Copyright & The Continent Update July 2012
An interview with Victoriano Colodron, Senior Director, Global Relations, Copyright Clearance Center
For podcast release Friday, July 13, 2012
KENNEALLY: In Washington, the political stalemate continues, and with the November 2012 elections approaching fast, hopes dim of opening up the legislative logjam. Meanwhile, in Europe, copyright law, at least, is seeing plenty of changes, with the prospects looming of a sweeping reform of collective rights management.
Welcome to Copyright Clearance Center’s podcast series, Beyond the Book. My name is Christopher Kenneally, and today we turn our attention to Europe for another edition of Copyright on the Continent, with my CCC colleague Victoriano Colodrón, who joins us on the line from his office in Madrid. Welcome back to Beyond the Book, Victoriano.
COLODRÓN: Thank you, Chris. It’s a pleasure to be with you here.
KENNEALLY: Well, we’re happy to have you join us, and a lot going on in Europe, a lot to catch up on since our last chat about what happens to Copyright on the Continent, and you watch it closely for us at Copyright Clearance Center. Let’s start with some real news, just come out July 11th, the European Commission announced a proposal for a directive on collective management of copyright. Now, anything the European Commission does is always pretty big and pretty sweeping. Tell us briefly, what’s the objective here?
COLODRÓN: Yes. The proposed directive, because this is just a proposal, this proposed directive has two main goals. One of them is to try and improve the way collecting societies or a collective management societies of copyright, the way they are managed. And so the directive intends to establish common governance, transparency and financial management standards. That is one of the goals.
KENNEALLY: Has there been some pressure that the Commission’s been under to address these issues? What’s the background on this, Victoriano?
COLODRÓN: Absolutely. There has been increasing concerns across Europe about the way some of these collecting societies have been working in the past, the way they have been handling collected royalties and distributing them back to rightholders. And there have been concerns about the alleged lack of transparency in the way they operate. So this move from the Commission definitely is a response to that situation.
KENNEALLY: And we are talking here about collecting societies across the creative spectrum, if you will, so we’re not just talking about those organizations that might license text, but also music organizations, and so forth.
COLODRÓN: That is right. The directive, with this first goal we were speaking about, it targets all collecting societies, not only those working in the text sector, but also those working in the music and audiovisual sectors. And I have to say that perhaps the concerns that the Commission has wanted to address with this proposed directive with regard to governance and transparency have more to do with the societies working in the music sector.
KENNEALLY: Right, that’s what I’ve read, and just recently read that, in fact, leading musicians have expressed those concerns, including members of the bands Pink Floyd and Radiohead. But tell us, what are the main provisions of the directive? What are the kinds of things it’s hoping to address?
COLODRÓN: Well, the directive that has been proposed now contains several provisions as far as governance and transparency for collective management organizations. So for instance, it establishes all sorts of obligations for these organizations, as far as their relations with rightholders, the relations with other collective management organizations with which they may have representation agreements, and the relations they have with content users.
For instance, they are going to have to publish an annual transparency report, and there are many other provisions along these lines, dealing with how the collecting societies are organized and work.
But the other objective of the directive is to promote the multi-territory licensing of music for online musicuse providers to be able to acquire the rights to grant – to provide the services across Europe. And that makes another important part of the directive, with provisions looking at making sure that collective licensing organizations, in this case specifically, working in the music field, are able to conduct this – or, grant these multi-territorial licenses.
KENNEALLY: Well, just because many of our listeners will be familiar only with the United States’ situation, so we have iTunes, and it doesn’t matter whether you’re in New Hampshire or New Mexico, you can – you know, order up a song, download it, and be on your way.
What’s the current situation for a music listener in Europe? What’s it like there right now?
COLODRÓN: Well, the situation is one where the collecting societsocietiesy is dealing with authors’ rights in music in each of the European countries. They are, in many cases, entitled to grant multi-territorial licenses, but many of them are not granting these kind of licenses.
So for instance, an online music provider who wants to provide their services across Europe, or in a number of European countries, they may go to have – they may go to each of these national collecting societies in each of the European countries to get the appropriate rights and permissions. And that makes the licensing a bit harder for them.
And another situation is one where these national collecting societies represent only rightholders in their countries. So that makes it difficult for the music providers, the online music providers, to get all the rights they need to provide pan-European services to the customers. And that is exactly what the Commission wants to see changed with this directive.
It’s going to be –
KENNEALLY: Right. I mean, I think the issue here is that they recognize that in 2012, copyright really doesn’t know boundaries, at least on the Internet.
COLODRÓN: That is right, and that is also why the directive includes a number of requirements for a collecting society to be able to grant these pan-European licenses. Obligations which have to do – many of them have to do with the technical capacity of the society to be able to grant these licenses, monitor the uses, pay back to the rightholders in a very accurate and timely manner, etc.
So the directive recognizes that these societies, these organizations, have to be really very powerful in terms of the technology they use, to be able to deal with the rightholders and to deal with the music providers, which are going to give them and provide them with usage details of thousands of songs. So it’s really a very challenging situation for some of these organizations in Europe.
KENNEALLY: Right, indeed. And one of the challenges is going to be moving from proposal to final directive. What are the steps that have to happen to turn this proposal into law?
COLODRÓN: Well, it’s quite a long process at the European level, because this – again, this is a proposal put forward by the European Commission, which is the executive body of the European Union. And the proposal will now have to be discussed and eventually approved by two other European bodies, the Parliament and the Council. And this may take time.
And don’t forget that when this directive, in its current form, or more likely, in some amended version, is approved by the Parliament and the Council, it will still have to be transposed into the legal systems of each of the member states of the European Union. So this long way, altogether, could take a few years.
KENNEALLY: All right. Well, we’ve got another such proposal that has moved forward. It was last year, the European Commission put forward a proposal for a directive on certain permitted uses of orphan works. And as I understand, the Commission, as well as the European Parliament and the European Council, have come to an agreement around the text. So tell us, what’s in the text for these uses of orphan works, and what next steps do we need to watch for there?
COLODRÓN: Yes. This is a very interesting piece of legislation, of course, which has to do with orphan works. And one of the hottest topics in the copyright sphere, right?
So, the content of this text, the main thing, I would say – one of the main things is that it says that the member states of the European Union have to introduce an exception, or limitation, for the digitization and the online dissemination of orphan works. Orphan works always – in the case of orphan works held by certain cultural institutions.
KENNEALLY: Right. And we should, for our audience, just give us a very basic definition of orphan works.
COLODRÓN: Orphan works are works in copyright whose rightholders cannot be identified or located. So it’s impossible to get a permission from them to use the works.
And so the context of this initiative from the European Union bodies is to make it possible for cultural institutions such as libraries, museums, etc., to digitize their collections. And in many cases, many works in those collections are orphan works. So it’s almost impossible to locate the rightholder, and to obtain a permission from them.
KENNEALLY: Right. And the concern that the libraries and museums and other cultural organizations have is that these works are important to the cultural patrimony, as they would say over there, and copyright law is making it impossible to share them with the public that really needs to know about their history. So this is an attempt to move that roadblock out of the way.
COLODRÓN: That is right. And one of the interesting things in the directive is that, first, a diligentce search, what is called a diligentce search, has to be conducted work by work before those works can be considered orphan, according to the directive. And then, so that museums, libraries, etc., can digitize them and make them available to the public without having to ask for permission to anybody. That is one important thing.
And the second thing is that once a work is deemed orphan, it will have this status all over Europe. So the directive includes a provision on what is called mutual recognition, meaning that when a work is deemed orphan in one of the European countries, it is orphan and can be used as orphan in the other European countries.
KENNEALLY: Well, that’s again moving towards that kind of pan-European prospect, and so what everyone can do in France is the same as one could do in Germany or Spain or anywhere else.
So this is all about the EU. What’s the potential impact on marketplaces outside the EU, and including the US?
COLODRÓN: Well, that is a great question, and I’m not sure I have an answer for that. But what I can say is that I’m pretty sure that’s, in the United States and in other regions of the world, other countries, many people – policymakers, rightholders, representatives from the users’ community, they are going to follow very closely these developments, and see whether it could apply in a similar way to their territories.
KENNEALLY: Right. I mean, I think it’s certainly going to put pressure on countries like the US, which certainly have a very large contribution to the Internet and culture and so forth, to look at their own situation and try to address it. But as we mentioned at the top, we can’t expect much in the way of copyright law reform until at least after the election coming up here in November.
Let’s move to France, to Paris, and review a recent move to come to agreement – so rare, indeed, with these kinds of things. Publishers and authors dropped a lawsuit that they had against Google for copyright infringement in book scanning, and in return, Google agreed to work with those same authors and publishers to create an online framework for the sale of e-books. So tell us about this opt-in agreement, and what’s covered, and is it really a breakthrough for the European e-book market, as some people are calling it?
COLODRÓN: I think it is. I think it is. It is a very recent development, only some weeks ago this was announced in France, and the publishing community in other European countries, they were waiting to see what was going to happen in France, the same way they were waiting to see whether the Google book settlement was going to be rejected or not in the United States before moving ahead in their conversations with Google.
So this is really a very important step, and I don’t know, really, the details of the deal, but I can say a couple of things, general things about it. One important thing is that it is an opt-in based agreement, meaning that publishers, French publishers, are now completely free to sign up with Google, to sign an agreement with Google to digitize and to make available their books online. Publishers will retain the rights, and publishers decide which books will be out there with Google, the conditions, and everything. So that is a very important difference to what happened in the United States, the situation that led to the rejected Google book settlement.
And then the second thing, I would say, is that this deal has been architected through the publishers’ association – that’s the Syndicat National de l’Édition, and the authors’ association in France, La Sociéte des Gens de Lettres. Both organizations represent a very important part of the publishers and authors community.
Google has committed, in the framework of this agreement, with the publishers’ and the authors’ association, Google has committed to support a couple of interesting projects. One of them, it’s a project that the publishers’ association has to promote reading among young people in France, and the other one is some kind of lab for innovative publishing projects.
And then, with the authors, Google has committed to support them financially and technically to develop a database where the authors’ association should be recording rightholders in literary works. So those are part of the – of this important agreement.
KENNEALLY: Well, you were saying that many others were waiting to see what was going to happen in France before they decided to move ahead with regard to Google and potential for copyright infringement and lawsuits. So what’s happened? It’s still early days. You mentioned this is only a month ago or so. Any movement yet in other European countries that might pass, or might come to similar agreements?
COLODRÓN: Not that I’m aware of, Chris.
KENNEALLY: But it’s certainly – it would – there would be a great potential there for that, and I think it may even be something that the United States will look at more closely, because the Google lawsuit continues in court, in Judge Denny Chin’s courtroom. It will be resuming in September. And I think that there will be increasing pressure for all those parties there to come to some kind of agreement. We might see a similar agreement in the US, but we’ll have to wait and see.
And finally, Victoriano Colodrón, we’re reviewing Copyright on the Continent, and I want to look at some legislation that was adopted in France in March, which allows for the scanning of out-of-print books that remain under copyright. And this is a new French law that involves the Bibliothèque Nationale, and allows the Bibliothèque, the library, the French National Library, to begin scanning such works and providing public access to them.
Can you tell us about what this is going to make possible, as well as where licensing comes into all of it?
COLODRÓN: Yes, well, this initiative, I think it’s going to make possible to bring back to life thousands and thousands of titles, works, books that are in copyright, but are out of commerce. This is the scope of the – of this legislation, out of commerce books, and mainly books from the 20th century.
So the legislation rests on two elements, two main elements. One of them is the creation of a database that is going to be managed by the French National Library, where the out-of-commerce status of books will be registered. That’s one piece of the legislation, of the law. And the other one is the fact that the permissions to use these books and to exploit these digital files with books, those permissions will be managed through a collective licensing organization. And this is an extremely important and interesting piece of the law, I think, because it recognizes the importance of having an intermediary managing all these rights and permissions.
KENNEALLY: Right. Well – and certainly, there’s some relation back to the topic at the very beginning of our chat with Victoriano Colodrón, which is the European Commission’s proposal for a directive on collective management. So clearly, collective management is looking towards the future. There is going to be some reform coming, but there’s life in it yet, if at least the French case serves as an example.
COLODRÓN: Absolutely. I think there is a lot of life in the concept, and if I may, of course, we, ourselvesf, CCC are demonstrating it every day with innovative services, also in Europe, through our European subsidiary, RightsDirect.
KENNEALLY: Absolutely. And it is interesting to watch and see how the approach that is prevailing in Europe, which tends towards the legislative side, towards the statutory side, how that works its way out, and contrasts with what goes on in the United States, where it’s primarily a voluntary system.
COLODRÓN: That’s right. That is right. That’s why it’s so interesting to follow very closely what RightsDirect is doing in Europe, because RightsDirect is bringing this purely voluntary, fully opt-in licensing system into Europe. And I think that is bringing fresh air to this landscape.
KENNEALLY: Absolutely. And it gives us a great chance to follow this more closely and understand what is, admittedly, a very complex proposition, by chatting with you, Victoriano Colodrón.
Victoriano Colodrón, in Madrid, our Copyright Clearance Center colleague there. Thank you so much for joining us today on Beyond the Book.
COLODRÓN: Thank you. It was a pleasure, Chris.
KENNEALLY: Beyond the Book is produced by Copyright Clearance Center, a global rights broker for the world’s most sought-after materials, including millions of books and e-books, journals, newspapers, magazines and blogs, as well as now images, movies and television shows. You can follow Beyond the Book on Twitter, like Beyond the Book on Facebook, and subscribe to the free podcast series on iTunes or at our website, Copyright.com/beyondthebook.
Our engineer is Jeremy Brieske of Burst Marketing. My name is Christopher Kenneally. For all of us at Copyright Clearance Center, thanks for listening to Beyond the Book.
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