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Industry stakeholders slam European Council copyright reform draft

Both public broadcaster organisation the EBU and a group representing authors of audiovisual works have expressed dissatisfaction with different aspects of the compromise position agreed by the European Council on copyright reform in the EU.

The Council’s permanent representatives committee, Coreper, agreed a position on the draft directive at the end of last week that will serve as the body’s mandate when it kicks off negotiations with the European Parliament once the latter agrees its own position.

With regard to authors rights, the draft calls for collective bargaining between rights holders and distributors to be “considered as an option” to ensure transparency and calls for a transitional period to enable organisations to adapt to new transparency requirements. Transparency requirements do not apply to agreements with collective management organsiations that are already covered by existing regulations.

The draft calls for measures to enable authors to adjust remuneration for rights that are subject to long contracts where the originally agreed remuneration becomes low relative to the revenues derived from the exploitation of the work over time, and for member states to provide an alternative dispute resolution process that avoids the need for authors and performers to go to court.

The EBU said that the agreed position had “failed to create a sensible balance between providing transparency to authors and performers on the one hand, and the workability and pragmatism required on the other”.

It said that it was concerned by an obligation to report autiomatically and individually to authors and performers on the use of their works at least once a year, arguing that such as approach places “an unprecedented burden on the creative industries at a time when they are already facing significant market disruption”.

The EBU said that broadcasters manage as many as 250,000 contracts every year with individual rightsholders.

“For EBU Members this is a very disappointing conclusion. Member States had ample opportunity to ensure pragmatism and common sense but unfortunately the conclusion will result in cumbersome bureaucratic procedures for our members,” said EBU head of European affairs Nicola Frank.

“We are disappointed that the call made from the EBU for a more balanced approach has not been taken on board. Whilst we support the principles of transparency and also fair remuneration, this conclusion is simply not practical and realistic in its ambition. Public service media play a unique role within our societies, investing over €16 billion in content every year. The capacity of our members to continue to invest would be seriously challenged if costly transparency requirements were to be established and implemented.”

The European Council draft document also includes measures that its authors say are designed to adapt exceptions and limitations to digital and cross-border dissemination of works as well as “measures to facilitate certain licensing practices as regards the dissemination of out-of-commerce works and the online availability of audiovisual works on video-on-demand platforms with a view to ensuring wider access to content”.

The directive will require member states to “provide for a negotiation mechanism allowing parties willing to conclude an agreement to rely on the assistance of an impartial body or of one or more mediators”, which could be a new organisation or an existing body.

On the other side of the rights negotiating table from the EBU’s membership, French authors copyright society SACD said that the draft represented “a missed chance” to make progress towards ensuring “a just remuneration for audiovisual and cinema authors everywhere in Europe”.

According to SACD, the failure to embed a general right to remuneration from digital platforms meant that the Council was opening the way to a worsening of the situation of an already out-of-date framework.

“In the countries in which such a right is recognised, authors’ societies can negotiate agreements, collect and distribute remuneration; in other states, when this right doesn’t exist, authors are almost assured of never being remunerated,” it said.

The collecting society said it counted on French culture minister Françoise Nyssen to press for a right to remuneration and said it now counted on the European Parliament’s judicial affairs committee adopting a more favourable position.