Académique Documents
Professionnel Documents
Culture Documents
2004
2009
Session document
A6-0070/2009
18.2.2009
***I
REPORT
on the proposal for a directive of the European Parliament and of the Council
amending Directive 2006/116/EC of the European Parliament and of the
Council on the term of protection of copyright and related rights
(COM(2008)0464 C6-0281/2008 2008/0157(COD))
Committee on Legal Affairs
Rapporteur: Brian Crowley
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***I
***II
***III
Consultation procedure
majority of the votes cast
Cooperation procedure (first reading)
majority of the votes cast
Cooperation procedure (second reading)
majority of the votes cast, to approve the common position
majority of Parliaments component Members, to reject or amend
the common position
Assent procedure
majority of Parliaments component Members except in cases
covered by Articles 105, 107, 161 and 300 of the EC Treaty and
Article 7 of the EU Treaty
Codecision procedure (first reading)
majority of the votes cast
Codecision procedure (second reading)
majority of the votes cast, to approve the common position
majority of Parliaments component Members, to reject or amend
the common position
Codecision procedure (third reading)
majority of the votes cast, to approve the joint text
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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 CONSUMER
PROTECTION ......................................................................................................................... 38
OPINION OF THE COMMITTEE ON CULTURE AND EDUCATION.............................. 48
PROCEDURE .......................................................................................................................... 59
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Amendment 1
Proposal for a directive amending act
Recital 5
Text proposed by the Commission
Amendment
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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
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
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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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Amendment
deleted
Justification
Tous les artistes interprtes ou excutants devraient profiter du fonds. Les recettes verser
aux artistes concerns 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
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Amendment
(14b) Likewise, in order to ensure that
performers that transfer their exclusive
rights in return for a recurring payment
or remuneration to a producer benefit
fully from the extended term of protection,
Member States should ensure that the
royalty or remuneration rate,
unencumbered by deductions for advance
payments or contractually defined
deductions, is paid to performers during
the extended period.
Justification
This provision is essential for performers to enjoy all the royalties due to them for the
extended period, against a refusal by labels, on grounds that advance payments to the artists
have still not been recouped. Without this additional provision, the extension of the term of
protection may ultimately only be beneficial to a minority of featured artists.
Amendment 10
Proposal for a directive amending act
Recital 17
Text proposed by the Commission
Amendment
EN
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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 ondemand rights for their productions, in particular their archives. The clearance of rights for
the broadcasting of lawfully published phonograms is already subject to payment of equitable
remuneration (Article 8(2) of the Rental and Lending Directive 2006/115/EC), which payment
is shared between the relevant performers and phonogram producers. In order to achieve
both efficient rights management, as encouraged by Recital 26 of the 2001 Copyright
(InfoSoc) Directive, and a fair share for all right-holders also for the on-demand use of
broadcast productions, it is therefore appropriate to complement this remuneration regime by
a mandatory collective licensing scheme for such use.
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Amendment 11
Proposal for a directive amending act
Recital 19
Text proposed by the Commission
Amendment
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/EC
Article 10a paragraph 2
Text proposed by the Commission
Amendment
Justification
This provision is essential for performers to enjoy all the royalties due to them for the
extended period, against a refusal by labels, on grounds that advance payments to the artists
have still not been recouped. Without this additional provision, the extension of the term of
protection may ultimately only be beneficial to a minority of featured artists.
Amendment 14
Proposal for a directive amending act
Article 1 point 4
Directive 2006/116/EC
Article 10a paragraph 4 subparagraph 2
Text proposed by the Commission
Amendment
deleted
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Amendment
5. Member States shall ensure that the
right to obtain an annual supplementary
remuneration referred to in paragraph 3 is
administered by the collecting society.
EN
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Amendment
5a. Collecting societies shall distribute
those remunerations on an individual
basis and taking into account the use of
each performers performances.
Justification
It is essential that collecting societies distribute in the most precise way and on individual
basis the remuneration collected on behalf of performers.
Amendment 17
Proposal for a directive amending act
Article 1 point 4
Directive 2006/116/EC
Article 10a paragraph 6 subparagraph 1
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Amendment
Justification
The obligation for performers to act jointly is not realistic.
Amendment 18
Proposal for a directive amending act
Article 1 point 4
Directive 2006/116/EC
Article 10a paragraph 6 subparagraph 2
Text proposed by the Commission
Amendment
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Justification
Tough the introduction of the use it or loose it clause is welcome, it should be made more
flexible. If the rights are reverted to the performer, this performer should be given a fair
chance to have his performance exploited before loosing again the rights. Therefore a more
reasonable period of time, 5 years, should be given to the performers to make the new
exploitation possibility feasible.
Amendment 19
Proposal for a directive amending act
Article 1 point 4
Directive 2006/116/EC
Article 10a paragraph 6 a (new)
Text proposed by the Commission
Amendment
6a. Where a performer is entitled
to recurring payments, neither advance
payments nor any contractually agreed
deductions shall be deducted from the
payments to the performer after the
moment at which, by virtue of Article 3(1)
before amendment by Directive [insert the
number of this amending directive]/EC,
the performer would be no longer
protected.
Justification
This provision is essential for performers to enjoy all the royalties due to them for the
extended period, against a refusal by labels, on grounds that advance payments to the artists
have still not been recouped. Without this additional provision, the extension of the term of
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Amendment
Article 2a
No later than ... *, and every four years
thereafter, the Commission shall submit
to the European Parliament, the Council
and the European Economic and Social
Committee a report on the application and
effects of this Directive in which inter
alia, on the basis of specific information
supplied by the Member States,
consideration is given to the effectiveness
of the measures taken, when this Directive
was revised, in the light of the objectives
pursued. The Commission shall examine
in particular whether extension of the
duration of rights has had a positive effect
on the social situation of performers and
on musical output and whether additional
measures appear appropriate in order to
attain those objectives.
* Three years after the deadline for transposition
of this Directive.
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EXPLANATORY STATEMENT
The rapporteur supports the Commission proposal which aims to improve the social situation
of performers, and in particular sessions musicians, taking into account that performers are
increasingly outliving the existing 50 year period of protection for their performances.
The main proposal of Directive involve extending the term of protection for performers and
phonogram producers countries from 50 to 95 years but they also provide for several
accompanying measures such as establishing a fund for session musicians and introducing
use it or lose it clauses in contracts between performers and phonogram producers.
Legally, the proposals involve amending Directive 2006/116/EC of 12 December 2006 on the
term of protection of copyright and certain related rights. That Directive codified and
superseded the earlier Directive 93/98/EEC on the term of protection of copyright and certain
related rights (often referred to as the Term Directive) without making substantive changes.
The intention of the proposals is to benefit both performers and record producers.
The extended term would benefit performers who could continue earning money over an
additional period. A 95-year term would bridge the income gap that performers face when
they turn 70, just as their early performances recorded in their 20s would lose protection.
They would continue to be eligible for broadcast remuneration, remuneration for
performances in public places, such as bars and discotheques, and compensation payments for
private copying of their performances.
The extended term would also benefit the record producers. It would generate additional
revenue from the sale of records in shops and on the Internet.
The proposals also put forward a uniform way of calculating the term of protection, when it
concerns a musical composition, containing the contributions of several authors as music is
overwhelmingly co-written; EU-wide, the term of protection of a musical composition would
expire 70 years after the death of the last surviving author, be it the author of the lyrics or the
composer of the music.
Commissions proposal to apply a uniform method of calculating the term of protection of
musical compositions with lyrics whereby, when a musical composition is published with
lyrics, the term of protection will be calculated from the death of the last surviving person: the
author of the lyrics or the composer of the music.
The current differences in term of protection, particularly between Europe and the US, cause
legal uncertainty and piracy especially in the digital environment where there are no
boundaries and the works can be used at the same moment in different countries. It is an
undeniable fact that different terms of protection could help to develop the piracy:
performances that have fallen into the public domain in one country can be distributed online
from there to other countries where they are still protected. Finally, Europe is able to protect
its artists, one the most important expression of its cultural diversity.
Equalising term of protection with the U.S. would be an excellent opportunity for Europe
economy to further the progress of the EU Lisbon Strategy for growth and jobs, which
recognised the particular importance of promoting the creative industries. At a time when
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16.12.2008
OPINION OF THE COMMITTEE ON INDUSTRY, RESEARCH AND ENERGY
SHORT JUSTIFICATION
The draftswoman welcomes the proposal by the Commission on extending the term of protection
of related rights and creating additional transitory safeguard measures. The proposal recognises
the importance of performers creative and artistic contribution which needs to be properly
reflected upon in the term of protection.
The draftswoman, however, is of the opinion that, in order to better achieve those objectives, the
proposal could be further amended to take into account the economic and social reality and
recent technological developments; and therefore proposes a set of amendments along the
following main lines:
(i) extension of the scope by including audiovisual performers;
(ii) deletion of the exemption for small recorders from contributing to the fund set aside for
session musicians;
(iii) simplification of the administration of this fund;
(iv) more flexibility for the use it or loose it clause;
(v) further assessment of the making available on-line.
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another way is proposed to be deleted. Also, the same starting dates from which the duration
of protection is calculated for performers rights and for producers rights should apply (as
foreseen under Article 3, paragraph 2). (Related amendments: Amendment 1 of the draft
opinion on Recital 5; Amendment 2 of the draft opinion on Recital 7; and Amendment 10 of
the draft opinion on Article 3, paragraph 1 of Directive 2006/116/EC.)
(ii) Deletion of the exemption for small recorders from contributing to the fund set aside for
session musicians
The Commission proposed an exemption for small record producers from setting aside at least
20 percent of revenues in order to contribute to the fund created for session musicians. Such
exemption would create an unfair situation for the performers and would not strike a fair
balance between the interest of performers and of small producers. In addition, larger record
producers might also try to avoid paying supplementary remuneration by signing licensing
contracts with smaller phonogram producers. Therefore this exemption is proposed to be
deleted. (Related amendments: Amendment 4 of the draft opinion on Recital 12; and
Amendment 12 of the draft opinion on Article 10 a (new), paragraph 4, subparagraph 2 of
Directive 2006/116/EC.)
(iii) Simplification of the administration of the above fund
In order to simplify the administrative procedures, the collecting societies should be entrusted
with the administration of the above fund. (Related amendments: Amendment 5 of the draft
opinion on Recital 13; Amendment 6 of the draft opinion on Recital 14 a (new); and
Amendment 13 of the draft opinion on Article 10 a (new), paragraph 5 of Directive
2006/116/EC.)
(iv) More flexibility for the use it or loose it clause
Though the introduction of the use it or loose it clause is welcome, it should be made more
flexible. If the rights are reverted to the performer, this performer should be given a fair
chance to have his performance exploited before loosing again the rights. Therefore a more
reasonable period of time, 5 years, should be given to the performers to make the new
exploitation possibility feasible. (Related amendment: Amendment 14 of the draft opinion on
Article 10 a (new), paragraph 6, subparagraph 2.)
(v) Further assessment of on-line making available
With the increase of use of and demand for on-line services, the making available of
performances on-line should be studied in more detail. The Commission should be
encouraged to evaluate the current legal and economic situation and assess further the impacts
of this option. In the frame of such assessment particular attention should be given to the
practical administration of the claim for equitable remuneration paid for the performers (such
as how to quantify the financial benefits; and who should pay this remuneration); rules and
obligations stemming from the relevant international conventions should also be carefully
considered. (Related amendment: Amendment 9 on Recital 19 c (new)).
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AMENDMENTS
The Committee on Industry, Research and Energy calls on the Committee on Legal Affairs, as
the committee responsible, to incorporate the following amendments in its report:
Amendment 1
Proposal for a directive amending act
Recital 9
Text proposed by the Commission
Amendment
Justification
This amendment is designed to ensure that the additional term actually benefit performers.
Existing contractual arrangements must not therefore be treated as assigning the additional
term to a phonogram producer. In order to avoid co-ordination problems with respect to the
additional term, management of the rights is to be entrusted to collecting societies. This will
require collecting societies to administer the reproduction and distribution rights in relation
to fixations of performances for the extended term. Given that collecting societies will allow
for any operator to exploit the performance, there will be no need for a 'use it or lose it
provision'. Given that collecting societies will keep details of the performers whose
performances are embodied on phonograms, concerns about lack of clarity as to when a work
falls into the public domain can be avoided.
Amendment 2
Proposal for a directive amending act
Recital 12
Text proposed by the Commission
Amendment
deleted
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Amendment
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 ondemand use of broadcast production.
Justification
For the sake of simplifying the administrative procedures for, among others, radio and
television broadcasters to clear the necessary on-demand rights for their productions, the
collecting societies should be entrusted with the administration of the annual supplementary
remuneration. (Linked to amendment on Article 10 a (new), paragraph 5 of Directive
2006/116/EC.)
Amendment 5
Proposal for a directive amending act
Recital 14 b (new)
Text proposed by the Commission
Amendment
(14b) This Directive should provide for
the re-assessment of the legal protection
of performers. The digital environment
provides new possibilities for exploitation
of protected content, which should benefit
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Amendment 6
Proposal for a directive amending act
Recital 14 c (new)
Text proposed by the Commission
Amendment
(14c) In order to rebalance contracts
under which performers transfer their
exclusive rights, on a royalty basis, to a
phonogram producer, a further condition
attached to term extension should be a
'clean slate' for those performers who
have assigned those rights to phonogram
producers in return for royalties or
remuneration. In order for performers to
benefit fully from the extended term of
protection, Member States should ensure
that, under agreements between
phonogram producers and performers, a
royalty unencumbered by advance
payments or contractually defined
deductions is paid to performers during
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Amendment
(19a) If necessary, Member States should
ensure that the extension of the term of
protection of performers' rights is
accompanied by legislative provisions that
offer protection to performers for fair
contractual terms on transfer or
assignment.
Amendment 8
Proposal for a directive amending act
Article 1 point 1
Directive 2006/116/EC
Article 3 paragraph 1 sentence 2
Text proposed by the Commission
Amendment
"However,
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Amendment
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/EC
Article 10a paragraph 1
Text proposed by the Commission
Amendment
Justification
This amendment is designed to ensure that the additional term actually benefit performers.
Existing contractual arrangements must not therefore be treated as assigning the additional
term to a phonogram producer. In order to avoid co-ordination problems with respect to the
additional term, management of the rights is to be entrusted to collecting societies. This will
require collecting societies to administer the reproduction and distribution rights in relation
to fixations of performances for the extended term. Given that collecting societies will allow
for any operator to exploit the performance, there will be no need for a 'use it or lose it
provision'. Given that collecting societies will keep details of the performers whose
performances are embodied on phonograms, concerns about lack of clarity as to when a work
falls into the public domain can be avoided.
Amendment 11
Proposal for a directive amending act
Article 1 point 4
Directive 2006/116/EC
Article 10a paragraph 2
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Amendment
Justification
This amendment is designed to ensure that the additional term actually benefit performers.
Existing contractual arrangements must not therefore be treated as assigning the additional
term to a phonogram producer. In order to avoid co-ordination problems with respect to the
additional term, management of the rights is to be entrusted to collecting societies. This will
require collecting societies to administer the reproduction and distribution rights in relation
to fixations of performances for the extended term. Given that collecting societies will allow
for any operator to exploit the performance, there will be no need for a 'use it or lose it
provision'. Given that collecting societies will keep details of the performers whose
performances are embodied on phonograms, concerns about lack of clarity as to when a work
falls into the public domain can be avoided.
Amendment 12
Proposal for a directive amending act
Article 1 point 4
Directive 2006/116/EC
Article 10a paragraph 2 a (new)
Text proposed by the Commission
Amendment
2a. Where a performer has transferred his
exclusive rights for a recurring payment,
no advance payments nor contractually
defined deductions shall be deducted from
the recurring payment due to the
performer.
Amendment 13
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Amendment
Justification
This amendment is designed to ensure that the additional term actually benefit performers.
Existing contractual arrangements must not therefore be treated as assigning the additional
term to a phonogram producer. In order to avoid co-ordination problems with respect to the
additional term, management of the rights is to be entrusted to collecting societies. This will
require collecting societies to administer the reproduction and distribution rights in relation
to fixations of performances for the extended term. Given that collecting societies will allow
for any operator to exploit the performance, there will be no need for a 'use it or lose it
provision'. Given that collecting societies will keep details of the performers whose
performances are embodied on phonograms, concerns about lack of clarity as to when a work
falls into the public domain can be avoided.
Amendment 14
Proposal for a directive amending act
Article 1 point 4
Directive 2006/116/EC
Article 10 a paragraph 4 subparagraph 2
Text proposed by the Commission
Amendment
deleted
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Amendment
5. Member States shall ensure that the
right to obtain an annual supplementary
remuneration referred to in paragraph 3 is
administered by the collecting society.
Justification
For the sake of simplifying the administrative procedures, the collecting societies should be
entrusted with the administration of the annual supplementary remuneration. (Linked to
amendment on Recital 13.)
Amendment 16
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Amendment
5a. With respect to the exercise of rights
concerning on-demand services by
broadcasters relating to their radio or
television productions incorporating
music from lawfully published
phonograms, Member States shall ensure
that the rights of performers and
phonogram producers to grant or refuse
authorisation for such use shall be
exercised solely through the collecting
society which has been established for
collecting and distributing the
remuneration for broadcasting such
phonograms.
Justification
Although it is possible for the rights of copyright holders to fair remuneration to be cleared
through the relevant collecting society, there is no corresponding legal obligation in relation
to the associated rights of performers.
The proposed provision would make it easier for broadcasters to clear the relevant rights,
ensure the rightholders received fair remuneration and allow Europe's citizens access to
culturally, historically and politically important material from broadcasters' archives.
Amendment 17
Proposal for a directive amending act
Article 1 point 4
Directive 2006/116/EC
Article 10a paragraph 6 subparagraph 1
Text proposed by the Commission
Amendment
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Amendment 18
Proposal for a directive amending act
Article 1 point 4
Directive 2006/116/EC
Article 10a paragraph 6 subparagraph 2
Text proposed by the Commission
Amendment
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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 more
reasonable period of time, 5 years, should be given to the performers to make the new
exploitation possibility feasible.
Amendment 19
Proposal for a directive amending act
Article 1 point 4 a (new)
Directive 2006/116/EC
Article 10a a (new)
Text proposed by the Commission
Amendment
(4a) The following Article shall be
inserted:
"Article 10aa
Where a performer has transferred or
assigned the exclusive right to authorise
or prohibit the making available to the
public, by wire or wireless means, in such
a way that members of the public may
access them from a place and at a time
individually chosen by them, of the
fixation of his performance, that
performer shall retain the right to obtain
an equitable remuneration to be paid by
the user for the making available to the
public of his fixed performance.
The right of the performer to obtain an
equitable remuneration for the making
available to the public of his performance
cannot be waived.
This remuneration is collected and
administered by a performers collecting
society."
Justification
A remuneration to the performers has to be recognised by those who make the performance
available to the public.
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PROCEDURE
Title
References
Committee responsible
JURI
Opinion by
Date announced in plenary
ITRE
2.9.2008
Drafts(wo)man
Date appointed
Erna HennicotSchoepges
25.9.2008
Discussed in committee
13.11.2008
Date adopted
11.12.2008
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0:
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12.12.2008
OPINION OF THE COMMITTEE ON THE INTERNAL MARKET AND CONSUMER
PROTECTION
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Secondly, the current proposal is referring to allowing the performer a reasonable time to have
his performance, for which the rights are about to expire, exploited. However, in the proposal
this one year is suggested for this. Your draftsperson does not consider this as a reasonable
time and takes the view that five years is more appropriate in this respect.
Your rapporteur is also proposing to include an amendment calling upon the Commission to
report to the European Parliament and the Council on the operation of the transitional
measures after five years.
AMENDMENTS
The Committee on the Internal Market and Consumer Protection calls on the Committee on
Legal Affairs, as the committee responsible, to incorporate the following amendments in its
report:
Amendment 1
Proposal for a directive amending act
Recital 5
Text proposed by the Commission
Amendment
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
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Amendment
Justification
The creative contribution of all performers should be recognised and reflected in the
modification of the directive. To achieve this goal, the scope of the proposal should be
extended so that audiovisual performers could also benefit from the extended term of
protection; therefore the distinction between fixation of the performance in a phonogram or in
another way is proposed to be deleted. (Linked to the amendment on Article 3 - paragraph 1
of Directive 2006/116/EC.)
Amendment 3
Proposal for a directive amending act
Recital 9
Text proposed by the Commission
Amendment
(9) Member States should remain free to
adopt provisions on the interpretation,
adaptation, termination and further
execution of contracts governing the
transfer or assignment of the rights of the
performer in the fixation of his
performance to a phonogram producer
concluded before the extension of the
term of protection resulting from this
Directive.
Justification
It does not appear suitable that the proposed changes to Directive 2006/116/EC modify
Member States' rules on the interpretation, adaptation, termination and further execution of
contracts on the transfer or assignment of performers' rights to a phonogram producer.
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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 act
Recital 12
Text proposed by the Commission
Amendment
deleted
Amendment 5
Proposal for a directive amending act
Recital 13
Text proposed by the Commission
Amendment
Amendment 6
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Amendment
(14a) In order to rebalance contracts
under which performers transfer their
exclusive rights, on a royalty basis, to a
phonogram producer, a further condition
attached to term extension should be a
'clean slate' for those performers who
have assigned those rights to phonogram
producers in return for royalties or
remuneration. In order for performers to
benefit fully from the extended term of
protection, Member States should ensure
that, under agreements between
phonogram producers and performers, a
royalty unencumbered by advance
payments or contractually defined
deductions is paid to performers during
the extended period.
Justification
This provision is essential for performers to enjoy all the royalties due to them for the
extended period, against a refusal by labels, on grounds that advance payments to the artists
have still not been recouped. Without this additional provision, the extension of the term of
protection may ultimately only be beneficial to a minority of featured artists.
Amendment 7
Proposal for a directive amending act
Recital 15 a (new)
Text proposed by the Commission
Amendment
(15a) Where a phonogram contains the
fixation of the performances of a plurality
of performers, Member States should be
free to decide whether the performers may
terminate the transfer or assignment
jointly or individually.
Amendment 8
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Amendment
Justification
The discrimination between music and audiovisual performers is totally unacceptable as the
Directive 93/98/EEC,whose codified version is Directive 2006/116/EC doesnt make any
discrimination between performers), so create different regimes for the same category
performers would be a discrimination under the European Law and against national
treatment. Furthermore there is no reason for such discrimination.
Amendment 9
Proposal for a directive amending act
Article 1 point 4
Directive 2006/116/EC
Article 10a paragraph 4 subparagraph 2
Text proposed by the Commission
Amendment
deleted
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Amendment
5. Member States shall ensure that the
right to obtain an annual supplementary
remuneration referred to in paragraph 3 is
administered by the collecting society.
Justification
For the sake of simplifying the administrative procedures, the collecting societies should be
entrusted with the administration of the annual supplementary remuneration. (Linked to
amendment on Recital 13)
Amendment 11
Proposal for a directive amending act
Article 1 point 4
Directive 2006/116/EC
Article 10a paragraph 6 subparagraph 1
Text proposed by the Commission
Amendment
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Justification
The obligation for performers to act jointly is not realistic.
Amendment 12
Proposal for a directive amending act
Article 1 - point 4
Directive 2006/116/EC
Article 10a - paragraph 6 subparagraph 2
Text proposed by the Commission
Amendment
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The obligation for performers to act jointly is not realistic. Moreover, recital 16 is referring
to allowing the performer a reasonable time to have his performance, for which the rights are
about to expire, exploited. However, one year is not considered as a reasonable time, and five
years are more appropriate.
Amendment 13
Proposal for a directive amending act
Article 1 - point 5 a (new)
Directive 2006/116/EC
Article 11 a (new)
Text proposed by the Commission
Amendment
(5a) the following Article shall be
inserted:
"Article 11a
Reporting
Within five years of the date of entry into
force of Directive .../.../EC of the
European Parliament and of the Council
of...*, the Commission shall submit to the
European Parliament and to the Council
a report on the operation of the provisions
of Article 10a(3) to (5) of this Directive.
* OJ: please insert the number and date of this
Directive."
Justification
The reporting will allow the European Parliament and the Council to monitor the effect of
the changes, in particular in relation to the transitional measures.
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PROCEDURE
Title
References
Committee responsible
JURI
Opinion by
Date announced in plenary
IMCO
2.9.2008
Drafts(wo)man
Date appointed
Emmanouil
Angelakas
10.9.2008
Discussed in committee
10.11.2008
Date adopted
2.12.2008
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:
0:
Maddalena Calia
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10.12.2008
OPINION OF THE COMMITTEE ON CULTURE AND EDUCATION
SHORT JUSTIFICATION
The proposal aims to improve the social situation of performers, and in particular sessions
musicians, taking into account that performers are increasingly outliving the existing 50 year
period of protection for their performances.
The large scale production of phonograms is essentially a phenomenon that commenced in the
1950s. If nothing is done, over the next 10 years an increasing amount of performances
recorded and released between 1957 and 1967 will lose protection. Once their performance
fixed in a phonogram is no longer protected, around 7000 performers in any of the big
Member States and a correspondingly smaller number in the smaller Member States will lose
all of their income that derives from contractual royalties and statutory remuneration claims
from broadcasting and public communication of their performances in bars and discotheques.
This affects featured performers (those who receive contractual royalties) but especially the
thousands of anonymous session musicians (those who do not receive royalties and rely solely
on statutory remuneration claims) who contributed to phonograms in the late fifties and sixties
and have assigned their exclusive rights to the phonogram producer against a flat fee payment
('buy out'). Their 'single equitable remuneration' payments for broadcasting and
communication to the public, which are never assigned to the phonogram producer, would
cease.
The draftsman is very supportive of the Commission proposal - it provides extended benefits
for performers and for phonograph producers, and in particular the clauses relating to the 20%
levy and the "use it or lose it" clause both ensure that performers, and session musicians in
particular, will be benefit significantly from the extension of term, and that their rights are
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well protected.
The draftsman believes that the 2 million limit for producers is not necessary, as this may
prevent some performers from receiving the revenue they need, so recommends that it be
removed. Similarly, the proposals to remove the rights from the performers should be
removed as this could lead to artists and performers being disadvantaged financially.
The draftsman strongly supports the use of net revenue as the measure for the 20% levy ensuring that producers can deduct reasonable costs directly related to the administration of
the term extension of the phonogram. It must be ensured that only those costs directly related
can be deducted, in order to ensure fair and consistent remuneration for performers.
AMENDMENTS
The Committee on Culture and Education calls on the Committee on Legal Affairs, as the
committee responsible, to incorporate the following amendments in its report:
Amendment 1
Proposal for a directive amending act
Recital 5 a (new)
Text proposed by the Commission
Amendment
(5a) The new technologies offer the
possibility of the digital distribution of
phonograms in legal online services.
Within this framework, phonograms from
previous years are included, thereby
creating the opportunity to sell less
popular phonograms, which will produce
an income for older and less popular
artists.
Justification
Extending the duration of protection for related rights will increase the motivation for record
companies to digitalise their catalogues. Online distribution services will thus create new
prospects for many recordings, thereby creating new sources of income for artists.
Furthermore, the digitalisation of earlier phonograms will provide income for older or less
popular artists who will benefit from so-called 'longtail sales'.
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Amendment 2
Proposal for a directive amending act
Recital 5 b (new)
Text proposed by the Commission
Amendment
(5b) The European Parliament asks the
Commission to launch an impact
assessment procedure similar to that
carried out for the music sector to
consider whether there is a need to extend
the term of protection that currently
applies in the audiovisual sector (artists
performers, producers and broadcasters).
Justification
In principle, the creative contribution of all performers should be recognised and reflected in
the directive. However, as no impact assessment has been conducted by the European
Commission on the consequences of a possible extension of the term of protection for
performers in other sectors, such an extension is not reasonable at this stage. Therefore the
Commission is hereby mandated to conduct an impact assessment on the audiovisual sector.
Amendment 3
Proposal for a directive amending act
Recital 12
Text proposed by the Commission
Amendment
deleted
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Justification
As the transitional accompanying measure (the 20%) will be measured on net revenues, there
will be no disproportionate costs incurred by SMEs, therefore to ensure that all performers
benefit from these monies, it is reasonable to include them within the measure.
Amendment 4
Proposal for a directive amending act
Recital 13
Text proposed by the Commission
Amendment
Amendment 5
Proposal for a directive amending act
Recital 15
Text proposed by the Commission
Amendment
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Justification
It is reasonable that phonogram producers need make available in sufficient quantity to the
public one version of the phonogram in question.
Amendment 6
Proposal for a directive amending act
Recital 16
Text proposed by the Commission
Amendment
Justification
The "use it or lose it" clause is designed to protect the rights of performers, and to ensure that
phonographic producers cannot curtail those rights unfairly. Recital 15 achieves this, and the
further measures in Recital 16 provide no further benefit to the performers - and in many
cases will lead to performers losing out.
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Amendment 7
Proposal for a directive amending act
Recital 17 a (new)
Text proposed by the Commission
Amendment
(17a) Among the accompanying
transitional measures is the mandatory
collective exercise of the rights of
performers and phonogram producers
concerning on-demand services by
broadcasters of their radio or television
productions of which music from lawfully
published phonograms is an integral part.
This system of collective rights
management complements the
remuneration regime for the broadcasting
of lawfully published phonograms under
Article 8(2) of Directive 2006/115/EC and
guarantees that, throughout the full term
of protection of lawfully published
phonograms, the relevant performers and
phonogram producers receive a fair share
of the remuneration for the on-demand
use of broadcast productions.
Amendment 8
Proposal for a directive amending act
Recital 19 a (new)
Text proposed by the Commission
Amendment
(19a) Member States should ensure that
the proposal to extend the term of
protection of performers' rights is
accompanied by legislative provisions that
offer protection to performers in the form
of fair contractual terms on transfer or
assignment.
Justification
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Amendment 9
Proposal for a directive amending act
Article 1 point 4
Directive 2006/116/EC
Article 10a paragraph 4 subparagraph 2
Text proposed by the Commission
Amendment
deleted
Justification
As the transitional accompanying measure (the 20%) will be measured on net revenues, there
will be no disproportionate costs incurred by SMEs, therefore to ensure that all performers
benefit from these monies, it is reasonable to include them within the measure.
Amendment 10
Proposal for a directive amending act
Article 1 point 4
Directive 2006/116/EC
Article 10a paragraph 5
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Amendment
Justification
It is essential that collecting societies distribute in the most precise way and on individual
basis the remuneration collected on behalf of performers.
Amendment 11
Proposal for a directive amending act
Article 1 point 4
Directive 2006/116/EC
Article 10a paragraph 5 a (new)
Text proposed by the Commission
Amendment
5a. Collecting societies shall distribute
those remunerations on an individual
basis and taking into account the use of
each performers performances.
Justification
It is essential that collecting societies distribute in the most precise way and on individual
basis the remuneration collected on behalf of performers.
Amendment 12
Proposal for a directive amending act
Article 1 point 4
Directive 2006/116/EC
Article 10a paragraph 5 b (new)
Text proposed by the Commission
Amendment
5b. With respect to the administration of
rights concerning on-demand services by
broadcasters of their radio or television
productions incorporating music from
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Amendment
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Justification
It is reasonable that phonogram producers need make available in sufficient quantity to the
public one version of the phonogram in question.
Amendment 14
Proposal for a directive amending act
Article 1 point 4
Directive 2006/116/EC
Article 10a paragraph 6 subparagraph 2
Text proposed by the Commission
Amendment
deleted
Justification
The "use it or lose it" clause is designed to protect the rights of performers, and to ensure that
phonographic producers cannot curtail those rights unfairly. Article 10, Paragraph 1,
Subparagraph 1 achieves this, and the further measures in Subparagraph 2 provide no
further benefit to the performers - and in many cases will lead to performers losing out.
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PROCEDURE
Title
References
Committee responsible
JURI
Opinion by
Date announced in plenary
CULT
2.9.2008
Drafts(wo)man
Date appointed
Christopher HeatonHarris
10.9.2008
Discussed in committee
6.11.2008
Date adopted
2.12.2008
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0:
Maria Badia i Cutchet, Katerina Batzeli, Ivo Belet, Guy Bono, MarieHlne Descamps, Vra Flasarov, Milan Gaa, Vasco Graa Moura,
Christopher Heaton-Harris, Luis Herrero-Tejedor, Ruth Hieronymi,
Manolis Mavrommatis, Doris Pack, Zdzisaw Zbigniew Podkaski,
Christa Prets, Karin Resetarits, Helga Trpel, Thomas Wise
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PROCEDURE
Title
References
16.7.2008
Committee responsible
Date announced in plenary
JURI
2.9.2008
ITRE
2.9.2008
Rapporteur(s)
Date appointed
Brian Crowley
22.9.2008
Discussed in committee
4.11.2008
Date adopted
12.2.2009
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0:
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IMCO
2.9.2008
CULT
2.9.2008
20.1.2009
17
5
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