Vienna Music Business Research Days The Proposal of the EU Commission for a Directive on Collecting Societies and Cultural Diversity – a Missed Opportunity Forth “Vienna Music Business Research Days” University of Music and Performing Arts Vienna, June 2013 Prof. Dr. Adolf Dietz Department of Copyright Law Max Planck Institute for Intellectual Property and Information Law Munich

Vienna Music Business Research Days Contents  The cultural function of copyright law in general  The cultural functions of collecting societies themselves  The Proposal of the EU Commission for a Directive on Collecting Societies and Cultural Diversity – a pure lip service?  The frustration of a practicable solution  Conclusion

Vienna Music Business Research Days The cultural function of copyright law in general

Vienna Music Business Research Days Infosoc or Copyright Directive (9) Any harmonization of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. … (12) Adequate protection of copyright works and subject-matter of related rights is also of great importance from a cultural standpoint. Article 151 of the Treaty requires the Community to take cultural aspects into account in its action.

Vienna Music Business Research Days Charter of Fundamental Rights of the European Union The Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organization of their public authorities at national, regional and local levels; …

Vienna Music Business Research Days Finally, the apparent lack of interest of the competent services of the EU Commission concerning the cultural role and functions of copyright law in general and of collecting societies in particular contrasts in a rather shocking way with the relevant position of the European Parliament which in no less than three Resolutions has admonished the Commission, unfortunately in vain, to respect more concretely the cultural diversity and the cultural and social functions of collecting societies and not to overaccentuate the application of antitrust law to them.

Vienna Music Business Research Days If copyright law as a whole has a cultural mission to fulfill this is certainly true also for its subsystems, in particular for collecting societies. From that point of view, the copyright legislators, if they are to take that cultural mission seriously, would have to take a positive attitude vis-à-vis collecting societies, assisting them in the fulfillment of their tasks, rather than a negative one, holding them down and weakening them, without, of course, neglecting the necessary control over the societies.

Vienna Music Business Research Days The cultural functions of collecting societies themselves

Vienna Music Business Research Days All that is important and primordial, but still is only half of the truth. If we want to know the full cultural mission of collecting societies we have to take the territorial aspect into consideration. They are not active so to say in a neutral zone which could be small or big, national, regional-European or international, but they have a primordial responsibility for the creative people of “their” country or of ”their” linguistic culture.

Vienna Music Business Research Days The Proposal of the EU Commission for a Directive on Collecting Societies and Cultural Diversity – a pure lip service?

Vienna Music Business Research Days Here one can have the impression of a great imbalance: all strict obligations are imposed on the collecting societies whilst the obligations of the rightholders and especially of the users are regulated only in a very superficial way.

Vienna Music Business Research Days Last, but really not least, the provisions which directly aim at the cultural aspect are once again very strict and restrictive; they concern “the deductions made for any purpose other than management fees, including those that may be required by national law for the provision of any social, cultural or educational services in the period concerned”. Already the expression “that may be required by national law” demonstrates a “psychological reserve” signifying that the Commission makes a big concession to the national laws here, without being really convinced of the value of these deductions and, even less, of the necessity to – horribile dictu - prescribe them in the European framework. Nonetheless, those deductions, where they exist, are a characteristic element of the cultural functions of collecting societies, at least on the European continent.

Vienna Music Business Research Days The frustration of a practicable solution

Vienna Music Business Research Days The biggest paradox in our context is that quite a practical solution for online use of musical works had already been found by the collecting societies themselves in form of the Santiago Agreement (concerning the right of public communication) and the Barcelona Agreement (concerning the mechanical reproduction right).

Vienna Music Business Research Days Conclusion

Vienna Music Business Research Days So many voices have been raised against the Proposal for a Directive on Collecting Societies of July 11, It is high time for the Commission to reflect again and to be aware that her position has become untenable, in particular also because, in a politically and democratically intolerable manner, she acts in total neglect of the will of the European Parliament. Consequently, we hope that that proposal will never be accepted in its actual version by the legislators, the Council of the European Union and the European Parliament. From the point of view of the protection of cultural diversity it represents a big missed opportunity.

Vienna Music Business Research Days Thank you for your attention !!!

Vienna Music Business Research Days The Proposal of the EU Commission for a Directive on Collecting Societies and Cultural Diversity – a Missed Opportunity Forth “Vienna Music Business Research Days” University of Music and Performing Arts Vienna, June 2013 Prof. Dr. Adolf Dietz Department of Copyright Law Max Planck Institute for Intellectual Property and Information Law Munich