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EN EN
EUROPEAN PARLIAMENT
2004
2009
Session document
A6-0070/2009
18.2.2009
***IREPORT
on the proposal for a directive of the European Parliament and of the Councilamending Directive 2006/116/EC of the European Parliament and of theCouncil 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
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PR_COD_1am
Symbols for procedures
* Consultation proceduremajority of the votes cast
**I Cooperation procedure (first reading)majority of the votes cast
**II Cooperation procedure (second reading)majority of the votes cast, to approve the common positionmajority of Parliament’s component Members, to reject or amend
the common position
*** Assent proceduremajority of Parliament’s component Members except in casescovered by Articles 105, 107, 161 and 300 of the EC Treaty and
Article 7 of the EU Treaty
***I Codecision procedure (first reading)majority of the votes cast
***II Codecision procedure (second reading)
majority of the votes cast, to approve the common positionmajority of Parliament’s component Members, to reject or amendthe common position
***III Codecision procedure (third reading)majority of the votes cast, to approve the joint text
(The type of procedure depends on the legal basis proposed by theCommission.)
Amendments to a legislative text
In amendments by Parliament, amended text is highlighted in bold italics. Inthe case of amending acts, passages in an existing provision that theCommission has left unchanged, but that Parliament wishes to amend, arehighlighted in bold. Any deletions that Parliament wishes to make in
passages of this kind are indicated thus: [...]. Highlighting in normal italics isan indication for the relevant departments showing parts of the legislativetext for which a correction is proposed, to assist preparation of the final text(for instance, obvious errors or omissions in a given language version).
Suggested corrections of this kind are subject to the agreement of thedepartments concerned.
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CONTENTS
Page
DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION................................. 5
EXPLANATORY STATEMENT............................................................................................ 19
OPINION OF THE COMMITTEE ON INDUSTRY, RESEARCH AND ENERGY............ 21
OPINION OF THE COMMITTEE ON THE INTERNAL MARKET AND CONSUMERPROTECTION......................................................................................................................... 38
OPINION OF THE COMMITTEE ON CULTURE AND EDUCATION.............................. 48
PROCEDURE .......................................................................................................................... 59
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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, pursuantto 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 theCommittee on Industry, Research and Energy, the Committee on the Internal Market andConsumer 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 careersyoung and the current term of protection of50 years with regard to performances fixed
in phonograms and for phonograms oftendoes not protect their performances duringtheir entire lifetime. Therefore, performersface an income gap at the end of theirlifetimes. They are also often not able torely on their rights to prevent or restrictobjectionable uses of their performances
(5) Performers generally start their careersyoung and the current term of protection of50 years with regard to the fixation of
performances often does not protect their performances during their entire lifetime.Therefore, performers face an income gapat the end of their lifetimes. They are alsooften not able to rely on their rights to
prevent or restrict objectionable uses oftheir performances that occur during their
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that occur during their lifetimes. 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.
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Amendment 4
Proposal for a directive – amending act
Recital 8
Text proposed by the Commission Amendment
(8) Upon entering into a contractualrelationship with a phonogram producer,
performers normally have to transfer to the phonogram producers their exclusive rightsof reproduction, distribution, rental andmaking 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 advanceand made any contractually defined
deductions. Performers who play in the background and do not appear in thecredits ("non-featured performers") usuallytransfer their exclusive rights against aone-off payment (non recurringremuneration).
(8) Upon entering into a contractualrelationship with a phonogram producer,
performers normally have to transfer to the phonogram producers their exclusive rightsof reproduction, distribution, rental andmaking 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 advanceand made any contractually defined
deductions. Performers who play in the background and do not appear in thecredits ("non-featured performers") as wellas some other performers who appear in
the credits ("featured performers") usually transfer their exclusive rightsagainst a one-off payment (non recurringremuneration).
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 ofclear indications to the contrary, a
contractual transfer or assignment ofrights in the fixation of the performanceconcluded before the date by which
Member States are to adopt measures
(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
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implementing the directive shall continue
to produce its effects for the extended
term.
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
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Proposal for a directive – amending act
Recital 12
Text proposed by the Commission Amendment
(12) The first transitional accompanying
measure should not entail adisproportionate 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 verseraux 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 fromthe 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
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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 artistshave 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 actRecital 17
Text proposed by the Commission Amendment
(17) Since the objectives of the proposed (17) Since the objectives of the proposed
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accompanying measures cannot besufficiently achieved by the MemberStates, as national measures in that fieldwould either lead to distortion of theconditions of competition or affect thescope of exclusive rights of the phonogram
producer which are defined by Communitylegislation and can therefore, be betterachieved at Community level, theCommunity may adopt measures, inaccordance with the principle ofsubsidiarity as set out in Article 5 of theTreaty. In accordance with the principle of
proportionality, as set out in that Article,this directive does not go beyond what isnecessary in order to achieve thoseobjectives.
accompanying measures cannot besufficiently achieved by the MemberStates, as national measures in that fieldwould either lead to distortion of theconditions of competition or affect thescope of exclusive rights of the phonogram
producer which are defined by Communitylegislation and can therefore, be betterachieved at Community level, theCommunity may adopt measures, inaccordance with the principle ofsubsidiarity as set out in Article 5 of theTreaty. In accordance with the principle of
proportionality, as set out in that Article,this directive does not go beyond what isnecessary in order to achieve thoseobjectives. Among the accompanyingtransitional measures should also include
the mandatory collective exercise of therights 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 equitableremuneration (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.
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Amendment 11
Proposal for a directive – amending act
Recital 19
Text proposed by the Commission Amendment
(19) Consequently, the harmonisation ofthe term of protection in musicalcompositions with words is incomplete,giving rise to impediments to the freemovement of goods and services, such ascross-border collective managementservices.
(19) Consequently, the harmonization ofthe term of protection in musicalcompositions with words is incomplete,giving rise to impediments to the freemovement of goods and services, such ascross-border collective managementservices. In order to ensure the removal ofsuch impediments, all such works in
protection as at the [date of entry into
force of this Directive] should have thesame 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.
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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/ECArticle 10a – paragraph 2
Text proposed by the Commission Amendment
2. Paragraphs 3 to 6 of this article shallapply to contracts on transfer orassignment which continue to produce theireffects beyond the moment at which, byvirtue of Article 3 (1) and (2) in theirversion before amendment by Directive [//insert: Nr. of this amending directive]/EC,the performer and the phonogram producerwould be no longer protected in regard of,respectively, the fixation of the
performance and the phonogram.
2. Paragraphs 3 to 7 of this Article shallapply to contracts on transfer orassignment which continue to produce theireffects beyond the moment at which, byvirtue of Article 3 (1) and (2) in theirversion before amendment by Directive [//insert: Nr. of this amending directive]/EC,the performer and the phonogram producerwould 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/ECArticle 10a – paragraph 4 – subparagraph 2
Text proposed by the Commission Amendment
Member States may provide that a
phonogram producer whose total annual
deleted
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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.
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/ECArticle 10a – paragraph 5
Text proposed by the Commission Amendment
5. Member States may regulate whetherand to what extent administration by
collecting societies of the right to obtain anannual supplementary remunerationreferred to in paragraph 3 may be imposed .
5. Member States shall ensure that theright to obtain an annual supplementaryremuneration referred to in paragraph 3 isadministered 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
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established for collecting and distributing
the remuneration for broadcasting such
phonograms.
Justification
For the sake of simplifying the administrative procedures, the collecting societies should beentrusted 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 bya mandatory collective licensing scheme for such use.
Amendment 16
Proposal for a directive – amending act
Article 1 – point 4
Directive 2006/116/ECArticle 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/ECArticle 10a – paragraph 6 – subparagraph 1
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Text proposed by the Commission Amendment
6. If, after the moment at which, by virtueof Article 3 (1) and (2) in their version
before amendment by Directive [// insert:
Nr. of this amending directive]/EC, the performer and the phonogram producerwould be no longer protected in regard of,respectively, the fixation of the
performance and the phonogram, the phonogram producer ceases to offer copiesof the phonogram for sale in sufficientquantity or to make it available to the
public, by wire or wireless means, in sucha way that members of the public mayaccess them from a place and at a timeindividually chosen by them, the performer
may terminate the contract on transfer orassignment. Where a phonogram containsthe fixation of the performances of a
plurality of performers, they may terminatetheir contracts on transfer or assignmentonly jointly. If the contract on transfer orassignment is terminated pursuant tosentences 1 or 2, the rights of the
phonogram producer in the phonogramshall expire.
6. If, after the moment at which, by virtueof Article 3 (1) and (2) in their version
before amendment by Directive [// insert:
Nr. of this amending directive]/EC, the performer and the phonogram producerwould be no longer protected in regard of,respectively, the fixation of the
performance and the phonogram, the phonogram producer ceases to offer copiesof the phonogram for sale in sufficientquantity or to make it available to the
public, by wire or wireless means, in sucha way that members of the public mayaccess them from a place and at a timeindividually chosen by them, the performer
may terminate the contract on transfer orassignment. Where a phonogram containsthe fixation of the performances of a
plurality of performers, they may terminatetheir contracts on transfer or assignment inaccordance with the applicable national
laws. If the contract on transfer orassignment is terminated pursuant tosentences 1 or 2, the rights of the
phonogram producer in the phonogramshall 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/ECArticle 10a – paragraph 6 – subparagraph 2
Text proposed by the Commission Amendment
If, one year after the moment at which, byvirtue of Article 3 (1) and (2) in theirversion before amendment by Directive [//insert: Nr. of this amending directive]/EC,
If, five years after the moment at which, byvirtue of Article 3 (1) and (2) in theirversion before amendment by Directive [//insert: Nr. of this amending directive]/EC,
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the performer and the phonogram producerwould 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 mayaccess them from a place and at a timeindividually chosen by them, the rights ofthe phonogram producer in the phonogramand the rights of the performers in relationto the fixation of their performance shallexpire.
the performer and the phonogram producerwould 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 mayaccess them from a place and at a timeindividually chosen by them, the rights ofthe phonogram producer in the phonogramand the rights of the performers in relationto the fixation of their performance shallexpire.
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 morereasonable 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/ECArticle 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
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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 interalia, 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.
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EXPLANATORY STATEMENT
The rapporteur supports the Commission proposal which aims to improve the social situationof performers, and in particular sessions musicians, taking into account that performers areincreasingly 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 severalaccompanying 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 theterm of protection of copyright and certain related rights. That Directive codified andsuperseded the earlier Directive 93/98/EEC on the term of protection of copyright and certainrelated 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 whenthey 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 additionalrevenue 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 itconcerns a musical composition, containing the contributions of several authors as music isoverwhelmingly co-written; EU-wide, the term of protection of a musical composition wouldexpire 70 years after the death of the last surviving author, be it the author of the lyrics or thecomposer of the music.
Commission’s proposal to apply a uniform method of calculating the term of protection ofmusical compositions with lyrics whereby, when a musical composition is published withlyrics, the term of protection will be calculated from the death of the last surviving person: theauthor of the lyrics or the composer of the music.
The current differences in term of protection, particularly between Europe and the US, causelegal 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 anundeniable 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 protectits artists, one the most important expression of its cultural diversity.
Equalising term of protection with the U.S. would be an excellent opportunity for Europeeconomy to further the progress of the EU Lisbon Strategy for growth and jobs, whichrecognised the particular importance of promoting the creative industries. At a time when
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creative industries based on intellectual property are generating an increasing percentage ofGDP in the EU, the current disparity between the term of protection in the EU and the USclearly 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 EUneeds to close the gap by equalising term of protection at 95 years to provide a level playingfield 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 yearsmakes the extension of the protection of performers’ rights even more essential for the artistsconcerned. Unfortunately, many performers know popularity and success especially whenthey are young so it is essential that they receive the right economic reward when they are oldevery 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 thedetriment of contemporary creations. Furthermore, the latter would inevitably seek to pleasethose 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 difficultfor 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 littleaccess to social security, unemployment compensation or health and safety protection and isgenerally confronted with widespread unfair contractual practices. In this context, the incomegenerated by the intellectual property rights represents a vital source of income for
performers.
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16.12.2008
OPINION OF THE COMMITTEE ON INDUSTRY, RESEARCH AND ENERGY
for the Committee on Legal Affairs
on the proposal for a directive of the European Parliament and of the Council amendingDirective 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 protectionof related rights and creating additional transitory safeguard measures. The proposal recognisesthe importance of performers’ creative and artistic contribution which needs to be properlyreflected 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 andrecent technological developments; and therefore proposes a set of amendments along thefollowing 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 forsession 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 themodification of the directive. To achieve this goal, the scope of the proposal should beextended 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
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another way is proposed to be deleted. Also, the same starting dates from which the durationof protection is calculated for performers’ rights and for producers’ rights should apply (asforeseen under Article 3, paragraph 2). (Related amendments: Amendment 1 of the draftopinion on Recital 5; Amendment 2 of the draft opinion on Recital 7; and Amendment 10 ofthe 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 forsession musicians
The Commission proposed an exemption for small record producers from setting aside at least20 percent of revenues in order to contribute to the fund created for session musicians. Suchexemption 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 licensingcontracts with smaller phonogram producers. Therefore this exemption is proposed to bedeleted. (Related amendments: Amendment 4 of the draft opinion on Recital 12; andAmendment 12 of the draft opinion on Article 10 a (new), paragraph 4, subparagraph 2 ofDirective 2006/116/EC.)
(iii) Simplification of the administration of the above fund
In order to simplify the administrative procedures, the collecting societies should be entrustedwith the administration of the above fund. (Related amendments: Amendment 5 of the draftopinion on Recital 13; Amendment 6 of the draft opinion on Recital 14 a (new); andAmendment 13 of the draft opinion on Article 10 a (new), paragraph 5 of Directive2006/116/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 moreflexible. If the rights are reverted to the performer, this performer should be given a fairchance to have his performance exploited before loosing again the rights. Therefore a morereasonable period of time, 5 years, should be given to the performers to make the newexploitation possibility feasible. (Related amendment: Amendment 14 of the draft opinion onArticle 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 beencouraged 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 (suchas how to quantify the financial benefits; and who should pay this remuneration); rules andobligations stemming from the relevant international conventions should also be carefullyconsidered. (Related amendment: Amendment 9 on Recital 19 c (new)).
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AMENDMENTS
The Committee on Industry, Research and Energy calls on the Committee on Legal Affairs, asthe 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 itshould 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 willrequire 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
deleted
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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.
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 reservedsolely for the benefit of performers whose
performances are fixed in a phonogram andwho 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 onan individual basis. Member States mayrequire that distribution of those monies isentrusted to collecting societiesrepresenting performers. When thedistribution of those monies is entrusted
to collecting societies, national rules on
non-distributable revenues may be
applied.
(13) Those monies should be reservedsolely for the benefit of performers whose
performances are fixed in a phonogram andwho 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 onan individual basis. Member States mayrequire that distribution of those monies isentrusted to collecting societiesrepresenting 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.
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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, thecollecting 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
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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 tothe 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). Rulesand 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 ensurethat, under agreements between
phonogram producers and performers, a
royalty unencumbered by advance
payments or contractually defined
deductions is paid to performers during
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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/ECArticle 3 – paragraph 1 − sentence 2
Text proposed by the Commission Amendment
(1) The second sentence of Article 3(1) isreplaced by the following:
(1) At the end of Article 3(1) the followingsentence 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
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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 torecoup any investment.
Amendment 9
Proposal for a directive – amending act
Article 1 – point 2
Directive 2006/116/ECArticle 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.
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Amendment 10
Proposal for a directive – amending act
Article 1 – point 4
Directive 2006/116/ECArticle 10a – paragraph 1
Text proposed by the Commission Amendment
1. In the absence of clear indications tothe contrary, a contract, concluded before[insert date before which Member Statesare to transpose the amending directive, asmentioned in Article 2 below], whereby a
performer has transferred or assigned hisrights in the fixation of his performance toa phonogram producer (hereinafter: a"contract on transfer or assignment"), shall
be deemed to continue to produce itseffects beyond the moment at which, byvirtue of Article 3 (1) and (2) in theirversion before amendment by Directive [//insert: Nr. of this amending directive], the
performer and the phonogram producerwould 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 totranspose the amending directive, asmentioned in Article 2 below], whereby a
performer has transferred or assigned hisrights other than to a collecting society inthe 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 beforeamendment by Directive [// insert: Nr. ofthis 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/ECArticle 10a – paragraph 2
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Text proposed by the Commission Amendment
2. Paragraphs 3 to 6 of this article shallapply 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 transferredthe management of his rights to a
collecting society as regards the additional
term of protection that is conferred as aresult 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 additionalterm 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/ECArticle 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
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Proposal for a directive – amending act
Article 1 – point 4
Directive 2006/116/ECArticle 10a – paragraph 3
Text proposed by the Commission Amendment
3. Where a contract on transfer orassignment 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 distributethe 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/ECArticle 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
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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, distributionand 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.
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 whetherand to what extent administration by
collecting societies of the right to obtain anannual supplementary remunerationreferred to in paragraph 3 may be imposed .
5. Member States shall ensure that theright to obtain an annual supplementaryremuneration referred to in paragraph 3 isadministered 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
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Proposal for a directive – amending act
Article 1 – point 4
Directive 2006/116/ECArticle 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 theremuneration 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/ECArticle 10a – paragraph 6 – subparagraph 1
Text proposed by the Commission Amendment
6. If, after the moment at which, by virtueof Article 3 (1) and (2) in their version
before amendment by Directive [// insert: Nr. of this amending directive]/EC, the performer and the phonogram producerwould be no longer protected in regard of,
6. If, after the moment at which, by virtueof Article 3 (1) and (2) in their version
before amendment by Directive [// insert: Nr. of this amending directive]/EC, the performer and the phonogram producerwould be no longer protected in regard of,
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respectively, the fixation of the performance and the phonogram, the phonogram producer ceases to offer copiesof the phonogram for sale in sufficientquantity or to make it available to the
public, by wire or wireless means, in such
a way that members of the public mayaccess them from a place ant at a timeindividually chosen by them, the performermay terminate the contract on transfer orassignment. Where a phonogram containsthe fixation of the performances of a
plurality of performers, they may terminatetheir contracts on transfer or assignmentonly jointly. If the contract on transfer orassignment is terminated pursuant tosentences 1 or 2, the rights of the
phonogram producer in the phonogram
shall expire.
respectively, the fixation of the performance and the phonogram, the phonogram producer ceases to offer copiesof the phonogram for sale in sufficientquantity or to make it available to the
public, by wire or wireless means, in such
a way that members of the public mayaccess them from a place and at a timeindividually chosen by them, the performermay terminate the contract on transfer orassignment. Where a phonogram containsthe fixation of the performances of a
plurality of performers, they may terminatetheir contracts on transfer or assignment
jointly or individually in accordance withthe applicable national laws. If thecontract on transfer or assignment isterminated 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/ECArticle 10a – paragraph 6 – subparagraph 2
Text proposed by the Commission Amendment
If, one year after the moment at which, byvirtue of Article 3 (1) and (2) in theirversion before amendment by Directive [//insert: Nr. of this amending directive]/EC,the performer and the phonogram producerwould 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 mayaccess them from a place and at a timeindividually chosen by them, the rights ofthe phonogram producer in the phonogramand the rights of the performers in relationto the fixation of their performance shall
If, five years after the moment at which, byvirtue of Article 3 (1) and (2) in theirversion before amendment by Directive [//insert: Nr. of this amending directive]/EC,the performer and the phonogram producerwould 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 mayaccess them from a place and at a timeindividually chosen by them, the rights ofthe phonogram producer in the phonogramand the rights of the performers in relationto the fixation of their performance shall
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expire. 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 morereasonable 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/ECArticle 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’ collectingsociety."
Justification
A remuneration to the performers has to be recognised by those who make the performance
available to the public.
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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, DragoşFlorin David, Den Dover, Nicole Fontaine, Adam Gierek, NorbertGlante, András Gyürk, Fiona Hall, Erna Hennicot-Schoepges, ReinoPaasilinna, 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, NeenaGill, 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, RosaMiguélez Ramos, María Sornosa Martínez
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12.12.2008
OPINION OF THE COMMITTEE ON THE INTERNAL MARKET AND CONSUMERPROTECTION
for the Committee on Legal Affairs
on the proposal for a directive of the European Parliament and of the Council amendingDirective 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 protectionfor performers and phonogram producers countries from 50 to 95 years. Taking the view thatthe proposal is a sensible reflection of the fact that performers are increasingly outliving theexisting 50 year period of protection, your rapporteur is not proposing any amendments to thisextension.
The proposal also include accompanying measures such as establishing a fund for sessionmusicians and it also seek to introduce a uniform way of calculating the term of protectionthat applies to a musical composition with words which contains the contributions of severalauthors. Different Member States apply different systems for such co-written compositions.This leads to difficulties in administering copyright across the Community and difficulties incross-border distribution of royalties for the exploitation that occurs in different MemberStates. Your rapporteur supports the proposal to harmonise rules in this respect, taking theview that the current discrepancies is hampering the effective functioning of the InternalMarket.
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 obligesthem to act jointly to terminate their contracts on transfer or assignment. This means that 50years after a recording took place, the performers would have to actually agree. This is notrealistic and it is the view of your rapporteur that this should be changed allowing them to actindividually.
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Secondly, the current proposal is referring to allowing the performer a reasonable time to havehis performance, for which the rights are about to expire, exploited. However, in the proposalthis one year is suggested for this. Your draftsperson does not consider this as a reasonabletime 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 transitionalmeasures after five years.
AMENDMENTS
The Committee on the Internal Market and Consumer Protection calls on the Committee onLegal Affairs, as the committee responsible, to incorporate the following amendments in itsreport:
Amendment 1
Proposal for a directive – amending act
Recital 5
Text proposed by the Commission Amendment
(5) Performers generally start their careersyoung and the current term of protection of50 years with regard to performances fixedin phonograms and for phonograms oftendoes not protect their performances duringtheir entire lifetime. Therefore, performers
face an income gap at the end of theirlifetimes. They are also often not able torely on their rights to prevent or restrictobjectionable uses of their performancesthat occur during their lifetimes.
(5) Performers generally start their careersyoung and the current term of protection of50 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 alsooften not able to rely on their rights to prevent or restrict objectionable uses oftheir performances that occur during theirlifetimes.
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 1of Directive 2006/116/EC.)
Amendment 2
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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 shouldtherefore 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 shouldtherefore be extended to 95 years after therelevant trigger point .
Justification
The creative contribution of all performers should be recognised and reflected in themodification 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 itshould be provided that in the absence of
clear indications to the contrary, a
contractual transfer or assignment ofrights in the fixation of the performanceconcluded 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 toadopt 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.
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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 actRecital 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 revenueachieved 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 andwho have transferred their rights to the
phonogram producer against a one-off payment. The monies set aside in thismanner should be distributed to non-featured performers at least once a year onan individual basis. Member States may require that distribution of those monies isentrusted to collecting societiesrepresenting performers. When thedistribution of those monies is entrusted
to collecting societies, national rules onnon-distributable revenues may be applied.
(13) Those monies should be reserved
solely for the benefit of performers whose performances are fixed in a phonogram andwho have transferred their rights to the
phonogram producer against a one-off payment. The monies set aside in thismanner should be distributed to non-featured performers at least once a year onan individual basis. Member States shouldensure that distribution of those monies isentrusted to collecting societiesrepresenting performers. National rules onnon-distributable revenues may be applied.
Amendment 6
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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 theirexclusive 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
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Proposal for a directive – amending act
Article 1 – point 1
Directive 2006/116/ECArticle 3 – paragraph 1 – indent 1
Text proposed by the Commission Amendment
- if a fixation of the per