Tuesday July 10, 16:15 - 17:45
Session 1: Copyright in Music Libraries: is a balanced agreement still possible...?
The point of view of the international organisations. Presented by the Copyright Committee.
Chair: Anne Le Lay (Conservatoire National de Région, Boulogne-Billancourt).
Wednesday July 11, 09:15 - 10:45
Round table with Yves Alix (Bibliothèque du cinéma, Paris), François Rossé (composer), Emmanuel Pierrat (avocat au Barreau de Paris), Marie-Bernadette Charrier (performer), Jenny Vacher-Desverney (CIEM/ICMP, International Confederation of Music Publishers), Frédéric Goldsmith (Syndicat National de l'Edition Phonographique).
Two sessions were organised under this rather provocative title. During the first, three participants outlined the positions of the three international organisations that they represented:
Carolle Creolla explained the role of the Organisation Mondiale de la Propriété Intellectuelle (OMPI-WIPO) and described the different treaties since the Berne Convention in 1886 up to the two most recent, those of the Geneva conference in December 1996: one deals with authors' rights, the other with the rights of performers and recording. She explained that the ratification of thirty countries was necessary before these treaties could come into force, which had not yet happened. Of particular relevance here was the fact that the EC countries had not yet ratified them (not having started the adoption process until 1997), though they were due to do so before long. The US, however, acted quickly and adopted these treaties in 1998.
A paper by Graham Cornish then presented the position of IFLA (International Federation of Library Associations and Institutions) from the point of view of general library policy, rather than from a particularly musical perspective. His paper effectively set out the provisions that a librarian would hope for as regards copyright (http://www.cfifla.asso.fr/acceuilifla/prioriesifla.htm).
Claudine Belayche, representative of the ABF (Association des Bibliothécaires Français) within EBLIDA (European Bureau of Library, Information and Document Associations) described the activities of French and European library associations. The copyright directive (2001/29/CE of 22 May 2001 had to be incorporated into national law within the briefest time-spans, by 22 December 2002 at the latest. Each government could at its discretion include all or merely some of the possible exceptions and limitations exhaustively cited in Article 5, subject to the absolute forbidding of copying digital documents and to the fact that no exception would be possible for copying of sheet music.
The round table discussion which took place on the morning of the next day brought together different protagonists in the musical chain, beginning with the composer (François Rossé, from whom the French section of IAML had commissioned a work, 'Cris de cerise', given its first performance the day before during the evening's celebrations for the 50th anniversary of the Association). The composer seeks publication, and Jenny Vacher-Desvernais spoke on behalf of CIEM/ICMP (Confédération Internationale des Editeurs de Musique). At the last moment, the performer booked became indisposed, and Anne Le Lay, as a former performer herself, stood in to speak for interpreters of music. These protagonists are then recorded: Frédéric Goldsmith represented the SNEP(Sydicat National de l'Edition Phonographique). Published music material is made available to readers in libraries: Yves Alix, legal columnist in the journal 'Ecouter-Voir' then spoke for librarians. Finally, Emmanuel Pierrat, barrister from Paris specialising in broadcasting and publishing rights, legal columnist for the journal 'Livre-Hebdo' well known to French librarians, and author himself of many works (including a contribution to Yves Alix's compilation entitled 'Author's rights and libraries') began the debate.
It was very appropriate that Emmanuel Pierrat should open the round table discussion since his status as lawyer allowed him to defend in turn each representative of the categories already described - to which one could also add infringers of copyright and successors in title to copyright interests. He began by giving a brief summary of the development of copyright over 200 years. In general terms, since music is an integral part of this but also equally involves what have become known as neighbouring rights, this has caused complications from the start because the two rights inevitably conflict. But French, European and American legislators have handled these contradictions well enough, as well as the new technological developments and wider cultural roles arising from the fact that a library today is no longer only a place of storage and conservation but a place for cultural diffusion which should nonetheless be subject to the various authors' and literary and artistic rights. These acts of cultural diffusion (lending, reading, performance, reproduction, making available online) are today subject to the necessary permission of the rightholders.
Is the new European directive capable of putting these substantial modifications into practice? Emmanuel Pierrat replied that he found the directive meaningless: it allows each member state to confirm or apply the copyright legislation that it has already implemented in respect of its own rights, exceptions and cultural considerations.
This interpretation of the directive was considered very 'romanesque' by Frédéric Goldsmith and Jenny Vacher-Desvernais. Frédéric Goldsmith explained that the origins of the directive were a common belief amongst certain politicians at international level in OMPI and judicial figures who realised that the new technologies were creating the need for international copyright harmonisation in order to avoid an otherwise enormously fragmentary protection of the right. This belief resulted in the two 1996 treaties. One of the reasons why EC countries have not been able to ratify these treaties as quickly as the US is the fact that each European country wanted the directive to reflect its own national position. The impact of this directive is far-reaching, but only at the level of broad principles: each country has the right not to adopt the exceptions listed in Article 5, or to modify them, or simply to maintain the exceptions largely as they already stood. Jenny Vacher-Desvernais added that the European Commission was asked whether or not a directive was really necessary, since the OMPI treaties would bring together the legislation of at least the 30 countries necessary for ratification. The Commission considered that it had to take an initiative, otherwise EC member states would simply defend their own status quo by irrevocably rejecting the treaties and thereby defeat the goal of harmonisation. Hence the delay in implementation in comparison with the Americans. But speedy ratification now of the OMPI treaties will result in a European platform from which to communicate with the US in matters concerning the information society. A second important aspect of this directive has not been tackled: that is, the subject of protection technical measures to prevent the production of infringing copies. Here too it is essential to strive for as much harmonisation within the European market as is possible.
François Rossé expressed his point of view as a composer: he would prefer to be able to live by his own creative endeavours and would be quite receptive to a discussion about matters of succession. Emmanuel Pierrat recalled that the termination of copyright after the death of the author was an idea which has often been discussed. On the other hand there was an idea which found favour principally among German authors' and composers' societies called the paying public domain. He found the discourse of the composer sympathetic because it favoured the author's right but he found it very tedious to have to ask permission from others to use their music. It was true that the first problem was a financial and the second a more artistic matter.
Jenny Vacher-Desvernais completed this discussion by giving the publishers' viewpoint: it was to a considerable extent in line with that of the composer but it extended it because it was the publisher that assured the finance and investment and because a very important part of the revenue thus generated by copyright is reinvested in future creativity. For that reason the directive passed on duration of protection was fundamentally as much for the benefit of the composer, even if François Rossé denies it, as for the publisher, because there could be a very long recovery of investment in a musical creation. But until now publishers have generally been against the idea of a paying public domain. Jenny Vacher-Desvernais told equally of the important mission of publishers in terms of critical editions, reprints and the fundamental function of supporting the creations of composers.
Frédéric Goldsmith indicated that the duration of protection of copyright does not prevent the author from being able to earn a living while he is exercising his profession: many civil societies provide considerable aid to facilitate creation and one must not hesitate to go and ask them for financial support, to find some sponsors.
Speaking more particularly about libraries, Frédéric Goldsmith stressed the needs of the EC on copyright and on the impact that dissemination without remuneration could have. It was not for rightholders to take the place of the state or local bodies that in any case provide funding for education. None of this prevents often being able to find a solution through contractual agreements with rights' collecting societies, specifically those adapted to recordings' libraries, listening situations, etc. The law on lending is obviously a key subject even if it was not the one principally in question here. From the moment that the disc leaves the record library, one loses control over its circulation and one has no control over copying. Therefore it is necessary to offer remuneration for loan, and, by the same token, the right of loan should be negotiated. And the collecting societies are still the best placed fairly to carry out this type of negotiation. The Latin and the Scandinavian countries have different traditions of jurisdiction but it is really the contractual procedure that must be given priority.
The publishers have exactly the same position favouring the contractual route. Consequently Jenny Vacher-Desvernais regretted IFLA's declarations of principle, which seemed to conflict in certain ways with the law and did not seem to work in that direction. (Yves Alix, speaking as a librarian, as far as he was concerned considered them 'illegal, but interesting', which is rather different.) But, Yves Alix admitted that IFLA's list of recommendations is rather a declaration of principles, than a starting point for negotiation; it was what librarians, in a perfect world, would aspire to. Everyone has his or her priorities which everyone else should be aware of. The priorities of publishers are clear: there are cycles of finance which call for returns and safe-guarding, some primary and fundamental sources of revenue for both publishers and composers. Equally, it was mentioned that the exception to the author's exclusive copyright enshrined in the law was observed with prudence and circumspection because it allows only with difficulty flexibility of dialogue between the needs of all parties, and adaptation to technology, which is ever changing.
Negotiate? Who should, and with whom? Federica Riva explained the situation in Italy: a law at the moment prohibits libraries from lending scores. It appears that this law was passed following pressure from publishers. The solution adopted by the Milan Conservatory was to conclude agreements directly with the composers. But Yves Alix pointed out that, if Italian librarians do not have the right to lend, that is, without permission; there was at any moment the possibility of negotiation with publishers' representatives to settle fairly circumstances under which they could lend. One must enter the real world as well as that of library budgets; payment for the use of works should be increased. The essential condition is that this charge should be reasonable.
François Rossé raised again the problem of availability of printed music with that of hire: some publishers practise hire exclusively and he considered these scores lost. Anne Le Lay said that some composers go so far as to hesitate to get themselves published to be sure of getting their works studied and performed. Jenny Vacher Desvernais then told of the need for a pragmatic approach and for discussions at national level, something that Frédéric Goldsmith confirmed in conclusion, even if libraries wished for international guidelines on negotiation. The idea of having a sort of international blanket, that is, of international discussion, was perhaps a good idea in itself. It did not prevent local setups responding to specific national situations. Anne Le Lay concluded that if one wished to make swift progress it would be best to address matters in the first place at the national level, which would not, moreover, hinder the growth of international contacts.