Improbable Match: Open Licences And Collecting Societies In Europe

By Catherine Saez
A French musical group has signed a contract with French collecting society Sacem allowing the exclusion of the group’s internet rights that some claim opens a door to a new model where authors could manage their internet rights while the collecting society administers all other rights related to the use of the work. But others see remaining concerns.

French authors still cannot put their work under free licences, such as Creative Commons, for non-commercial use while being members of Sacem, they said. Some European collecting societies are trying to find a compromise.

Frederic Fieffe from contractee Petit Homme told Intellectual Property Watch that two years ago he asked Sacem if the group could post its own music directly on the internet with free access, without having to ask the collecting society’s authorisation. But Sacem refused, Fieffe said, insisting that they should seek the collecting society’s authorisation for each song and justify the free posting. Fieffe persisted in his demand and ultimately obtained a favourable outcome.

In June, the group signed a contract with Sacem excluding their internet protocol, wireless application protocol and similar protocols, giving Petit Homme the freedom to post to open access websites. “We hope that is a step ahead,” Fieffe said.

For Philippe Axel, author and adamant advocate of free licensing on the internet, the contract signed by Petit Homme is a historical benchmark for copyrights and a welcome move on Sacem’s part. His enthusiastic posting about the contract signing drew some attention.

However, this arrangement does not seem to solve the problem that authors face if they want to adopt a Creative Commons licence (which generally permits sharing of content for non-commercial purposes) and at the same time want to collect royalties from Sacem when their work is used for commercial purposes.

“There was a lot of noise and incomprehension” around Petit Homme’s contract, Mélanie Dulong from Creative Commons France told Intellectual Property Watch. “We have been trying to solve the problem for the last five years to no avail.”

According to a Sacem’s representative the possibility of separating internet rights from the rest of the author’s contribution is nothing new. Article 34 of the society’s statutes allows authors to withdraw their contribution on certain types of rights, in particular rights relating to internet. She told Intellectual Property Watch that not only newcomers were given this flexibility but members also could amend their contracts.

Sacem, which counts 116,000 members and 482,021 registered works, according to their website, said that their statutes have incorporated different categories of rights since the 1970s and included specific rights related to the internet in 2007. And although a rare event, a few authors have asked to withdraw some of their rights, she said.

The problem that prevents Creative Commons licences from being applied in France in parallel with Sacem’s rules is that Creative Commons coverage does not stop at the internet’s doorstep, it is intended to cover material offline as well. But a solution might be that “commercial uses after a Creative Commons licence could be managed collectively and non-commercial uses could be managed individually,” Dulong said.

But this is not the practice, as French authors give their exclusive rights to Sacem, including on non-commercial use. “We have discussed for years with Sacem without any luck, but our colleagues in the Netherlands and in Denmark are working with [the Dutch and Danish collecting societies] Buma Stemra and Koda to try to achieve an effective compatibility between Creative Commons and collective management,” she said.

In the United States, collecting societies do not have exclusive rights on the works of authors, so the compatibility problem does not arise, she added.

The collaboration between Creative Commons Netherlands and the Dutch collecting society Buma Stemra is a first of its kind, Paul Keller from Creative Commons told Intellectual Property Watch. It has been started in August 2007 as a pilot project and was reconfirmed for another year. “Creative Commons would have liked it to go on indefinitely, but on the other hand for Buma Stemra this is a very substantial change and they are being very careful from this perspective,” he said.

Willem Wanrooij from Buma Stemra told Intellectual Property Watch that the pilot was tried “to see what opportunities arise, and complications may possibly occur.” After one year, only 12 to 15 authors have chosen to use the opportunity. “Buma Stemra membership is not showing much interest in the pilot” so far, he said. And the collecting society will use the second year to investigate why there is so little interest in using the project.

For Sacem, the raison d’être of a collecting society is to protect authors and their income. It does not view its calling as issuing free use permissions, the Sacem representative said. Moreover, free use might not be in the best interest of authors as non-commercial use could sometimes be misappropriated.

“The Creative Commons approach is somewhat brisk on that subject” as people in general need to draw income from their activity and most authors, notably those who are not also performing, do draw most of their income from royalties paid by collective societies. “Creative Commons licences seem like a limiting factor to copyrights and puts additional pressure on authors,” she said. “They are not compatible with the functioning of collecting societies.”

European Context

The new European antitrust decision taken in July preventing “24 European collecting societies from restricting competition by limiting their ability to offer their services to authors and commercial users outside their domestic territory” might draw authors towards those countries which are offering compatibility between Creative Commons licences and collecting societies.

However, the freedom to choose a collecting society outside of one’s country of residence has been in existence for several years through the 2005 Recommendation of the European Commission decision, said Wanrooij. Buma Stemra has service contracts with a number of foreign rights owners, he said.

“We are exploring, as the first collecting society in the world, whether a formula such as Creative Commons could co-exist with the commercial exploitation of rights without putting that exploitation in danger,” said Wanrooij.

“Creative Commons would like those collaborations with collecting societies to spread to other countries as Creative Commons applications works best on the internet where the concept of national boundaries is artificial anyway,” Keller said.

Catherine Saez may be reached at csaez@ip-watch.ch.