Activities of Nadja HIRSCH related to 2012/0180(COD)
Shadow opinions (1)
OPINION on the proposal for a directive of the European Parliament and of the Council on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online uses in the internal market
Amendments (28)
Amendment 85 #
Proposal for a directive
Recital 2
Recital 2
(2) The dissemination of content which is protected by copyright and related rights and the linked services, including books, audiovisual productions and recorded music require the licensing of rights by different holders of copyright and related rights, such as authors, performers, producers and publishers. It is normally for the rightholders to choose between the individual or collective management of their rights. Management of copyright and related rights includes the granting of licences to users, the auditing of licensees and monitoring of the use of rights, the enforcement of copyright and related rights, the collection of rights revenue derived from the exploitation of rights and the distribution of the amounts due to rightholders. Collecting societies enable rightholders to be remunerated for uses which they would not be in any position to control or enforce themselves at all, or only with difficulty, including in non- domestic markets. Moreover, they have an important social and cultural role as promoters of the diversity of cultural expressions by enabling the smallest and less popular repertoires to access the market. Article 167 of the Treaty on the Functioning of the European Union requires the Union to take cultural aspects into account in its action, in particular in order to respect and to promote the diversity of its cultures.
Amendment 98 #
Proposal for a directive
Recital 4
Recital 4
(4) There are significant differences in the national rules governing the functioning of collecting societies, in particular as regards their transparency and accountability towards their members and rightholders. Beyond the difficulties non-domestic rightholders face when exercising their rights and the too often poor financial management of the revenues collected, problems with the functioning of collecting societies lead to inefficiencies in the exploitation of copyright and related rights across the internal market to the detriment of the members of collecting societies, rightholders and users alike. These difficulties do not arise in the functioning of iIndependent rights management service providers who, by contrast, act as agents for rightholders for the management of their rights on a purely commercial basis, and in which rightholders do not exercise membership rights within them.
Amendment 109 #
Proposal for a directive
Recital 9
Recital 9
(9) Having the freedom to provide and to receive collective management services across national borders entails that rightholders are able to freely choose the collecting societyve management organisation for the management of their rights, such as public performance or broadcasting rights, or categories of rights, such as interactive communication to the public, provided theat collecting societyve management organisation already manages such rights or categories of rights. This implies that rightholders can easily withdraw their rights or categories of rights from a collecting societyve management organisation and entrust or transfer all or part of them to another collecting societyve management organisation or another entity irrespective of the Member State of residence or the nationality of either the collecting societyve management organisation or the rightholder. Collecting societieve management organisations managing different types of works and other subject matter, such as literary, musical or photographic works, should also allow this flexibility to rightholders as regards the management of different types of works and other subject matter. Collecting societieve management organisations should inform rightholders of this choice and allow them to exercise it as easily as possible. Finally, this Directive should not prejudice the possibilities of rightholders to manage their rights individually, including for non- commercial uses.
Amendment 125 #
Proposal for a directive
Recital 15
Recital 15
(15) Collecting societieve management organisations collect, manage and distribute revenue from the exploitation of the rights entrusted to them by rightholders. This revenue is ultimately due to rightholders who may be members of that societycollective management organisation, or another society. It is therefore important that collecting societieve management organisations exercise the utmost diligence, with maximum efficiency, in collecting, managing and distributing that revenue. Accurate distribution is only possible where collecting societieve management organisations maintain proper records of membership, licences and use of works and other subject matter. Where appropriate, data should also be provided by rightholders and users and verified by the collecting societieData on the use of the rights managed by collective management organisations should also be provided by rightholders and users as quickly as possible, and with due care, and verified by those organisations. Amounts collected and due to rightholders should be managed separately from any own assets of the collecting societyve management organisation and, if they are invested, pending their distribution to rightholders, this should be carried out in accordance with the investment policy decided by the collecting societies've management organisation's general meeting. In order to maintain a high level of protection for the rights of rightholders and to ensure that any income which may be derived from exploitation of their rights accrues for the benefit of rightholders, the investments made and held by the collecting societyve management organisation should be managed in accordance with criteria which would oblige the collecting societyorganisation to act prudently, while allowing ithe collecting society to decide on the most secure and efficient investment policy. This should allow the collecting societyve management organisation to opt for an asset allocation that suits the precise nature and duration of any exposure to risk of any rights revenue invested and which does not unduly prejudice any rights revenue owed to rightholders. Moreover, in order to ensure that the amounts due to rightholders are appropriately and effectively distributed, it is necessary to require collecting societieve management organisations to undertake diligent and good faith reasonable measures to identify and locate the relevant rightholders. It is also appropriate to provide for the approval by members of collecting societieve management organisations of the rules governing any situation where, due to the lack of identified or located rightholders, amounts collected cannot be distributed.
Amendment 137 #
Proposal for a directive
Recital 22
Recital 22
(22) While the Internet knows no borders, the online market for music services in the EU is still fragmented, and a single market has still not been fully achieved. The complexity and difficulty associated with the collective management of rights in Europe has, in a number of instances, exacerbated the fragmentation of the European digital market for online music services. This situation comes in stark contrast to the fast growing demand of consumers for access to legally available digital content and associated innovative services, including across national borders.
Amendment 140 #
Proposal for a directive
Recital 23
Recital 23
(23) Commission Recommendation 2005/737/EC promoted a new regulatory environment better suited tofor the management, at Union level, of copyright and related rights for the provision of legitimate online music services. It recognised that in an era of online exploitation of musical works, commercial users need a licensing policy that corresponds to the ubiquity of the online environment and which is multi- territorial. However, the Recommendation, due to its voluntary nature, has not been sufficient to encourage the widespread multi-territorial licensing of online rights in musical works and to address the specific demands of multi- territorial licensing.
Amendment 147 #
Proposal for a directive
Recital 24
Recital 24
(24) In the online music sector, where collective management of authors' rights on a territorial basis remains the norm, it is essential to create conditions conducive to the most effective licensing practices by collecting societies, in an increasingly cross-border context. It is therefore appropriate to provide for a set of rules coordinating basic conditions for the provision by collecting societies of multi- territorial collective licensing of authors' online rights in musical works. These provisions should ensure the necessary minimum quality of the cross-border services provided by collecting societies, notably in terms of transparency of repertoire represented and accuracy of financial flows related to the use of the rights. They should also set out a framework for facilitating the voluntary aggregation of music repertoire and, thus reducing the number of licences a user needs to operate a multi-territorial service and enabling them to be issued more efficiently. These provisions should enable a collecting society to request another collecting society to represent its repertoire on a multi-territorial basis where it cannot fulfil the requirements itself. There should be an obligation on the requested society, provided that it aggregates repertoire and offers or grants multi-territorial licences, to accept the mandate of the requesting society. The development of legal online music services across the Union should also contribute to the fight against piracy.
Amendment 151 #
Proposal for a directive
Recital 26
Recital 26
(26) To ensure that the data on the music repertoire they process is as accurate as possible, collecting societies granting multi-territorial licences of musical works should be required to update their databases continuously and without delay. They should establish easily accessible procedures to enable rightholders and other collecting societies whose repertoire they may represent to inform them about any inaccuracy that the collecting societies databases may contain in respect of works they own or control, including rights – in whole or in part – and Member States for which they have mandated the relevant collecting society to act. They should also have the capacity to process electronically the registration of works and authorisations to manage rights. Given the importance of information automation for the fast and effective processing of data, collecting societies should provide for the use of electronic means for the structured communication of that information – confined to the information required for this transaction – by rightholders. Collecting societies should, as far as possible, ensure that such electronic means take into account the relevant industry standards or practices developed at international level or at the level of the Union.
Amendment 181 #
Proposal for a directive
Article 2 – paragraph 2 a (new)
Article 2 – paragraph 2 a (new)
Title II, Articles 10(1), (2) and (3), 11(1), 12, 15, 16, 18, 19 and 20, as well as Title III and Title IV, Articles 34, 35, 37 and 38 shall also apply to entities owned, in whole or in part, by a collective rights management organisation and which offer or grant multi-territorial licences for online rights in musical works.
Amendment 189 #
Proposal for a directive
Article 3 – paragraph 1 – point a
Article 3 – paragraph 1 – point a
(a) ‘collecting societyve rights management organisation’ means any organisation which is authorised by law or by way of assignment, licence or any other contractual arrangement, by more than one rightholder, to manage copyright or rights related to copyright as its sole or main purpose and which is owned or controlled by its members or which is a not for profit organisation;
Amendment 298 #
Proposal for a directive
Article 12 – paragraph 1
Article 12 – paragraph 1
1. Member States shall ensure that the collecting societyve management organisation regularly and diligently distributes and pays amounts due to all rightholders it represents. The collecting societyve management organisation shall carry out such distribution and payments no later than 12six months from the end of the financial year in which the rights revenue was collected, unless objective reasons related in particular to reporting by users, the identification of rights, rightholders or to the matching of information on works and other subject matter with rightholders prevent the collecting society from respecting this deadline. The collecting society shall carry out such distribution and payments accurately, ensuring equal treatment of all categories of rightholders.
Amendment 299 #
Proposal for a directive
Article 12 – paragraph 1 a (new)
Article 12 – paragraph 1 a (new)
1a. Member States shall ensure that the users of the collective management organisation provide in good time, by electronic means, information concerning the use of the rights which is necessary for the collection of revenue and for making payments to rightholders;
Amendment 301 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
2. Where the amounts due to rightholders cannot be distributed, after fivthree years from the end of the financial year in which the collection of the rights revenue occurred, or earlier where national legislation provides for a shorter period, and provided that the collecting societyve management organisation has taken all necessary measures to identify and locate the rightholders, the collecting societyve management organisation shall decide on the use of the amounts concerned in accordance with Article 7(5)(b), without prejudice to the right of the rightholder to claim such amounts from the collecting societyve management organisation.
Amendment 310 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
2. The collecting society shall regularly, diligently, in good time and accurately distribute and pay amounts due to other collecting societies.
Amendment 312 #
Proposal for a directive
Article 15 – paragraph 2 – subparagraph 1
Article 15 – paragraph 2 – subparagraph 1
Licensing terms shall be based on objective, non-discriminatory criteria, in particular in relation to tariffs.
Amendment 314 #
Proposal for a directive
Article 15 – paragraph 2 – subparagraph 2
Article 15 – paragraph 2 – subparagraph 2
Tariffs for exclusive rights and rights to remuneration shall reflect the economic value of the use of the rights in trade and the economic value of the service provided by the collecting societyve management organisation.
Amendment 315 #
Proposal for a directive
Article 15 – paragraph 2 – subparagraph 3
Article 15 – paragraph 2 – subparagraph 3
Amendment 336 #
Proposal for a directive
Article 18 – paragraph 1 – introductory part
Article 18 – paragraph 1 – introductory part
1. Member States shall ensure that a collecting society makes the following information available at the duly justified request of any rightholder whose rights it represents, any collecting society on whose behalf it manages rights under a representation agreement or any user, by electronic means, without undue delay:
Amendment 346 #
Proposal for a directive
Article 19 – paragraph 1 – point b a (new)
Article 19 – paragraph 1 – point b a (new)
ba) standard licensing contracts and applicable tariffs, including discounts;
Amendment 357 #
Proposal for a directive
Article 25 – paragraph 1
Article 25 – paragraph 1
1. A collecting society shallThe Member States shall ensure that the collective management organisation monitors the use of online rights in musical works which it represents, in whole or in part, by online music service providers to which it has granted a multi- territorial licence for those rights.
Amendment 359 #
Proposal for a directive
Article 25 – paragraph 4
Article 25 – paragraph 4
4. The collecting society shall invoice the online music service provider accurately and without delay after the actual use of the online rights in that musical work is reported fully and in good time in accordance with Article 12(1a)(new), except where a delay is attributable to the online music service provider.
Amendment 368 #
Proposal for a directive
Article 28 – paragraph 2
Article 28 – paragraph 2
2. The mandating collecting societyve management organisation shall inform its membthe rightholders of the duration of the agreement, the costs of the services provided by the other collecting societyve management organisation and any other significant terms of the agreement.
Amendment 370 #
Proposal for a directive
Article 29 – paragraph 2 – subparagraph 2
Article 29 – paragraph 2 – subparagraph 2
The management fee for the service provided by the requested collecting society to the requesting society shall not exceed the costs reasonably incurred by the requested collecting society in managing the repertoire of the requesting collecting society and a reasonablenormal market profit margin regarded as economically justifiable by all parties.
Amendment 372 #
Proposal for a directive
Article 29 – paragraph 3
Article 29 – paragraph 3
3. The requesting collecting societyve management organisation shall make available to the requested collecting societyve management organisation, in electronic form, the information on its own music repertoire required for the provision of multi- territorial licences for online rights in musical works. Where information is insufficient or provided in a form that does not allow the requested collecting societyve management organisation to meet the requirements of this Title, the requested collecting societyve management organisation shall be entitled to charge for the reasonable costs incurred in meeting such requirements or to exclude those works for which information is insufficient or cannot be used.
Amendment 373 #
Proposal for a directive
Article 30 – paragraph 1
Article 30 – paragraph 1
Member States shall ensure that where a collecting societyve management organisation does not grant or offer to grant multi-territorial licences in online rights in musical works or does not allow another collecting societyve management organisation to represent those rights for such purpose by one year after the transposition date of this Directive, rightholders who have authorised that collecting societyve management organisation to represent their online rights in musical works can grant multi- territorial licences in their online rights in musical works themselves or through any collecting societyve management organisation complying with the provisions of this Title or any other party they authorise. The collecting societyrightholders shall notify the affected collective management organisation of their decision without delay. The collective management organisation which does not grant or offer to grant multi-territorial licences shall continue to grant or offer to grant licences for the online rights in musical works of such rightholders for their use in the territory of the Member State where the collecting society is established, unless the rightholders terminate their authorisation to manage them.
Amendment 374 #
Proposal for a directive
Article 31 – paragraph 1
Article 31 – paragraph 1
Articles 18(1)(a), 18(1)(c), 19, 20, 22, 23, 24, 25, 26, 27, 32 and 364 to 38 shall also apply to entities owned, in whole or in part, by a collecting society and which offer or grant multi-territorial licences for online rights in musical works.
Amendment 386 #
Proposal for a directive
Article 37 – title
Article 37 – title
Complaintsiance with the Directive
Amendment 387 #
Proposal for a directive
Article 37 – paragraph 2
Article 37 – paragraph 2
2. Member States shall take all the necessary measures to ensure that the complaints procedures referred to in paragraph 1 are administered by the competent authorities empowered to ensure complianceiance by the collective management organisations established on their territory with the provisions of national law adopted and implemented pursuant to the requirements laid down in this Directive is monitored by the authorities empowered to do so.