Microsoft Powerpoint 2009 04 24 Jakob HÃ¼ttel Om Cisac Sagen 2005 ...

The CISAC case
&
The 2005 Recommendation
24 April 2009
FEMR, Sophienberg
Jakob Hüttel, KODA
Head of International Legal Affairs
Overview: when and who
CISAC case
2005 Recommendation
1. Competition case handled by DG
1. EU recommendation issued by DG
COMP of the European Commission
MARKT of the European Commission
2. Complaints filed by broadcasters RTL 2. Addresses “the Member States and
and Music Choice Europe
all economic operators which are
involved in the management of
3. Against EEA authors collective
copyright and related rights within the
management societies and their
Community”
global umbrella organisation CISAC
3. Issued on 15 October 2005
4. Case started in 2000
Call for comments in 2007
Decision issued on 16 July 2008
2
2009

Overview: why and what
CISAC case
2005 Recommendation
5. Concerns restrictions on “competition
4. Addresses “collective cross-border
by limiting their ability to offer their
management of copyright and related
rights for legitimate online music
services to authors and commercial
services”
users outside their domestic territory”
5. Main impact on “the relationship
6. Only to rights concerning satellite,
between right holders, collective
rights managers and commercial
cable and online
users”
7. Identified three aspects
6. Concerns the right for rights holders
“to withdraw any of the online rights
a. Membership restriction
and transfer the multi territorial
b. Exclusivity provision
management of those rights to
another collective rights manager”
c. Territorial delineation
3
2009
Overview: impact
CISAC case
2005 Recommendation
8. Renegotiate reciprocal representation
7. Several multi-national music
agreements between all 25 collective
publishers have withdrawn online
management societies.
rights from collective management.
9. Remains to be seen whether new
8. The flow of rights has changed – all
cross-border licensing schemes will
authors’ rights are no longer evidently
be developed
available from collective
management societies.
10. Almost all societies have appealed
the decision
9. Collecting societies need to prove to
music publishers that they are the
best alternative for national licensing.
4
2009

Why is this relevant to you?
5
2009
Why is this relevant to you?
•
Is the CISAC decision and the 2005 Recommendation
really only relevant for music authors’ rights?
[artists, film producers, etc.]
•
Are other types of collective management in danger?
[GRAMEX, COPY-DAN, etc.]
•
Could other types of geographically delineated licensing agreements be in
danger?
[film producers, tv-broadcasters, etc.]
6
2009

2000
Timeline
2001
30 November 2000
2002
RTL files complaint about German collective management society
(CMS), GEMA
2003
RTL had requested a pan-European multi-repertoire license from GEMA.
GEMA rejected because it only holds multi-repertoire for Germany
2004
2005
4 April 2003
Music Choice Europe (MCE) files complaint about the
2006
CMS umbrella organisation, CISAC
MCE claimed that the CISAC standard contract was part of a
2007
concerted practice to avoid competition between CMS
2008
7
2009
2000
Timeline
2001
11 March 2005
2002
Commission sends information request to KODA and other societies
The Commission gathers information about the factual background of the case
2003
2004
7 July 2005
Impact assessment on a community initiative on the
2005
cross-border collective management of copyright.
2006
The Commission considers to (1) do nothing, (2) support
cross-border cooperation or (3) support rights holder’s
choice.
2007
Concludes that rights holder’s choice is the best way to
encourage cross-border licensing.
2008
8
2009

2000
Timeline
2001
15 July 2005
2002
KODA and other societies sends comments on impact assessment
It is pointed out that the Impact Assessment is based on flawed information
2003
and that the Commission ignores the fact that cultural diversity is a driving
force in the music business throughout Europe
2004
2005
18 October 2005
Commission DG MARKT issues 2005 Recommendation on
2006
“collective cross-border management of copyright and
related rights for legitimate online music services”
2007
The Commission supports rights holder’s choice, i.e. the ability for a
rights holder to withdraw online repertoire from a collective
2008
management society
9
2009
2000
Timeline
2001
31 October 2005
2002
Denmark’s Broadcasting Organisation, GRAMEX and KODA sends
joint letter to the Ministry of Culture
2003
Points out that the fragmentation of repertoire that could result from the 2005
Recommendation would bring the well functioning Danish Extended Collective
2004
Licensing schemes in danger.
2005
2006
23 January 2006
CELAS initiative is announced
2007
for pan-European licensing of
EMI repertoire
2008
10
2009

2000
Timeline
2001
2 February 2006
Based on the two pending cases (RTL and MCE), the Commission
2002
issues a Statement of Objections against KODA and all other EEA
societies for infringement of competition rules.
2003
The Commission inter alia argues that the societies have divided the European
market into national markets and that such delineation is unjustified
2004
11 April 2006
2005
KODA sends its reply to the Statement of Objections.
2006
Points out that
(1) the geographical delineation of the reciprocal mandates is based on a assessment
of how KODA’s repertoire best is handled abroad, and
2007
(2) that KODA has decided to focus on the Danish market and thus, only has obtained
mandates for Denmark
2008
(3) that societies will loose repertoire entirely if we are forced to compete on all markets
11
2009
2000
Timeline
2001
2 June 2006
Warner/Chappell’s PEDL initiative for pan-European
2002
licensing of its repertoire is announced
2003
14-16 June 2006
Oral Hearing in the CISAC case
2004
As part of the process, complainants, societies and
2005
interested third parties were invited to express their views
during an oral hearing
2006
2007
21 September 2006
The Commission issues another information request
2008
12
2009

2000
Timeline
2001
21 November 2006
2002
The Nordic societies sends a commitment proposal to the
Commission.
2003
The societies aim to find an amicable solution with the Commission and have
described a solution that makes Nordic/Baltic cross-border licensing possible.
2004
The Commission does not find the proposal interesting.
2005
7 January 2007
Most of the CISAC societies
2006
involved in the case sends a
commitment proposal to the
2007
Commission.
2008
13
2009
2000
Timeline
2001
9 June 2007
2002
The Commission decides to put the CISAC
commitments in market test
2003
The purpose of the market test is to receive feed back from
the complainants and other interested third parties.
2004
2005
July 2007
The Commission receives many replies during the market test:
2006
-DR stresses its need for a one-stop-shop [like e.g. KODA]
-RTL wants a solution that ensures that essential repertoire is not
2007
withdrawn from the system, that all societies could license multi-
repertoire multi-territorially and that societies should compete on their
administrative costs
2008
14
2009

2000
Timeline
2001
28 January 2008
Universal/SACEM announces collaboration for pan-
2002
European online licensing of Universal’s repertoire
2003
16 June 2008
Sony/ATV and GEMA announces collaboration for pan-
2004
European online licensing of SONY/ATV’s repertoire
2005
2 July 2008
Joint letter from Danish public and commercial
broadcasters TV 2, SBS, Talpa, Radioerne and Danish
2006
Broadcasting Corporation to the Ministry of Culture
2007
The broadcasters urge the Minister to look into the
fragmentation of music rights and the risk of loosing the
national one-stop-shops for rights clearance
2008
15
2009
2000
Timeline
2001
16 July 2008
The Commission issues its decision in the CISAC case
2002
The decision is not as bad as expected; in particular the societies are not fined and
CISAC is not covered by the decision at all. Also, the decision does not deem
2003
territorial delineations illegal but only requires that the societies renegotiate our
mandate agreements and thus, reconsider any territorial delineation of the mandates.
2004
30 September 2008
2005
KODA and most of the other societies appeal the
Decision to the Court of First Instance.
2006
The entire Decision is based on circumstantial evidence.
2007
21 October 2008
KODA requests interim measures
2008
[which the Court of First Instance rejects on 6 December 2008]
16
2009

State of play
CISAC case
2005 Recommendation
1. The Decision must be upheld
1. Alternative routes for licensing of
regardless of the appeal process
repertoire from multinational music
publishers have been established
2. The societies had until 15 March
2009 to implement the decision
2. KODA is negotiating conditions for
how to continue to license these
rights in Denmark
3. The Commission is currently
reviewing all correspondence and
new agreement made by the
3. By collaborating with the music
societies
publishers KODA aims to re-establish
a blanket license which covers all
repertoire for licensing in Denmark
17
2009
The CISAC case
&
The 2005 Recommendation
24 April 2009
FEMR, Sophienberg
Jakob Hüttel, KODA
Head of International Legal Affairs