Christian Engström, Pirat

22 november 2009

A collecting society’s views on orphan works

Filed under: Copyright Reform,English,informationspolitik,Orphan Works — Christian Engström @ 12:34

GESAC, European Grouping of Societies of Authors and Composers

I got a mail on the subject of orphan works from Véronique Desbrosses, who is Director General of GESAC, which is an umbrella organization for collecting societies. She wanted to clarify the position of the collecting societies after the hearing on orphan works that the European Parliament’s legal affairs committee JURI held on November 10.

She has a very different view on the subject than I do, so I will quote the entire mail before giving my comments. Ms Desbrosses has confirmed that it  reflects GESAC’s official position.

She wrote:

Dear Mr Engström,

I would like to react to certain statements made at the seminar on orphan works organized by the Legal Committee on 10 November.

Amongst other things, it was claimed that entrusting authors’ societies with the management of orphan works would give rise to a conflict of interest because it would not be to their advantage to identify the authors. The argument being that the fewer authors they found, the greater the financial benefit to themselves (by keeping the remuneration paid for such works). This could not be further from the truth, because authors’ societies have no commercial purpose and so there is no possibility of profiting financially. The full amount of all copyright remunerations collected by management societies (less any cultural and social deductions provided for in their founding instruments or by law) are paid out to the authors.   Collective management societies are best placed to find the holders of rights in orphan works, not least thanks to the databases they keep.  The point also has to be made that collective management largely precludes works becoming orphaned. The number of orphan musical works, for example, is very small because almost the entire repertoire is managed collectively by authors’ societies.

The libraries also called for an exception for the free use of orphan works. We do not see this as acceptable, since it would effectively draw an arbitrary distinction between works whose rights holders are known, and works whose rights holders are as yet unidentified.  What possible justification can there be for allowing a work to be used free of charge on the pretext that its author has not yet been identified? Not to mention that making such a distinction would be apt to undermine the market by encouraging users to use only orphan or purportedly orphan works in order to avoid paying remuneration.

I trust that this information will be of interest to you.

Yours sincerely

Véronique Desbrosses

Secretary General
GESAC, European Grouping of Societies of Authors and Composers

Here are my comments on the mail:

Amongst other things, it was claimed that entrusting authors’ societies with the management of orphan works would give rise to a conflict of interest because it would not be to their advantage to identify the authors.

Exactly.

This could not be further from the truth, because authors’ societies have no commercial purpose and so there is no possibility of profiting financially.

The whole purpose of collecting societies is to collect money for the benefit of their members. To claim that they have no possibility of profiting financially is just ridiculous.

Collective management societies are best placed to find the holders of rights in orphan works, not least thanks to the databases they keep.

When a collecting society has the author of a work in their databases, it is not an orphan work. We are not discussing the works where the authors are known and have entrusted a collecting society with the task of managing the rights. Those works are not orphan.

An orphan work is a work where the author has not registered it with a collecting society, and where the collecting societies have no rights at all.

The point also has to be made that collective management largely precludes works becoming orphaned.

No, not at all. Collecting societies have been around for over a century. If the existence of collecting societies would ”largely preclude” works from becoming orphan, we wouldn’t have had the problem of orphan works in the first place.

But we do. This is why we are discussing it, why the European Commission wants to solve it, and why the legal affairs committee JURI organized the November 10 hearing in the first place. To deny that the problem exists is just silly.

The number of orphan musical works, for example, is very small because almost the entire repertoire is managed collectively by authors’ societies.

Collecting societies exist for all kinds of works, from books to music to photographs, and have existed for a long time. Yet the problem of orphan works is very real. If you look at photographs instead of music, probably the vast majority of all photographs taken during the 20th century fall in the category of orphan works.

The fact that the rights owners are known for most recorded music is not because there are collecting societies, but because 80% of the rights are owned by the four major record companies.

What possible justification can there be for allowing a work to be used free of charge on the pretext that its author has not yet been identified?

What possible justification can there be for not allowing a work to be used free of charge if the author has not even bothered to register his claim to the work?

It is not at all unreasonable to require that authors who want to control their works and get money for their use, at least register that claim so that people know where to send the money. Why shouldn’t they?

Not to mention that making such a distinction would be apt to undermine the market by encouraging users to use only orphan or purportedly orphan works in order to avoid paying remuneration.

Here the mask falls, at the very last sentence of the mail. The collecting societies don’t want our cultural heritage from the 20th century to become available. They think that this would ”undermine the market” for new works.

Whether this is a relevant fear is not the point. Personally, I feel absolutely confident that there will be a demand for new cultural works even if we manage to make our cultural heritage from the 20th century available to everybody.

But the important thing is how the collecting societies themselves see it. They have no interest in solving the problem of orphan works.

If they cannot get money for the works that they have no rights to, they prefer that the works remain unavailable in a legal limbo, so as not to ”undermine the market”.

I am very grateful to Ms Desbrosses for stating this so plainly on behalf of the collecting societies that she represents.

…………

Previous articles on orphan works:

Orphan works hearing in JURI
A librarian’s views on orphan works

Andra bloggar om: , , ,

12 kommentarer

  1. Good reply Christian. She did get it as a reply?

    Kommentar av Kluris — 22 november 2009 @ 16:08

  2. And by what right would the collecting societies be allowed to charge for works that were NOT produced by their members?

    Surely the only alternatives are either to let the actual creator to demand compensation — essentially disallowing the use of orphan works — or to agree that anyone who publish their work without making sure that they can be contacted and asked for permission, have forfeited their rights to the work in question.

    Personally I prefer the latter, but no third party, completely unknown to me, should have any right to sell my work!

    Kommentar av efjc — 22 november 2009 @ 16:34

  3. ”because authors’ societies have no commercial purpose and so there is no possibility of profiting financially.”

    If she speaks in general, then that’s not true, there’s both non-profit and private (even as in for-profit) organizations.

    And I guess one can claim that earning interest, collecting administrative fees, investing in stock funds, companies, corporations and other organizations, and even real estates, is not for commercial purposes.

    Kommentar av ST — 22 november 2009 @ 17:06

  4. In this context, rights holders essentially belong to either one of three categories:

    1. Known rights holders who are represented by one or more collecting societies (their members)
    2. Known rights holders who are not represented by any collecting society
    3. Unknown rights holders (authors of orphan works)

    I get the impression that Ms Desbrosses has confused categories 2 and 3. The collecting societies may very well have extensive databases indicating who owns the rights to what works, even for rights holders they don’t represent. As Christian points out, those works can hardly be considered ”orphan works”.

    The collecting societies are required by law (at least in Sweden) to treat all rights holder categories (1, 2 and 3) in an equal manner when it comes to remuneration for the use of their works. There is a formal distinction between categories 1 and 2, but they are explicitely put on an equal footing in Article 42 a, section 4 of the Swedish Copyright Act (my emphasis on the third sentence):

    När ett verk utnyttjas med stöd av 42 b-42 d eller 42 f § tillämpas följande. De villkor i fråga om rätten att utnyttja verket som följer av avtalet gäller. Upphovsmannen skall i fråga om ersättning som lämnas enligt avtalet och förmåner från organisationen vilka väsentligen bekostas genom ersättningen vara likställd med de upphovsmän som organisationen företräder. Upphovsmannen har dock oavsett detta alltid rätt till ersättning som hänför sig till utnyttjandet, om han begär det inom tre år efter det år då verket utnyttjades. Krav på ersättning får riktas endast mot organisationen.

    The emphasized sentence roughly translates as:

    In terms of remuneration provided under the agreement and any benefits from the organization which are essentially paid for by the remuneration, the author shall be treated equal to the authors represented by the organization.

    The distinction between categories 2 and 3 is more of a practical than formal matter. According to the law, the collecting societies are allowed to enter agreements and thus to collect remuneration also for the use of orphan works. After that, it’s up to the individual rights holder to contact the collecting society and claim his share of the remuneration within three years after his work was used due to such an agreement. It’s however part of the nature of orphan works that the rights holders seldom make themselves known to any collecting society, let alone claim any remuneration. Since the law doesn’t state that any money not claimed by the rights holders must be returned to those who paid it, after three years the collecting society is effectively allowed to keep it.

    We do not see this as acceptable, since it would effectively draw an arbitrary distinction between works whose rights holders are known, and works whose rights holders are as yet unidentified.

    Here I actually agree with Ms Desbrosses; I don’t think we should draw an arbitrary legal distinction between known and unknown authors. For this I put myself in the position of an author. Whether someone outside my circle of family and friends can find me in a telephone directory or not should not affect my legal rights, such as my right to claim compensation for the use of my work. Here I believe my opinion may differ from Christian’s, but let’s leave that argument aside for the moment; I’m just stating my position.

    I do however find it noteworthy that the collecting societies rely on precisely that arbitrary distinction between known and unknown rights holders already today, when they pay money only to the former (according to the law) but not to the latter (since the latter haven’t put forward any claims). The distinction isn’t written into law, but it’s a direct consequence of the practical difficulties associated with making payments to someone you can’t even identify.

    Another interesting point is that the Swedish Copyright Act allows individual rights holders to opt out from certain agreements the collecting societies may have entered into on their behalf. This applies to reproduction within a government entity or corporation (Article 42 b), use in education (Article 42 c), use by libraries (Article 42 d), and radio or TV broadcasts (Article 42 e).

    Of course, when someone opts out, he instantly becomes known (if he wasn’t known already). Not only is this another distinction between known and unknown rights holders, but it denies the collecting societies the right to collect money for the use of works by known authors, while their agreements still cover orphan works. The collecting societies are in part funded by the work of unknown authors, and thus have actually no incentive to identify them and put them on their payroll.

    Ms Desbrosses should not complain about creating arbitrary distinctions. She and her colleagues depend on arbitrary distinctions between different kinds of rights holders for their living. Or did she write that letter in her own spare time at no charge, for the benefit of the ”charity” activity she appearantly considers the collecting societies to be involved in?

    Christian, if you continue to engage in correspondance with Ms Desbrosses or anybody else representing the collecting societies, feel free to use whatever part you like of my reasoning above as your argument, even as we may disagree on certain finer points. Since I’m primarily expressing facts, I don’t consider myself having even any right of attribution, so please don’t put my name on it unless you need to.

    Kommentar av Anders Andersson — 22 november 2009 @ 22:17

  5. First, it is great of you to present her letter in its entirety and to give your ”adversary” a decent treatment.

    She is speaking like a politician/marketeer etc, truthful but not honest. It is technically true, the *society* (as a legal entity) has probably no purpose to make a profit for *itself*. Only for its members…

    Whatever you decide on in this matter, keep on mind that it is very hard (likely NP-hard) to find, say a detail from a photograph, in any database of registered photographs.

    The last sentence of hers could be a (very misguided) attempt to try to portray a public good in locking up the works. Many politicians are desperately trying to achieve ”growth” in the economy, and any *market* is therefore by default public good. But only if money changes hands and increases GDP…

    Kommentar av Werner — 22 november 2009 @ 22:29

  6. As soon as I saw the headline of your blog entry I almost guessed the argument from Desbrosses. The collection societies in Scandinavia can take money for the exploration of any work (not just from members) and earn 10-15% of the revenue collected for ”expenses”.

    But I would not have guessed that she was stupid enough to argue against pirates that competition from orphan works from unknown artists would undermine the market. This is no different from saying that free works published under CC licenses undermines the market and should be banned.

    In Denmark and many other countries it is my impression that the real reason antipirates want to stop sites like The Pirate Bay is that they really want to stop the competition from artists offering their works for free. This is also undermining the ”commercial” market with legal free-market competition.

    But if artists want to give their works away for free, and want to earn their money in other ways than saying ”if you do not pay, you cannot have it” (or don’t want to come forward to protect their rights), it is IMHO perfectly legit competition.

    The collection societies should represent the rights of their own members. If they go above that like we see here, it should be recognized as the anti-competitive behaviour it is.

    Kommentar av Ole Husgaard — 23 november 2009 @ 1:15

  7. Collecting societies still have an important role in the future copyright landscape, to charge for any commercial usage of works within a limited time period.

    And there is, of course, a conflict of interest. Yes, the purpose of the collecting society is to pay renumeration. However, the administration costs money to. The last annual report from the Swedish performing rights society (STIM) shows an administrative cost of SEK 174,629,000 not including taxes.

    If the collecting societies were given statutory right to collect fees for orphan works, those fees would certainly go to the members of the collection society as the income would grow, but not the cost.

    And it is in no way certain that free use of orphan works would be damaging, as the members of the collecting societies would be the most suited to make new works based on orphan works. I mean, this is the elite of creativity, isn’t it?

    Kommentar av Johan Tjäder — 23 november 2009 @ 16:17

  8. ”Not to mention that making such a distinction would be apt to undermine the market by encouraging users to use only orphan or purportedly orphan works in order to avoid paying remuneration.

    If it were really true that making old orphan works free to use would undermine the market, then isn’t that tantamount to saying that the market is not capable of producing new works that people would find better than old orphan works? Seems like a huge failure of modern artists if that were the case ;)

    But I do not share the pessismism of Desbrosses. I rather think Johan Tjäder is on to it when he points to the positive effects for new artists to be able to use and integrate old works into the works of their own. Just have a look at the movie Sita sings the blues and the way it uses old jazz music (the music is still in copyright in this case, but of course music from the 1920s would have been in the public domain if we only had a more sensible copyright term).

    Kommentar av Tor — 23 november 2009 @ 17:13

  9. Thanks for sharing this important information.

    Kommentar av Dennis Homo Sapiens Nilsson — 24 november 2009 @ 2:14

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