Collective management of copyrights on-line (debate) 
President
The next item is the oral question by Giuseppe Gargani on the collective management of copyrights on-line - B6-0459/2008).
Jacques Toubon
Madam President, this question is central to the future cultural economy of Europe. Despite the existence of the Directive on copyright in the information society the situation in terms of the collective management of copyright and related rights for online services is extremely complex, particularly because of the territorial nature of copyright law and the absence of a pan-European licensing system. This situation has been made even more complicated by the lack of a coherent policy on the part of the European Commission, with the Directorate-General responsible for the single market and copyright, on the one hand, and the DG for competition policy, on the other, often acting for their own account and without any overall view of the sector concerned, especially as regards the interests of the creative talents of Europe.
In fact, by refusing to legislate and also by ignoring the different resolutions adopted by Parliament and opting instead to attempt to regulate this sector by way of recommendations and administrative decisions the Internal Market and Services Directorate-General has created a climate of legal uncertainty. Against this background we now have the Directorate-General for Competition starting legal proceedings against a player in this sector that was only trying to act in compliance with the Commission recommendation of 2005.
Thus the Commission took this decision against CISAC in July. It did not impose financial penalties but rather sought to change the way that CISAC and its member associations operated. This situation reflects the fact that the European Commission chose to ignore the warnings that had been expressed by Parliament, particularly in its resolution of 13 March 2007, which also contained concrete proposals for controlled competition as well as for the protection and encouragement of minority cultures within the European Union.
Moreover, since then we have seen a whole series of initiatives, only one of which has been legislative in nature: a far-fetched appraisal of the recommendation on collecting societies, an assessment report and Green Paper on the 2001 Directive, questions about home copying, free access by way of a decision of the Directorate-General for Research to 20% of the calls for tender under the Seventh Framework Programme, a time extension to the rights of performing artists, for which a directive is to be considered, and so on.
This is why the Committee on Legal Affairs has posed the following question: does the Commission not think that it would be preferable to make sure that any changes imposed, for example on CISAC members, should be subject to a broad consultation of all the interested parties so as to put an end to the incongruity of the present legal situation that has resulted from the divergent positions adopted by the Commission? Does the European Commission intend to reconsider its policy in this sector in the light of Parliament's resolution of 13 March 2007 so that a global approach may be found that takes into account not only the interests of the users but also the interests of the licence holders and of the creative community? We are convinced that the CISAC case demonstrates that the approach the Commission has taken by adopting non-mandatory provisions, or 'soft law' as it is called, or by way of purely administrative decisions, is inconsistent and contrary to the principle of legal certainty because the parties affected by it have no means of appeal or discussion.
Tomorrow the Commission intends to continue with this 'soft law' approach by adopting another recommendation, this time on creative content online, which will also deal with the issue of multi-territory licensing. This will not be a recommendation under the codecision procedure. Does the Commission plan to involve Parliament in drawing up this recommendation in an effective manner? Or, in this sector that is so crucial for the future economy and culture of Europe, is the Commission once again going to ignore those who represent the Member States and their citizens?
For this reason I have two suggestions to make. Firstly, as it has done for home copying, the Commission should put in place a platform for all the stakeholders so that this dossier can be opened and examined by all those who have a need to know. Parliament, for its part, will give its opinion either way. The Committee on Legal Affairs has now set up an ad hoc working group on copyright issues with a remit to present all the stakeholders with a clear long-term global vision of intellectual and artistic property and of its role in the knowledge and cultural economy. This group is to hold its first meeting tomorrow morning.
Charlie McCreevy
Member of the Commission. - Madam President, I believe that these questions should be placed in a wider context, as the debate on how to license music on the internet is gaining momentum. There is more music available to consumers on the internet than ever before, yet hardly any of it is properly licensed. Almost none of it, therefore, produces any revenue for artists or music producers. In 2006, the ratio of illegal to legal song downloads was 40 to 1, and over 20 billion recordings are illegally downloaded every single year. So something is wrong here.
Online operators say that licensing of music in Europe is too complicated, which is why there is still no legal online service available in any of the new Member States.
This is the background to the series of questions we have received from Mr Gargani. Everybody agrees that we need to simplify the licensing of music for internet downloads and mobile phones. But nobody wants to lose out in the process.
Is there a simple way to achieve licences that cover all rights all over Europe? In answering this question, we must bear in mind that most authors, composers and performers live off the revenue they generate with copyright. This is how they make ends meet every month.
How, then, do we balance efficiency and fairness? The Commission made its recommendations in 2005. As the 2008 evaluation report on these recommendations shows, some owners of copyright, such as the music publishers, have followed our advice and set up Europe-wide licences. While small collecting societies fear that these platforms leave no room for niche repertoire, we now have to make sure that they do. The signs are encouraging. There are already EU licences for small music publishers. While these efforts are ongoing, we should not legislate prematurely. The ongoing restructuring should be given a chance. But we should remain vigilant so that small repertoire does not lose out.
Let me now say a word on the antitrust decision that the Commission recently adopted in the CISAC case. The decision prohibits anti-competitive practices by European collecting societies which limit their ability to offer their services to authors and online operators. The removal of the restrictions will allow authors to choose which collecting society manages their copyright. It will also make it easier for online operators to obtain licences for exploitation in several countries from a single collecting society of their choice.
The 2005 Recommendation and the CISAC Decision are governed by the same principles: they both encourage the removal of restrictions which prevent authors and composers from freely choosing their collecting societies, and rights managers from delivering multi-territorial licences.
Concerning the preparation of the recommendation on creative content online, the Commission plans to adopt this recommendation during the first quarter of 2009. The 2008 public consultation on creative content online has shown that the topic of multi-territory licensing for audiovisual works is not ripe to be dealt with in the planned recommendation.
The Commission has published a call for tender for an independent study on multi-territory licensing of audiovisual works, with the aim of analysing both the economic and cultural aspects of such practices. The Commission is currently analysing the tenders and the results of the study should become available by the end of 2009. We are working closely with both the European Parliament and the Member States on developments concerning creative content online, in particular by participating in the various hearings organised by the European Parliament and the discussions in the audiovisual working group of the Council of Ministers.
Since the developments concerning creative content online take place at a rapid pace, there are no consolidated practices on which to base compulsory legislation at this stage. At this point in time, such legislation at a European level would possibly jeopardise the development of new business models and the cooperation processes among stakeholders. For this reason, a recommendation seems the most appropriate means to facilitate the shift of the creative content sector to the online environment.
Mr Toubon made the interesting suggestion that maybe there should be a working group on small collecting societies, and I think that this is a very excellent idea. The Commission would be prepared to be a facilitator and try to find a role for small societies in the online world so we will take up his suggestion.
Manuel Medina Ortega
on behalf of the PSE Group. - (ES) Mr Toubon has given a magnificent exposé on the problem in legal terms. This saves me from having to tackle this aspect.
I should therefore like to look at this issue on a much more practical level. On the matter of copyright, the Directorate-General for Competition starts from the basis that authors have the same weight as the large multinational companies that manage the world of media. This is not true.
Authors and performers are in fact workers. There may indeed be some stars - such as those who appear in magazines - who have some choice. However, the vast majority of authors, performers and creators do not have this choice. Their position is virtually the same as that of workers organised through their copyright societies.
To claim that these thousands, tens of thousands, even hundreds of thousands of authors, who work in Europe on a daily basis and who obtain their income through their societies of authors, operate as if they were multinational companies is a fiction that has nothing to do with reality.
If we fail to start from the basis that the current European societies of authors each represent the specific interests of thousands of members and that they act as such, we will never grasp the reality.
I believe that the Commission is probably just doing its job, but when it talks about studies, I start to feel rather concerned, because who is carrying out these studies, who is paying for these studies and what pressure groups are having an influence on them?
That is why, in the European Union, we have a democratic system between the Member States and within the Member States. It is the responsibility of the Members of the European Parliament to humbly assume the role of expressing, in this House, the social reality which is perhaps not found in offices or in major economic studies.
We find ourselves in a situation whereby, if we are not careful, if we try to deregulate this sector as has been done in others, we will end up killing creation, which is one of our unique assets. Despite all its problems, Europe is characterised by great creation. We will end up with an audiovisual industry that is absolutely devoid of content; you can already see this in other countries. I therefore believe that, at this moment in time, some of our efforts must be devoted to providing these creators with an institutional system that allows them to take action.
I believe that acting in the abstract, thinking that the little musician, the little composer can defend himself is absurd.
If Beethoven were alive today and creating symphonies and if he were obliged to enter the international market in order to compete with the major music multinationals, he would die of hunger. His financial situation would be much worse than it was in the 18th and 19th centuries. I believe that this is a vital point that must be conveyed.
Mr Toubon referred to our committee's decision to set up a working group on the protection of intellectual property. We hope that the Commission, and in particular Mr McCreevy, who has always been a great friend of this Committee on Legal Affairs, will be ready to cooperate with us, to convey their concerns, but also to listen. This working group will also listen to the viewpoints of the thousands of people who, at this moment in time, are humbly engaged in great intellectual work and who are allowing these audiovisual media that we are creating to be filled with content.
If not, there is a real danger, as I have said, that we will create a great audiovisual system that is absolutely empty, that can only be occupied by advertisements and that has no specific content.
As a result, Madam President, I believe that the proposal, the oral question and the motion for a resolution that we plan to table are aimed at reinforcing this independence and this unique identity of European culture, which cannot be replaced by any abstraction based on free competition.
Eva Lichtenberger
on behalf of the Verts/ALE Group. - (DE) Madam President, Commissioner, in 2004 the Committee on Legal Affairs held a hearing which focused, among other things, on the role of collecting societies. Some artistes presented a very impressive case to demonstrate the problems facing them under the current system which operates via collecting societies. You then opted for the 'soft law' legislative - or rather non-legislative - approach, which has simply created more legal uncertainty in the interim, with the result that we face increasing complaints and irritations due to the lack of clarity in the situation. This is a real problem, Commissioner.
The system which you have proposed will result in market concentration, benefiting the strong and ignoring, for example, the Convention on cultural diversity when it comes to Europe's art and culture. In this system, minority cultures, those that are not part of the mainstream or those that use minority languages will inevitably be damaged because the system simply does not take account of them.
When we asked you, in the Committee on Legal Affairs, why you had not presented proposals such as those as outlined in the Lévai report in Parliament, you said that the market would move in this direction anyway and you therefore saw no need for any change here. Commissioner, the conflicting judgments that we have recently witnessed demonstrates that this was not the right approach. What we need now, if we want to protect creative potential, is a future-oriented solution. I think that we will also have to give more thought to the binding of rights generally. Is this still sustainable in the long term in its old form, in this hardware-oriented form? Will we still achieve the necessary goals, or will this not work?
Commissioner, I do not believe that further studies and hearings are the way forward. Unfortunately, we have seen that it is always the same people who are invited, and that they represent the giants in the market, not the small players whose opinion is consequently ignored. We need a different approach and a clear legislative proposal as to how the collecting societies can and should protect these rights and assets.
Lidia Joanna Geringer de Oedenberg
(PL) Madam President, last year the European Parliament responded by way of a resolution to the Commission's 2005 recommendation concerning cross-border collective management of copyright. In its resolution Parliament called for it to be made quite clear that this recommendation only applies to the sale of music recordings on the Internet. We also called for immediate appropriate consultation with the interested parties. In addition, we asked for a draft flexible framework text to be submitted to Parliament and to the Council concerning collective management of copyright and associated rights in relation to cross-border on-line music services.
The management of copyright and associated rights in relation to online music services remains a complicated and problematic issue, in spite of the binding directive on the harmonisation of certain aspects of copyright in the information society. The difficulties are mainly due to the lack of European licences. The unclear drafting of the recommendation is a particular concern. This means that the recommendation could perhaps also be applied to other online services containing recordings, such as broadcasting services. The consequent lack of clarity regarding the use of different licensing systems creates legal uncertainty and leads to undesirable consequences, notably for online broadcasting services.
I am also sorry to note that the Commission has not taken account of Parliament's recommendations. The Commission has limited itself exclusively to monitoring and implementing the 2005 recommendations. In no way does this deal with the ongoing problems in the sector. Among other aspects, the Commission's policy reflects the decision taken in respect of the International Confederation of Societies of Authors and Composers. The Commission has excluded the possibility of any type of joint action by the societies, for instance regarding the proposal to create a transparent copyright system in Europe. This equates to leaving power in the hands of the oligarchy composed of the major companies that have entered into bilateral agreements with leading performers. It is to be expected that the result of this decision will be further restriction of choice and the disappearance of small firms from the market, to the detriment of cultural diversity.
Zuzana Roithová
(CS) The current state of the digital content market is unsustainable, fragmented and rigid owing to monopolies. I am therefore pleased how in July the Commission at least shed some light on collective management. I am concerned about the unfair contractual terms and conditions not only for authors, but also for users. I should like to believe now that Czechs and other citizens of smaller countries will be able to purchase their favourite songs, digital books or television series over the Internet, for example from iTunes and other virtual trading houses, across borders, which is actually impossible today. I should like to believe that authors will be able freely to choose collective management from any Member State and compel the management to improve the quality of services and reduce operating costs. I hope that the collective management will be able in return to offer licenses unrestricted by the borders of the home state, including European licenses, but it is not so easy. I do not believe that the Commission's July foray into the wasps' nest will really produce systemic changes in the digital content market. I would now like to ask the Commission to request an independent study of collective management as a whole and to submit a legislative text to Parliament containing an overhaul of the entire system on the basis of a proper analysis of all the specific aspects of this problem.
Jean-Paul Gauzès
(FR) Madam President, Commissioner, you have shown that you are ready to listen and to pay attention to these issues. However, I would just like to put one question to you and to make a request.
The question concerns the manner in which Parliament is to be involved with the work you are proposing to undertake. The request is that if a platform is put in place it seems essential to me that the findings, its findings, should not be decided in advance but should be the product of a true debate and I also think that the members of this platform should be representative of our economic and cultural diversity.
Charlie McCreevy
Member of the Commission. - I would like to thank the honourable Members for the range of their discussions.
The regulators should not take all the decisions. The Commission actively encourages the development of the online licensing market for music, but premature legislative intervention, without full analysis of market needs and trends, would not appear the best way of developing a healthy online retail market in Europe. However, if it becomes apparent that the Commission's current interventions cannot deliver an online licensing model fit for the 21st century, then we will consider a different approach.
It is now essential that all stakeholders, authors, performers, publishers, collecting societies and the record companies, get together and find a licensing structure that will enable the emergence of more legal online services while preserving a decent outcome for authors.
Mr Medina Ortega has alluded to the fact that it is in everybody's interest that we have a healthy cultural industry throughout Europe. I think I speak for everybody in the Commission when I say that is our goal. I think it is also proper to try to introduce a system whereby everybody benefits from creativity and culture - including the artists - and everybody can enjoy it at a reasonable cost.
So that is what we are all trying to achieve. We can have differences of opinion as to how we go about it. Over the last number of years I have heard expressions of different viewpoints, both inside this House and from groups outside Parliament. We do not always agree on how we could achieve those objectives, but I think we all know what we want to try and do.
When I suggested the platform - and it was referred to by Mr Gauzès and others - it was the need to bring together the small and big players in a particular forum, and particularly the smaller collecting societies who, I understand, feel left out in this particular debate. So that is what I was proposing there. I think our goals are the same. We certainly want to take all interests into account and arrive at a proper licensing system that is a model which is fit for the world of today, not the world of maybe 40 or 50 years ago.
President
The debate is closed.
The vote will take place on Thursday, 25 September 2008.
