artistes interprètes ou exécutants devraient profiter du fonds. Les recettes à verser aux artistes concernés en vertu de cette mesure transitoire sont proportionnelles aux recettes du producteur. Le versement sera donc moins important en cas de recette moindre du producteur.

Amendment  15

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 5

 

Text proposed by the Commission

Amendment

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.

5. Member States shall ensure that the right to obtain an annual supplementary remuneration referred to in paragraph 3 is administered by the collecting society.

 

With respect to the administration of rights concerning the on-demand services by broadcasters of their radio or television productions incorporating music from lawfully published phonograms, Member States shall ensure that the rights of performers and phonogram producers to grant or refuse authorisation for such use may be exercised only through the collecting society which has been established for collecting and distributing the remuneration for broadcasting such phonograms.

Justification

For the sake of simplifying the administrative procedures, the collecting societies should be entrusted with the administration of the annual supplementary remuneration. (Linked to amendment on Recital 13.).

The extension of the term of protection for performers and phonogram producers aggravates the administrative difficulties for radio and television broadcasters to clear the necessary on-demand rights for their productions, in particular their archives. The clearance of rights for the broadcasting of lawfully published phonograms is already subject to payment of equitable remuneration (Article 8(2) of the Rental and Lending Directive 2006/115/EC), which payment is shared between the relevant performers and phonogram producers. In order to achieve both efficient rights management, as encouraged by Recital 26 of the 2001 Copyright (InfoSoc) Directive, and a fair share for all right-holders also for the on-demand use of broadcast productions, it is therefore appropriate to complement this remuneration regime by a mandatory collective licensing scheme for such use.

Amendment  16

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 5 a (new)

 

Text proposed by the Commission

Amendment

5a. Collecting societies shall distribute those remunerations on an individual basis and taking into account the use of each performer’s performances.

Justification

It is essential that collecting societies distribute in the most precise way and on individual basis the remuneration collected on behalf of performers.

Amendment  17

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 6 – subparagraph 1

 

Text proposed by the Commission

Amendment

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 and 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.

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 and 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 in accordance with the applicable national laws. 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.

Justification

The obligation for performers to act jointly is not realistic.

Amendment  18

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 6 – subparagraph 2

 

Text proposed by the Commission

Amendment

If, one year 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 is not made available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them, the rights of the phonogram producer in the phonogram and the rights of the performers in relation to the fixation of their performance shall expire.

If, five years 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 is not made available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them, the rights of the phonogram producer in the phonogram and the rights of the performers in relation to the fixation of their performance shall expire.

Justification

Tough the introduction of the ‘use it or loose it’ clause is welcome, it should be made more flexible. If the rights are reverted to the performer, this performer should be given a fair chance to have his performance exploited before loosing again the rights. Therefore a more reasonable period of time, 5 years, should be given to the performers to make the new exploitation possibility feasible.

Amendment  19

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 6 a (new)

 

Text proposed by the Commission

Amendment

6a. 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 after the moment at which, by virtue of Article 3(1) before amendment by Directive [insert the number of this amending directive]/EC, the performer would be no longer protected.

Justification

This provision is essential for performers to enjoy all the royalties due to them for the extended period, against a refusal by labels, on grounds that advance payments to the artists have still not been recouped. Without this additional provision, the extension of the term of protection may ultimately only be beneficial to a minority of featured artists.

Amendment  20

Proposal for a directive – amending act

Article 2 a (new)

Text proposed by the Commission

Amendment

 

 

Article 2a

 

No later than ... *, and every four years thereafter, the Commission shall submit to the European Parliament, the Council and the European Economic and Social Committee a report on the application and effects of this Directive in which inter alia, on the basis of specific information supplied by the Member States, consideration is given to the effectiveness of the measures taken, when this Directive was revised, in the light of the objectives pursued. The Commission shall examine in particular whether extension of the duration of rights has had a positive effect on the social situation of performers and on musical output and whether additional measures appear appropriate in order to attain those objectives.

 

* Three years after the deadline for transposition of this Directive.


EXPLANATORY STATEMENT

The rapporteur supports the Commission proposal which aims to improve the social situation of performers, and in particular sessions musicians, taking into account that performers are increasingly outliving the existing 50 year period of protection for their performances.

The main proposal of Directive involve extending the term of protection for performers and phonogram producers countries from 50 to 95 years but they also provide for several accompanying measures such as establishing a fund for session musicians and introducing “use it or lose it” clauses in contracts between performers and phonogram producers.

Legally, the proposals involve amending Directive 2006/116/EC of 12 December 2006 on the term of protection of copyright and certain related rights. That Directive codified and superseded the earlier Directive 93/98/EEC on the term of protection of copyright and certain related rights (often referred to as the “Term Directive”) without making substantive changes.

The intention of the proposals is to benefit both performers and record producers.

The extended term would benefit performers who could continue earning money over an additional period. A 95-year term would bridge the income gap that performers face when they turn 70, just as their early performances recorded in their 20s would lose protection. They would continue to be eligible for broadcast remuneration, remuneration for performances in public places, such as bars and discotheques, and compensation payments for private copying of their performances.

The extended term would also benefit the record producers. It would generate additional revenue from the sale of records in shops and on the Internet.

The proposals also put forward a uniform way of calculating the term of protection, when it concerns a musical composition, containing the contributions of several authors as music is overwhelmingly co-written; EU-wide, the term of protection of a musical composition would expire 70 years after the death of the last surviving author, be it the author of the lyrics or the composer of the music.

Commission’s proposal to apply a uniform method of calculating the term of protection of musical compositions with lyrics whereby, when a musical composition is published with lyrics, the term of protection will be calculated from the death of the last surviving person: the author of the lyrics or the composer of the music.

The current differences in term of protection, particularly between Europe and the US, cause legal uncertainty and piracy especially in the digital environment where there are no boundaries and the works can be used at the same moment in different countries. It is an undeniable fact that different terms of protection could help to develop the piracy: performances that have fallen into the public domain in one country can be distributed online from there to other countries where they are still protected. Finally, Europe is able to protect its artists, one the most important expression of its cultural diversity.

Equalising term of protection with the U.S. would be an excellent opportunity for Europe economy to further the progress of the EU Lisbon Strategy for growth and jobs, which recognised the particular importance of promoting the creative industries. At a time when creative industries based on intellectual property are generating an increasing percentage of GDP in the EU, the current disparity between the term of protection in the EU and the US clearly puts European record companies and performers at a competitive disadvantage.

If the European recording industry is to be truly competitive in the global marketplace, the EU needs to close the gap by equalising term of protection at 95 years to provide a level playing field with Europe’s main trading partner. A shorter period of time would not achieve this.

Furthermore, the current increase of the life expectancy of the population during the last years makes the extension of the protection of performers’ rights even more essential for the artists concerned. Unfortunately, many performers know popularity and success especially when they are young so it is essential that they receive the right economic reward when they are old every time their work is communicated to the public.

Besides, an extended term would encourage cultural diversity: with an unchanged term, old performances gradually loosing copyright protection would inevitably be favoured to the detriment of contemporary creations. Furthermore, the latter would inevitably seek to please those markets where protection is longer, ignoring the call for local, diversified, content.

Finally, it must also be understood that the lack of proper status makes it extremely difficult for performers in Europe to make a living from their creations, regardless of the size of their contribution to the economy of culture in EU. The vast majority of performers has very little access to social security, unemployment compensation or health and safety protection and is generally confronted with widespread unfair contractual practices. In this context, the income generated by the intellectual property rights represents a vital source of income for performers.


OPINION of the Committee on Industry, Research and Energy (16.12.2008)

for the Committee on Legal Affairs

on the proposal for a directive of the European Parliament and of the Council amending Directive 2006/116/EC of the European Parliament and of the Council on the term of protection of copyright and related rights

(COM(2008)0464 – C6‑0281/2008 – 2008/0157(COD))

Rapporteur: Erna Hennicot-Schoepges

SHORT JUSTIFICATION

The draftswoman welcomes the proposal by the Commission on extending the term of protection of related rights and creating additional transitory safeguard measures. The proposal recognises the importance of performers’ creative and artistic contribution which needs to be properly reflected upon in the term of protection.

The draftswoman, however, is of the opinion that, in order to better achieve those objectives, the proposal could be further amended to take into account the economic and social reality and recent technological developments; and therefore proposes a set of amendments along the following main lines:

(i) extension of the scope by including audiovisual performers;

(ii) deletion of the exemption for small recorders from contributing to the fund set aside for session musicians;

(iii) simplification of the administration of this fund;

(iv) more flexibility for the ‘use it or loose it’ clause;

(v) further assessment of the making available on-line.

(i)   Extension of the scope by including audiovisual performers

The creative contribution of all performers should be recognised and reflected in the modification of the directive. To achieve this goal, the scope of the proposal should be extended so that audiovisual performers could also benefit from the extended term of protection; therefore the distinction between fixation of the performance in a phonogram or in another way is proposed to be deleted. Also, the same starting dates from which the duration of protection is calculated for performers’ rights and for producers’ rights should apply (as foreseen under Article 3, paragraph 2). (Related amendments: Amendment 1 of the draft opinion on Recital 5; Amendment 2 of the draft opinion on Recital 7; and Amendment 10 of the draft opinion on Article 3, paragraph 1 of Directive 2006/116/EC.)

(ii) Deletion of the exemption for small recorders from contributing to the fund set aside for session musicians

The Commission proposed an exemption for small record producers from setting aside at least 20 percent of revenues in order to contribute to the fund created for session musicians. Such exemption would create an unfair situation for the performers and would not strike a fair balance between the interest of performers and of small producers. In addition, larger record producers might also try to avoid paying supplementary remuneration by signing licensing contracts with smaller phonogram producers. Therefore this exemption is proposed to be deleted. (Related amendments: Amendment 4 of the draft opinion on Recital 12; and Amendment 12 of the draft opinion on Article 10 a (new), paragraph 4, subparagraph 2 of Directive 2006/116/EC.)

(iii) Simplification of the administration of the above fund

In order to simplify the administrative procedures, the collecting societies should be entrusted with the administration of the above fund. (Related amendments: Amendment 5 of the draft opinion on Recital 13; Amendment 6 of the draft opinion on Recital 14 a (new); and Amendment 13 of the draft opinion on Article 10 a (new), paragraph 5 of Directive 2006/116/EC.)

(iv) More flexibility for the ‘use it or loose it’ clause

Though the introduction of the ‘use it or loose it’ clause is welcome, it should be made more flexible. If the rights are reverted to the performer, this performer should be given a fair chance to have his performance exploited before loosing again the rights. Therefore a more reasonable period of time, 5 years, should be given to the performers to make the new exploitation possibility feasible. (Related amendment: Amendment 14 of the draft opinion on Article 10 a (new), paragraph 6, subparagraph 2.)

(v)  Further assessment of on-line making available

With the increase of use of and demand for on-line services, the making available of performances on-line should be studied in more detail. The Commission should be encouraged to evaluate the current legal and economic situation and assess further the impacts of this option. In the frame of such assessment particular attention should be given to the practical administration of the claim for equitable remuneration paid for the performers (such as how to quantify the financial benefits; and who should pay this remuneration); rules and obligations stemming from the relevant international conventions should also be carefully considered. (Related amendment: Amendment 9 on Recital 19 c (new)).

AMENDMENTS

The Committee on Industry, Research and Energy calls on the Committee on Legal Affairs, as the committee responsible, to incorporate the following amendments in its report:

Amendment  1

Proposal for a directive – amending act

Recital 9

Text proposed by the Commission

Amendment

(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.

(9) In order to ensure that performers, rather than record producers, benefit from the extended term of protection, this Directive should provide that any contract in force assigning any extension of the term of protection shall have no effect as regards the extended protection term from 50 years to the lifetime of the performer.

Justification

This amendment is designed to ensure that the additional term actually benefit performers. Existing contractual arrangements must not therefore be treated as assigning the additional term to a phonogram producer. In order to avoid co-ordination problems with respect to the additional term, management of the rights is to be entrusted to collecting societies. This will require collecting societies to administer the reproduction and distribution rights in relation to fixations of performances for the extended term. Given that collecting societies will allow for any operator to exploit the performance, there will be no need for a 'use it or lose it provision'. Given that collecting societies will keep details of the performers whose performances are embodied on phonograms, concerns about lack of clarity as to when a work falls into the public domain can be avoided.

Amendment  2

Proposal for a directive – amending act

Recital 12

Text proposed by the Commission

Amendment

(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

Justification

The proposed exception creates an unfair situation for the performers and does not strike a fair balance of between the interest of performers and of small producers. In addition, larger record companies might also try to avoid paying supplementary remuneration by signing licensing contracts with smaller phonogram producers. (Linked to the amendment on Article 10 a (new), paragraph 4, subparagraph 2 of Directive 2006/116/EC.)

Amendment  3

Proposal for a directive – amending act

Recital 13

Text proposed by the Commission

Amendment

(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 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.

Justification

The administration of those monies should be entrusted to collecting societies in order for the said monies to be effectively assigned to the beneficiaries indicated in the original proposal of the European Commission, i.e. session musicians.

Amendment  4

Proposal for a directive – amending act

Recital 14 a (new)

Text proposed by the Commission

Amendment

 

(14a) Part of the first accompanying transitional measure should be the mandatory collective exercise of the rights of performers and phonogram producers concerning on-demand services by broadcasters of their radio or television productions of which music from lawfully published phonograms is an integral part. The system of collective rights management complements the remuneration regime for the broadcasting of lawfully published phonograms under Article 8(2) of Directive 2006/115/EC and guarantees that, throughout the full term of protection of lawfully published programmes, the relevant performers and phonogram producers also receive a fair share of the remuneration for the on-demand use of broadcast production.

Justification

For the sake of simplifying the administrative procedures for, among others, radio and television broadcasters to clear the necessary on-demand rights for their productions, the collecting societies should be entrusted with the administration of the annual supplementary remuneration. (Linked to amendment on Article 10 a (new), paragraph 5 of Directive 2006/116/EC.)

Amendment  5

Proposal for a directive – amending act

Recital 14 b (new)

Text proposed by the Commission

Amendment

(14b) This Directive should provide for the re-assessment of the legal protection of performers. The digital environment provides new possibilities for exploitation of protected content, which should benefit all rights holders. To achieve that goal, impact assessments should be conducted at the Community level and by Member States in order to estimate how the legal protection of performers should be improved, notably with the introduction of an exclusive right of making available to the public to the benefit of performers, for the exploitation of their performances in such a way that members of the public may access them from a place and at a time individually chosen by them (i.e. on-demand services). In the framework of such assessments, particular attention should be given to the practical administration of claims for equitable remuneration for performers (such as quantification of financial benefits; and responsibility for remuneration). Rules and obligations laid down in the relevant international conventions should also be carefully considered.

Amendment  6

Proposal for a directive – amending act

Recital 14 c (new)

Text proposed by the Commission

Amendment

(14c) In order to rebalance contracts under which performers transfer their exclusive rights, on a royalty basis, to a phonogram producer, a further condition attached to term extension should be a 'clean slate' for those performers who have assigned those 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 unencumbered by advance payments or contractually defined deductions is paid to performers during the extended period.

Justification

This provision is essential for performers to enjoy all the royalties due to them for the extended period, against a refusal by labels, on grounds that advance payments to the artists have still not been recouped. Without this additional provision, the extension of the term of protection may ultimately only be beneficial to a minority of featured artists.

Amendment  7

Proposal for a directive – amending act

Recital 19 a (new)

Text proposed by the Commission

Amendment

(19a) If necessary, Member States should ensure that the extension of the term of protection of performers' rights is accompanied by legislative provisions that offer protection to performers for fair contractual terms on transfer or assignment.

Amendment  8

Proposal for a directive – amending act

Article 1 – point 1

Directive 2006/116/EC

Article 3 – paragraph 1 - sentence 2

 

Text proposed by the Commission

Amendment

(1) The second sentence of Article 3(1) is replaced by the following:

(1) At the end of Article 3(1) the following sentence shall be added:

"However,

"However, if at the end of this period, a performer is alive, the rights of that performer shall continue to be protected in the performer's lifetime."

- 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 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.

 

Justification

The extension should apply to performers only, and only until they die. This proposal mirrors the current Greek law, which has not been harmonized. The Commission has indicated that it has declined to bring enforcement proceedings against Greece, because it regards the Greek provision as preferable to the current harmonized law. No extension is justified for phonogram producers, a 50 year fixed term being more than sufficient time in which to recoup any investment.

Amendment  9

Proposal for a directive – amending act

Article 1 – point 2

Directive 2006/116/EC

Article 3 – paragraph 2 - sentences 2 and 3

 

Text proposed by the Commission

Amendment

(2) In the second and third sentence of Article 3(2) the cipher "50" is replaced by the cipher "95"

deleted

Justification

In order to ensure that phonograms are exploited during the fifty year term of protection for the benefit of performers, an additional qualification is added to the rights of phonogram producers. Where a published phonogram ceases to be available to the public for a period of three years, the performers shall be entitled to reclaim both the rights in the performances embodied and the rights in the phonograms (without which it would not be possible to exploit the former rights). Where all performers act in concert, these rights vest in the performers, which will enable them either to enter into a new exploitation contract, to make the fixation available or to place the fixation in the public domain. Where the performers are unable or unwilling to act in concert, the rights must be vested in a collecting society, which will distribute revenues to the various performers equitably.

Amendment  10

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 1

 

Text proposed by the Commission

Amendment

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. 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 other than to a collecting society in the fixation of his performance to a phonogram producer (hereinafter: a "contract of transfer or assignment"), shall be deemed not to produce any effect beyond the moment at which, by virtue of Article 3 (1) in their version before amendment by Directive [// insert: Nr. of this amending directive], the performer would be no longer protected in regard of, respectively, the fixation of the performance.

Justification

This amendment is designed to ensure that the additional term actually benefit performers. Existing contractual arrangements must not therefore be treated as assigning the additional term to a phonogram producer. In order to avoid co-ordination problems with respect to the additional term, management of the rights is to be entrusted to collecting societies. This will require collecting societies to administer the reproduction and distribution rights in relation to fixations of performances for the extended term. Given that collecting societies will allow for any operator to exploit the performance, there will be no need for a 'use it or lose it provision'. Given that collecting societies will keep details of the performers whose performances are embodied on phonograms, concerns about lack of clarity as to when a work falls into the public domain can be avoided.

Amendment  11

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 2

 

Text proposed by the Commission

Amendment

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.

2. Where a performer has not transferred the management of his rights to a collecting society as regards the additional term of protection that is conferred as a result of this Directive, the collecting society which manages rights of the same category shall be deemed to be mandated to manage his rights. The performer shall retain his moral rights.

Justification

This amendment is designed to ensure that the additional term actually benefit performers. Existing contractual arrangements must not therefore be treated as assigning the additional term to a phonogram producer. In order to avoid co-ordination problems with respect to the additional term, management of the rights is to be entrusted to collecting societies. This will require collecting societies to administer the reproduction and distribution rights in relation to fixations of performances for the extended term. Given that collecting societies will allow for any operator to exploit the performance, there will be no need for a 'use it or lose it provision'. Given that collecting societies will keep details of the performers whose performances are embodied on phonograms, concerns about lack of clarity as to when a work falls into the public domain can be avoided.

Amendment  12

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 2 a (new)

 

Text proposed by the Commission

Amendment

2a. Where a performer has transferred his exclusive rights for a recurring payment, no advance payments nor contractually defined deductions shall be deducted from the recurring payment due to the performer.

Amendment  13

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 3

 

Text proposed by the Commission

Amendment

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.

3. The collecting society shall distribute the revenues received from the exploitation of phonograms equitably, and in such a manner as to reflect the nature and extent of the contribution of each performer whose protected performance is embodied in a phonogram.

Justification

This amendment is designed to ensure that the additional term actually benefit performers. Existing contractual arrangements must not therefore be treated as assigning the additional term to a phonogram producer. In order to avoid co-ordination problems with respect to the additional term, management of the rights is to be entrusted to collecting societies. This will require collecting societies to administer the reproduction and distribution rights in relation to fixations of performances for the extended term. Given that collecting societies will allow for any operator to exploit the performance, there will be no need for a 'use it or lose it provision'. Given that collecting societies will keep details of the performers whose performances are embodied on phonograms, concerns about lack of clarity as to when a work falls into the public domain can be avoided.

Amendment  14

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10 a – paragraph 4 – subparagraph 2

 

Text proposed by the Commission

Amendment

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

Justification

The proposed exception creates an unfair situation for the performers and does not strike a fair balance of between the interest of performers and of small producers. In addition, larger record companies might also try to avoid paying supplementary remuneration by signing licensing contracts with smaller phonogram producers. (Linked to the amendment on Recital 12.)

Amendment  15

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 5

 

Text proposed by the Commission

Amendment

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.

5. Member States shall ensure that the right to obtain an annual supplementary remuneration referred to in paragraph 3 is administered by the collecting society.

Justification

For the sake of simplifying the administrative procedures, the collecting societies should be entrusted with the administration of the annual supplementary remuneration. (Linked to amendment on Recital 13.)

Amendment  16

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 5 a (new)

 

Text proposed by the Commission

Amendment

 

5a. With respect to the exercise of rights concerning on-demand services by broadcasters relating to their radio or television productions incorporating music from lawfully published phonograms, Member States shall ensure that the rights of performers and phonogram producers to grant or refuse authorisation for such use shall be exercised solely through the collecting society which has been established for collecting and distributing the remuneration for broadcasting such phonograms.

Justification

Although it is possible for the rights of copyright holders to fair remuneration to be cleared through the relevant collecting society, there is no corresponding legal obligation in relation to the associated rights of performers.

The proposed provision would make it easier for broadcasters to clear the relevant rights, ensure the rightholders received fair remuneration and allow Europe's citizens access to culturally, historically and politically important material from broadcasters' archives.

Amendment  17

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 6 – subparagraph 1

 

Text proposed by the Commission

Amendment

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.

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 and 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 jointly or individually in accordance with the applicable national laws. 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.

Amendment  18

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 6 – subparagraph 2

 

Text proposed by the Commission

Amendment

If, one year 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 is not made available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them, the rights of the phonogram producer in the phonogram and the rights of the performers in relation to the fixation of their performance shall expire.

If, five years 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 is not made available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them, the rights of the phonogram producer in the phonogram and the rights of the performers in relation to the fixation of their performance shall expire.

Justification

Tough the introduction of the ‘use it or loose it’ clause is welcome, it should be made more flexible. If the rights are reverted to the performer, this performer should be given a fair chance to have his performance exploited before loosing again the rights. Therefore a more reasonable period of time, 5 years, should be given to the performers to make the new exploitation possibility feasible.

Amendment  19

Proposal for a directive – amending act

Article 1 – point 4 a (new)

Directive 2006/116/EC

Article 10a a (new)

 

Text proposed by the Commission

Amendment

(4a) The following Article shall be inserted:

 

"Article 10aa

 

Where a performer has transferred or assigned the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them, of the fixation of his performance, that performer shall retain the right to obtain an equitable remuneration to be paid by the user for the making available to the public of his fixed performance.

 

The right of the performer to obtain an equitable remuneration for the making available to the public of his performance cannot be waived.

 

This remuneration is collected and administered by a performers’ collecting society."

Justification

A remuneration to the performers has to be recognised by those who make the performance available to the public.

PROCEDURE

Title

Term of protection of copyright and related rights

References

COM(2008)0464 – C6-0281/2008 – 2008/0157(COD)

Committee responsible

JURI

Opinion by

       Date announced in plenary

ITRE

2.9.2008

 

 

 

Drafts(wo)man

       Date appointed

Erna Hennicot-Schoepges

25.9.2008

 

 

Discussed in committee

13.11.2008

 

 

 

Date adopted

11.12.2008

 

 

 

Result of final vote

+:

–:

0:

19

10

2

Members present for the final vote

John Attard-Montalto, Jan Březina, Jorgo Chatzimarkakis, Dragoş Florin David, Den Dover, Nicole Fontaine, Adam Gierek, Norbert Glante, András Gyürk, Fiona Hall, Erna Hennicot-Schoepges, Reino Paasilinna, Vladimír Remek, Teresa Riera Madurell, Britta Thomsen, Catherine Trautmann, Claude Turmes, Nikolaos Vakalis

Substitute(s) present for the final vote

Etelka Barsi-Pataky, Ivo Belet, Manuel António dos Santos, Neena Gill, Edit Herczog, Vladimir Urutchev, Lambert van Nistelrooij

Substitute(s) under Rule 178(2) present for the final vote

Louis Grech, Aurelio Juri, Sepp Kusstatscher, Eva Lichtenberger, Rosa Miguélez Ramos, María Sornosa Martínez


OPINION of the Committee on the Internal Market and Consumer Protection (12.12.2008)

for the Committee on Legal Affairs

on the proposal for a directive of the European Parliament and of the Council amending Directive 2006/116/EC of the European Parliament and of the Council on the term of protection of copyright and related rights

(COM(2008)0464 – C6‑0281/2008 – 2008/0157(COD))

Rapporteur: Emmanouil Angelakas

SHORT JUSTIFICATION

Your rapporteur generally supports the Commission proposal to extend the term of protection for performers and phonogram producers countries from 50 to 95 years. Taking the view that the proposal is a sensible reflection of the fact that performers are increasingly outliving the existing 50 year period of protection, your rapporteur is not proposing any amendments to this extension.

The proposal also include accompanying measures such as establishing a fund for session musicians and it also seek to introduce a uniform way of calculating the term of protection that applies to a musical composition with words which contains the contributions of several authors. Different Member States apply different systems for such co-written compositions. This leads to difficulties in administering copyright across the Community and difficulties in cross-border distribution of royalties for the exploitation that occurs in different Member States. Your rapporteur supports the proposal to harmonise rules in this respect, taking the view that the current discrepancies is hampering the effective functioning of the Internal Market.

Generally supporting the idea of introducing “use it or lose it” clauses in contracts between performers and phonogram producers, your rapporteur however takes the view that some changes should be introduced in this part of the proposal.

Firstly, in the case of several performers being recorded together, the current proposal obliges them to act jointly to terminate their contracts on transfer or assignment. This means that 50 years after a recording took place, the performers would have to actually agree. This is not realistic and it is the view of your rapporteur that this should be changed allowing them to act individually.

Secondly, the current proposal is referring to allowing the performer a reasonable time to have his performance, for which the rights are about to expire, exploited. However, in the proposal this one year is suggested for this. Your draftsperson does not consider this as a reasonable time and takes the view that five years is more appropriate in this respect.

Your rapporteur is also proposing to include an amendment calling upon the Commission to report to the European Parliament and the Council on the operation of the transitional measures after five years.

AMENDMENTS

The Committee on the Internal Market and Consumer Protection calls on the Committee on Legal Affairs, as the committee responsible, to incorporate the following amendments in its report:

Amendment   1

Proposal for a directive – amending act

Recital 5

Text proposed by the Commission

Amendment

(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 with regard to the fixation of performances 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.

Justification

The creative contribution of all performers should be recognised and reflected in the modification of the directive. To achieve this goal, the scope of the proposal should be extended so that audiovisual performers could also benefit from the extended term of protection; therefore the distinction between fixation of the performance in a phonogram or in another way is proposed to be deleted. (Linked to the amendment on Article 3 - paragraph 1 of Directive 2006/116/EC.)

Amendment   2

Proposal for a directive – amending act

Recital 7

Text proposed by the Commission

Amendment

(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 95 years after the relevant trigger point.

Justification

The creative contribution of all performers should be recognised and reflected in the modification of the directive. To achieve this goal, the scope of the proposal should be extended so that audiovisual performers could also benefit from the extended term of protection; therefore the distinction between fixation of the performance in a phonogram or in another way is proposed to be deleted. (Linked to the amendment on Article 3 - paragraph 1 of Directive 2006/116/EC.)

Amendment   3

Proposal for a directive – amending act

Recital 9

Text proposed by the Commission

Amendment

(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.

(9) Member States should remain free to adopt provisions on the interpretation, adaptation, termination and further execution of contracts governing the transfer or assignment of the rights of the performer in the fixation of his performance to a phonogram producer concluded before the extension of the term of protection resulting from this Directive.

Justification

It does not appear suitable that the proposed changes to Directive 2006/116/EC modify Member States' rules on the interpretation, adaptation, termination and further execution of contracts on the transfer or assignment of performers' rights to a phonogram producer.  Therefore, national rules on how performers' rights are transferred, assigned and how the contracts on such assignments and transfers are terminated should govern the exercise of the 'use it or lose it' clause as foreseen in Article 10a, paragraph 6.

Amendment  4

Proposal for a directive – amending act

Recital 12

Text proposed by the Commission

Amendment

(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   5

Proposal for a directive – amending act

Recital 13

Text proposed by the Commission

Amendment

(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 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 should ensure that distribution of those monies is entrusted to collecting societies representing performers. National rules on non-distributable revenues may be applied.

Amendment   6

Proposal for a directive – amending act

Recital 14 a (new)

Text proposed by the Commission

Amendment

 

(14a) In order to rebalance contracts under which performers transfer their exclusive rights, on a royalty basis, to a phonogram producer, a further condition attached to term extension should be a 'clean slate' for those performers who have assigned those 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 unencumbered by advance payments or contractually defined deductions is paid to performers during the extended period.

Justification

This provision is essential for performers to enjoy all the royalties due to them for the extended period, against a refusal by labels, on grounds that advance payments to the artists have still not been recouped. Without this additional provision, the extension of the term of protection may ultimately only be beneficial to a minority of featured artists.

Amendment   7

Proposal for a directive – amending act

Recital 15 a (new)

Text proposed by the Commission

Amendment

 

(15a) Where a phonogram contains the fixation of the performances of a plurality of performers, Member States should be free to decide whether the performers may terminate the transfer or assignment jointly or individually.

Amendment   8

Proposal for a directive – amending act

Article 1 – point 1

Directive 2006/116/EC

Article 3 – paragraph 1 – indent 1

 

Text proposed by the Commission

Amendment

- 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 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,

Justification

The discrimination between music and audiovisual performers is totally unacceptable as the Directive 93/98/EEC,whose codified version is Directive 2006/116/EC doesn’t make any discrimination between performers), so create different regimes for the same category performers would be a discrimination under the European Law and against national treatment. Furthermore there is no reason for such discrimination.

Amendment   9

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 4 – subparagraph 2

 

Text proposed by the Commission

Amendment

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

Justification

As the transitional accompanying measure (the 20%) will be measured on net revenues, there will be no disproportionate costs incurred by SMEs, therefore to ensure that all performers benefit from these monies, it is reasonable to include them within the measure.

Amendment   10

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 5

 

Text proposed by the Commission

Amendment

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.

5. Member States shall ensure that the right to obtain an annual supplementary remuneration referred to in paragraph 3 is administered by the collecting society.

Justification

For the sake of simplifying the administrative procedures, the collecting societies should be entrusted with the administration of the annual supplementary remuneration. (Linked to amendment on Recital 13)

Amendment   11

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 6 – subparagraph 1

 

Text proposed by the Commission

Amendment

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.

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 and 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 in accordance with the applicable national laws. 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.

Justification

The obligation for performers to act jointly is not realistic.

Amendment  12

Proposal for a directive – amending act

Article 1 - point 4

Directive 2006/116/EC

Article 10a - paragraph 6 – subparagraph 2

 

Text proposed by the Commission

Amendment

If, one year 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 is not made available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them, the rights of the phonogram producer in the phonogram and the rights of the performers in relation to the fixation of their performance shall expire.

If, five years 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 is not made available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them, the rights of the phonogram producer in the phonogram and the rights of the performers in relation to the fixation of their performance shall expire.

Justification

The obligation for performers to act jointly is not realistic. Moreover, recital 16 is referring to allowing the performer a reasonable time to have his performance, for which the rights are about to expire, exploited. However, one year is not considered as a reasonable time, and five years are more appropriate.

Amendment  13

Proposal for a directive – amending act

Article 1 - point 5 a (new)

Directive 2006/116/EC

Article 11 a (new)

 

Text proposed by the Commission

Amendment

 

(5a) the following Article shall be inserted:

 

"Article 11a

 

Reporting

 

Within five years of the date of entry into force of Directive .../.../EC of the European Parliament and of the Council of...*, the Commission shall submit to the European Parliament and to the Council a report on the operation of the provisions of Article 10a(3) to (5) of this Directive.

 

* OJ: please insert the number and date of this Directive."

Justification

The reporting will allow the European Parliament and the Council to monitor the effect of the changes, in particular in relation to the transitional measures.

PROCEDURE

Title

Term of protection of copyright and related rights

References

COM(2008)0464 – C6-0281/2008 – 2008/0157(COD)

Committee responsible

JURI

Opinion by

       Date announced in plenary

IMCO

2.9.2008

 

 

 

Drafts(wo)man

       Date appointed

Emmanouil Angelakas

10.9.2008

 

 

Discussed in committee

10.11.2008

 

 

 

Date adopted

2.12.2008

 

 

 

Result of final vote

+:

–:

0:

26

4

2

Members present for the final vote

Gabriela Creţu, Mia De Vits, Janelly Fourtou, Evelyne Gebhardt, Martí Grau i Segú, Małgorzata Handzlik, Malcolm Harbour, Christopher Heaton-Harris, Anna Hedh, Edit Herczog, Eija-Riitta Korhola, Lasse Lehtinen, Toine Manders, Catiuscia Marini, Arlene McCarthy, Catherine Neris, Bill Newton Dunn, Zita Pleštinská, Zuzana Roithová, Heide Rühle, Leopold Józef Rutowicz, Christel Schaldemose, Andreas Schwab, Eva-Britt Svensson, Marianne Thyssen, Jacques Toubon, Barbara Weiler

Substitute(s) present for the final vote

Emmanouil Angelakas, Brigitte Fouré, Joel Hasse Ferreira, Anja Weisgerber

Substitute(s) under Rule 178(2) present for the final vote

Maddalena Calia


OPINION of the Committee on Culture and Education (10.12.2008)

for the Committee on Legal Affairs

on the proposal for a directive of the European Parliament and of the Council amending Directive 2006/116/EC of the European Parliament and of the Council on the term of protection of copyright and related rights

(COM(2008)0464 – C6‑0281/2008 – 2008/0157(COD))

Rapporteur: Christopher Heaton-Harris

SHORT JUSTIFICATION

The proposal aims to improve the social situation of performers, and in particular sessions musicians, taking into account that performers are increasingly outliving the existing 50 year period of protection for their performances.

The large scale production of phonograms is essentially a phenomenon that commenced in the 1950s. If nothing is done, over the next 10 years an increasing amount of performances recorded and released between 1957 and 1967 will lose protection. Once their performance fixed in a phonogram is no longer protected, around 7000 performers in any of the big Member States and a correspondingly smaller number in the smaller Member States will lose all of their income that derives from contractual royalties and statutory remuneration claims from broadcasting and public communication of their performances in bars and discotheques.

This affects featured performers (those who receive contractual royalties) but especially the thousands of anonymous session musicians (those who do not receive royalties and rely solely on statutory remuneration claims) who contributed to phonograms in the late fifties and sixties and have assigned their exclusive rights to the phonogram producer against a flat fee payment ('buy out'). Their 'single equitable remuneration' payments for broadcasting and communication to the public, which are never assigned to the phonogram producer, would cease.

The draftsman is very supportive of the Commission proposal - it provides extended benefits for performers and for phonograph producers, and in particular the clauses relating to the 20% levy and the "use it or lose it" clause both ensure that performers, and session musicians in particular, will be benefit significantly from the extension of term, and that their rights are well protected.

The draftsman believes that the €2 million limit for producers is not necessary, as this may prevent some performers from receiving the revenue they need, so recommends that it be removed. Similarly, the proposals to remove the rights from the performers should be removed as this could lead to artists and performers being disadvantaged financially.

The draftsman strongly supports the use of net revenue as the measure for the 20% levy - ensuring that producers can deduct reasonable costs directly related to the administration of the term extension of the phonogram. It must be ensured that only those costs directly related can be deducted, in order to ensure fair and consistent remuneration for performers.

AMENDMENTS

The Committee on Culture and Education calls on the Committee on Legal Affairs, as the committee responsible, to incorporate the following amendments in its report:

Amendment  1

Proposal for a directive – amending act

Recital 5 a (new)

Text proposed by the Commission

Amendment

(5a) The new technologies offer the possibility of the digital distribution of phonograms in legal online services. Within this framework, phonograms from previous years are included, thereby creating the opportunity to sell less popular phonograms, which will produce an income for older and less popular artists.

Justification

Extending the duration of protection for related rights will increase the motivation for record companies to digitalise their catalogues. Online distribution services will thus create new prospects for many recordings, thereby creating new sources of income for artists. Furthermore, the digitalisation of earlier phonograms will provide income for older or less popular artists who will benefit from so-called 'longtail sales'.

Amendment  2

Proposal for a directive – amending act

Recital 5 b (new)

Text proposed by the Commission

Amendment

(5b) The European Parliament asks the Commission to launch an impact assessment procedure similar to that carried out for the music sector to consider whether there is a need to extend the term of protection that currently applies in the audiovisual sector (artists performers, producers and broadcasters).

Justification

In principle, the creative contribution of all performers should be recognised and reflected in the directive. However, as no impact assessment has been conducted by the European Commission on the consequences of a possible extension of the term of protection for performers in other sectors, such an extension is not reasonable at this stage. Therefore the Commission is hereby mandated to conduct an impact assessment on the audiovisual sector.

Amendment  3

Proposal for a directive – amending act

Recital 12

Text proposed by the Commission

Amendment

(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

Justification

As the transitional accompanying measure (the 20%) will be measured on net revenues, there will be no disproportionate costs incurred by SMEs, therefore to ensure that all performers benefit from these monies, it is reasonable to include them within the measure.

Amendment  4

Proposal for a directive – amending act

Recital 13

Text proposed by the Commission

Amendment

(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 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 should ensure that distribution of those monies is entrusted to collecting societies representing performers. National rules on non-distributable revenues may be applied. According to the principles stated in the UNESCO Universal Declaration on Cultural Diversity, collecting societies have to play their fundamental role in preserving cultural diversity.

Amendment  5

Proposal for a directive – amending act

Recital 15

Text proposed by the Commission

Amendment

(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.

(15) A second accompanying transitional measure should be that if a phonogram producer no longer offers for sale in sufficient quantity copies of at least one version of a phonogram which, but for the term extension, would be in the public domain, or no longer makes at least one version of such a phonogram available to the public, the performer may request him to do so, and if the producer does not fulfil that request within a reasonable time, the performer may terminate the assignment of the rights in the fixation of that performance.

Justification

It is reasonable that phonogram producers need make available in sufficient quantity to the public one version of the phonogram in question.

Amendment  6

Proposal for a directive – amending act

Recital 16

Text proposed by the Commission

Amendment

(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.

(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.

Justification

The "use it or lose it" clause is designed to protect the rights of performers, and to ensure that phonographic producers cannot curtail those rights unfairly. Recital 15 achieves this, and the further measures in Recital 16 provide no further benefit to the performers - and in many cases will lead to performers losing out.

Amendment  7

Proposal for a directive – amending act

Recital 17 a (new)

Text proposed by the Commission

Amendment

(17a) Among the accompanying transitional measures is the mandatory collective exercise of the rights of performers and phonogram producers concerning on-demand services by broadcasters of their radio or television productions of which music from lawfully published phonograms is an integral part. This system of collective rights management complements the remuneration regime for the broadcasting of lawfully published phonograms under Article 8(2) of Directive 2006/115/EC and guarantees that, throughout the full term of protection of lawfully published phonograms, the relevant performers and phonogram producers receive a fair share of the remuneration for the on-demand use of broadcast productions.

Amendment  8

Proposal for a directive – amending act

Recital 19 a (new)

Text proposed by the Commission

Amendment

(19a) Member States should ensure that the proposal to extend the term of protection of performers' rights is accompanied by legislative provisions that offer protection to performers in the form of fair contractual terms on transfer or assignment.

Justification

There is no need for harmonisation at EU-level on the terms of contact on transfer or assignment; however, the attention of the Member States should be drawn to the fact that usually session performers do not have a real negotiating power therefore the terms of such contracts are usually one-sided.

Amendment  9

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 4 – subparagraph 2

 

Text proposed by the Commission

Amendment

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

Justification

As the transitional accompanying measure (the 20%) will be measured on net revenues, there will be no disproportionate costs incurred by SMEs, therefore to ensure that all performers benefit from these monies, it is reasonable to include them within the measure.

Amendment  10

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 5

 

Text proposed by the Commission

Amendment

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.

5. Member States shall ensure that the right to obtain an annual supplementary remuneration referred to in paragraph 3 is administered by the collecting society.

Justification

It is essential that collecting societies distribute in the most precise way and on individual basis the remuneration collected on behalf of performers.

Amendment  11

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 5 a (new)

 

Text proposed by the Commission

Amendment

5a. Collecting societies shall distribute those remunerations on an individual basis and taking into account the use of each performer’s performances.

Justification

It is essential that collecting societies distribute in the most precise way and on individual basis the remuneration collected on behalf of performers.

Amendment  12

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 5 b (new)

 

Text proposed by the Commission

Amendment

 

5b. With respect to the administration of rights concerning on-demand services by broadcasters of their radio or television productions incorporating music from lawfully published phonograms, Member States shall ensure that the rights of performers and phonogram producers to grant or refuse authorization for such use may be exercised only through the collecting society which has been established for collecting and distributing the remuneration for broadcasting such phonograms.

Justification

The extension of the term of protection for performers and phonogram producers aggravates the administrative difficulties for radio and television broadcasters to clear the necessary on-demand rights for their productions, in particular their archives. In order to achieve both efficient rights management, as encouraged by Recital 26 of the 2001 Copyright (InfoSoc) Directive, and a fair share for all right-holders also for the on-demand use of broadcast productions, it is therefore appropriate to complement this remuneration regime by a mandatory collective licensing scheme for such use.

Amendment  13

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 6 – subparagraph 1

 

Text proposed by the Commission

Amendment

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.

6. If, after the moment at which, by virtue of Article 3(1) and (2) in their version before the 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 no longer offers copies of at least one version of the phonogram for sale in sufficient quantity or makes available to the public, by wire or wireless means, at least one version of the phonogram, 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 request to the producer to do so, and if the producer does not fulfil that request within a reasonable time, the performer may terminate the assignment of rights in that phonogram.

Justification

It is reasonable that phonogram producers need make available in sufficient quantity to the public one version of the phonogram in question.

Amendment  14

Proposal for a directive – amending act

Article 1 – point 4

Directive 2006/116/EC

Article 10a – paragraph 6 – subparagraph 2

 

Text proposed by the Commission

Amendment

If, one year 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 is not made available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them, the rights of the phonogram producer in the phonogram and the rights of the performers in relation to the fixation of their performance shall expire.

deleted

Justification

The "use it or lose it" clause is designed to protect the rights of performers, and to ensure that phonographic producers cannot curtail those rights unfairly. Article 10, Paragraph 1, Subparagraph 1 achieves this, and the further measures in Subparagraph 2 provide no further benefit to the performers - and in many cases will lead to performers losing out.

PROCEDURE

Title

Term of protection of copyright and related rights

References

COM(2008)0464 – C6-0281/2008 – 2008/0157(COD)

Committee responsible

JURI

Opinion by

       Date announced in plenary

CULT

2.9.2008

 

 

 

Drafts(wo)man

       Date appointed

Christopher Heaton-Harris

10.9.2008

 

 

Discussed in committee

6.11.2008

 

 

 

Date adopted

2.12.2008

 

 

 

Result of final vote

+:

–:

0:

20

0

2

Members present for the final vote

Maria Badia i Cutchet, Katerina Batzeli, Ivo Belet, Guy Bono, Marie-Hélène Descamps, Věra Flasarová, Milan Gaľa, Vasco Graça Moura, Christopher Heaton-Harris, Luis Herrero-Tejedor, Ruth Hieronymi, Manolis Mavrommatis, Doris Pack, Zdzisław Zbigniew Podkański, Christa Prets, Karin Resetarits, Helga Trüpel, Thomas Wise

Substitute(s) present for the final vote

Nina Škottová, László Tőkés, Ewa Tomaszewska, Cornelis Visser


PROCEDURE

Title

Term of protection of copyright and related rights

References

COM(2008)0464 – C6-0281/2008 – 2008/0157(COD)

Date submitted to Parliament

16.7.2008

Committee responsible

       Date announced in plenary

JURI

2.9.2008

Committee(s) asked for opinion(s)

       Date announced in plenary

ITRE

2.9.2008

IMCO

2.9.2008

CULT

2.9.2008

 

Rapporteur(s)

       Date appointed

Brian Crowley

22.9.2008

 

 

Discussed in committee

4.11.2008

20.1.2009

 

 

Date adopted

12.2.2009

 

 

 

Result of final vote

+:

–:

0:

17

5

2

Members present for the final vote

Alin Lucian Antochi, Marek Aleksander Czarnecki, Bert Doorn, Monica Frassoni, Giuseppe Gargani, Lidia Joanna Geringer de Oedenberg, Neena Gill, Klaus-Heiner Lehne, Alain Lipietz, Manuel Medina Ortega, Aloyzas Sakalas, Diana Wallis, Rainer Wieland, Jaroslav Zvěřina, Tadeusz Zwiefka

Substitute(s) present for the final vote

Sharon Bowles, Mogens Camre, Brian Crowley, Jean-Paul Gauzès, Kurt Lechner, Arlene McCarthy, Georgios Papastamkos, Jacques Toubon

Substitute(s) under Rule 178(2) present for the final vote

Michael Cashman, András Gyürk, Helga Trüpel

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