Created in 1992, the Association of European Radios (AER) is a trade-association representing the interests of over 4500 Private and Commercial Radio broadcasters across Europe to the EU institutions.

AER has taken part to all recent open consultations run by the European Commission in the field of copyright and related rights. Needless to say, Broadcasters as a whole see an important part of their budget spent on copyright payments: Commercially funded Radio broadcasters in Europe pay over €325 million per year for music rights, that is to say a consequent portion of the “royalty cake”. AER therefore thanks the European Commission for the possibility to comment on such an essential topic for Commercially funded Radio broadcasters, through its “Call for comments” on the Recommendation of October 18th, 2005 (2005/737/EC) on collective cross-border management of copyright and related rights for legitimate online music services OJ L 276, 21/10/2005. The points made by AER in its previous official submissions related to copyrights remain valid. These points on copyright-related issues can be found in the following consultations:

• “AER Submission to the Communication from the Commission on the management of copyright and related rights in the Internal market” (published on June 21st, 2004)
  
• “AER Submission to the Commission staff working document study on a Community initiative on the cross-border collective management of copyright” (published on August 30th, 2005)
  
• AER Response to the Consultation on Content online in the Single Market (Published on October 13th, 2006; especially answers to questions 14 and 15)

In that sense, AER would like to briefly recall its main concerns with regard to collective management of copyright and related rights:

• One-stop-shop: Different treatment for online and offline music rights isn’t sustainable for Commercially funded Radio broadcasters: one of AER’s main objectives is to see established a one-stop-shop for all European music rights, whether analogue or digital, online or offline
  
• Transparency: There should be similar transparency and organisational levels required from Collecting Societies across the EU, in particular regarding the publication of tariffs (including split costs of both rights usage and administration by the Collecting Society), the licensing conditions, administrative requirements and the destination of the monies received
  
• Competition:  A user should be allowed to purchase whatever rights he requires for whatever purpose wherever he wishes to exercise them from any Collecting Society in the EU against clear, published tariffs
  
• Dispute resolution mechanisms should be enabled as appropriate in every Member State in order to prevent abuse of a dominant position by a Collecting Society

AER would nonetheless like to specify the following – in accordance with the questions asked by the European Commission:

(1) Are legally binding rules on the following issues preferable: (1) licensing; (2) transparency and governance; (3) assignment; and (4) withdrawal of online rights?

As explained in the introduction, AER would like binding rules on all these issues in all cases; i.e., not only for the online world.

(2) What are the tenders that are underway which envisage EU-wide licensing arrangements?

None in which Commercial Broadcasters are involved.

(3) What are the EU-wide licensing arrangements that have been set up?

None in which Commercial Broadcasters are involved.

(4) Which online customers music service providers benefit from EU-wide licences for their pan-European retail or other activities?

N/A

(5) What types of online services are most interested in obtaining EU-wide licenses?

Commercially funded Radio broadcasters would be interested in an EU-wide license if the latter comprises all music rights, whether analogue or digital, online or offline.

As for online broadcasting, most of the Commercially funded Radio Broadcasters in Europe are obliged to remain national: it is too burdensome to legally broadcast online outside domestic range; this indeed would mean contacting each European Collecting Society and apply for online music rights blanket licenses; this is certainly impossible for a single Commercially funded Radio station. Furthermore, it is economically unsustainable, as additional costs would be raised for the same content broadcast at the same time, only because transmitted in another State.

(6) What legislative or other types of obstacles have been encountered in setting up EU-wide licensing arrangements?

Rights repertoire: a one-stop-shop is not a real one-stop-shop if it doesn’t offer all rights needed (if the Collecting Society covers all 27 EU Member States but not all relevant repertoire, the Recommendations’ effects is not sufficient).

(7) Does the Recommendation correctly set out the rights of the various right-holders that are typically licensed for the provision of "online" services?

(8) For the purposes of the withdrawal of rights, should "online" rights be further defined by category according to use or form of exploitation?

AER opposes any division of online rights, and indeed any division of music rights whether analogue or digital, online or offline.

(9) Alternatively, should right-holders be able to retain some types of use or forms of exploitation without assigning them to a collective rights manager?

(10) How can the inclusion of equitable remuneration for record producers and performers be justified in contracts?

(11) Should it be mandatory to include niche repertoire in EU-wide licenses?

“Niche repertoire” should first be defined: this could correspond to a given type of music only listened to by a small group of persons, i.e. in a set place only. This is part of the music rights referred to in question (5) and (6): radio audience is regional or national, and so is part of the music listened to by this audience; it is then necessary to include “niche repertoire” as defined here in EU-wide licenses if Commercially funded Radio broadcasters are to broadcast online.

(12) Does the Recommendation bring about any changes in relation to transparency of rights management and increase the effectiveness of dispute resolution?

In relation to transparency and effectiveness of dispute resolution, the Recommendation doesn’t seem to bring about any changes.

(13) Does the Recommendation bring about sufficient safeguards for individual rights-holders with respect to (1) tariffs; (2) licensing conditions; (3) entrustment; and (4) withdrawal of online rights?

(14) Should the Recommendation further address right-holders' participation in setting deductions for purposes other than for the management services provided?

(15) Does the Recommendation provide sufficient safeguards for commercial users?

We do not see how it is designed to do so.

(16) Should applicable rules and principles in relation to dispute resolution be strengthened in the future?

Our views on these matters can be found in our submission to the Public Consultation on Content Online in the Single Market in October 2006 (see annex).  We have not got much fresh to say in June 2007.

The Recommendation alludes to dispute resolution mechanisms in clear but weak terms; paragraph 15 of the Recommendation stipulates: “Member States are invited to provide for effective dispute resolution mechanisms, in particular in relation to tariffs, licensing conditions, entrustment of online rights for management and withdrawal of online rights”. AER would like to see these various statements enforced in the Member States in order to prevent abuse of dominant position or restrictive business practices by Collecting Societies.

ENDS
30/06/2007

Contact details:

Vincent Sneed
AER Association Coordinator
76, av. d’Auderghem, B-1040 Brussels, Belgium
tel. 32 2 736 9131
fax. 32 2 732 8990
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