Report on Copyright Protection

8/9/2019 Report on Copyright Protection

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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


Recital 5 a (new)


(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


Recital 7 a (new)


(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


Recital 8


(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


Recital 9


(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


Recital 9 a (new)


(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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Recital 12


(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


Recital 14 a (new)


(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


Recital 14 b (new)


(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


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


Amendment 10

Proposal for a directive – amending actRecital 17


(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


Recital 19


(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


Recital 19 a (new)


(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


Article 1 – point 4

Directive 2006/116/ECArticle 10a – paragraph 2


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


Justification





Amendment 14



Directive 2006/116/ECArticle 10a – paragraph 4 – subparagraph 2


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





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



Directive 2006/116/ECArticle 10a – paragraph 5 a (new)


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





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6. If, after the moment at which, by virtueof Article 3 (1) and (2) in their version


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.



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





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


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





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





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Amendment 20


Article 2 a (new)


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


Recital 9


(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




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




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






Amendment 2


Recital 12



measure should not entail a

disproportionate administrative burden on

deleted


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medium by reason of the annual revenue

achieved with the commercial


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


Recital 13


(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


Recital 14 a (new)


(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


Recital 14 b (new)


(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


Recital 14 c (new)


(14c) In order to rebalance contracts

under which performers transfer their

exclusive rights, on a royalty basis, to a




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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Justification



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


Recital 19 a (new)


(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



Directive 2006/116/ECArticle 3 – paragraph 1 − sentence 2


(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



Directive 2006/116/ECArticle 3 – paragraph 2 − sentences 2 and 3


(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





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


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









Amendment 11





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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


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


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








Amendment 12





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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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


would be no longer protected in regard of,respectively, the fixation of the


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











Amendment 14



Directive 2006/116/ECArticle 10 a – paragraph 4 – subparagraph 2


Member States may provide that a

phonogram producer whose total annual

revenue, during the year preceding that

deleted


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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


Nr. of this amending directive]/EC, the


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



Directive 2006/116/EC

Article 10a – paragraph 5


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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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






before amendment by Directive [// insert: Nr. of this amending directive]/EC, the performer and the phonogram producerwould be no longer protected in regard of,


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


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





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


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


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


Article 1 – point 4 a (new)

Directive 2006/116/ECArticle 10a a (new)


(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


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


Recital 5


(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


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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Recital 7


(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


another way is proposed to be deleted. (Linked to the amendment on Article 3 - paragraph 1

of Directive 2006/116/EC.)

Amendment 3


Recital 9


(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




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



measure should not entail a

disproportionate administrative burden on





medium by reason of the annual revenueachieved with the commercial


deleted

Amendment 5


Recital 13


(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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Recital 14 a (new)


(14a) In order to rebalance contracts

under which performers transfer theirexclusive rights, on a royalty basis, to a




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


Justification





Amendment 7


Recital 15 a (new)


(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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Directive 2006/116/ECArticle 3 – paragraph 1 – indent 1


- if a fixation of the per

Date post:	01-Jun-2018
Category:	Documents
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