The Digital Media Project

 

Source

Philip Merrill

Title

TRU #42 of equitable remuneration

No.

040909merrill07

 

Name:

Philip Merrill

Affiliation/additional information:

Active Contributor, Pasadena, California

Date submitted:

2004/09/09

 

#

Criteria

Description

1.

Name of TRU

Right of equitable remuneration

2.

Summary description of TRU

the right of equitable remuneration is generally invoked during a legislative taking of reproduction/distribution control away from a creator under a compulsory license such that the legislatively set compensation, normally managed by a collecting society, is termed "equitable remuneration" for the value of the work's use

3.

Use records of TRU

Equitable remuneration can take many forms and should generally be expected to supply funds for some administrative entity executing the form taken. Compulsory licenses might or might not produce revenues to be divided up, but when they do this produces or adds a service to an existing collecting society that manages the division of income across a multiplicity of deserving recipients. The existence of collecting societies can also prevent compulsory licenses from being imposed, since their licensing authority permits the desired public good.

The strong network of collecting societies first grew into being around TRU to restrict performance. At IC sec. 5.5.2, Goldstein says, "Performances, broadcasts, and similar communications of copyrighted works are intangible and evanescent and are consequently more difficult and costly to monitor and enforce than are tangible uses. This difficulty doubtless explains why collecting societies, with their blanket licenses aimed at overcoming the high transaction costs of negotiated performance licenses, made their first appearance in the context of the performance right." Also, at sec. 5.2.2.3, "From the beginning, the impetus to the formation of collecting societies has been the difficulty of enforcing copyright against such decentralized uses as nondramatic performances of musical compositions. As emerging technologies have introduced newer forms of decentralized use, new collecting societies have formed to enforce copyright against these uses." He continues that "the musical performing rights societies have remained the most numerous and probably the most powerful in their impact on the formation of copyright policy, domestically and internationally."

4.

Nature of TRU

At section 5.5.I.6 of International Copyright, Paul Goldstein describes equitable remuneration as occupying a middle ground between "exclusive rights and absolute exemptions" and says, "National arrangements for compulsory licensing divide into three groups: mechanical recording of musical woks, 'private' copying such as home audio- and videotaping and reprography, and translation and reproduction of protected works in developing countries." Also, TRU lending and TRU rental are often treated by equitable remuneration schemes; perhaps these do not strictly count as compulsory licenses.

Perhaps the primary legal example of this is the treatment of phonograms, for which Goldstein says at 5.5.I.6.A, "The structure of the mechanical license may vary from country to country." This relates to national treatment in TRU of reciprocal protection since this multitude of various treatments are what will be applied separately by each country. There is already pressure on collecting societies in Europe to replace this with unified treatment schemes (for digital music Internet licensing), allowing fully reciprocal digital music licenses so any European collecting society could provide collection as a service and Users could choose which provider to select.

Berne covers national treatments for recorded music under Article 13, and broadcasting or "any communication to the public by wire" under Article IIbis. More important regarding Berne is the three-step test in Article 9(2). This includes moral rights in that authors and performers should not have their names stripped off their creations.

The systems of equitable remuneration in different countries also have various treatments regarding to whom money is distributed. For example, some countries include foreign authors in disbursements and some do not (at IC sec. 3.2.3.I Goldstein makes a strong argument in favor of always distributing monies to foreign authors who deserve national treatment), similarly some countries distribute money collected to national good causes and some do not (same section, footnote 96). At 5.5.I.6, Goldstein says, "Institutional and technological innovations such as collecting societies and electronic contracting will sometimes obviate compulsory licenses." It is suggested that this is a service DMP can readily support because collecting societies could play a very beneficial role in administering electronic licenses governed by next-generation DRM.

At http://www.wipo.int/documents/en/meetings/2003/sccr/pdf/sccr_9_7.pdf p. 30, Sam Ricketson describing Berne Article 13(I) says, "No guidance as to the meaning of the expression 'equitable remuneration' is given. Although it is left to the parties to negotiate this amount between themselves in the first instance, the adoption of such a provision under national law inevitably weakens the bargaining position of the author. For this reason, the role of the competent authority is crucial, as it will have to make a notional judgment as to what amount would have been negotiated in the absence of a compulsory license. This will ultimately remain a matter for national legislation." [emphasis added]

Per Goldstein IC sec. 3.2.2.3, most collecting societies belong to one of four international organizations:

5.

Benefits of TRU

Primarily End-User because the purpose of equitable remuneration is usually in support of socially beneficial end-uses. Collecting societies benefit. Authors may benefit, provided money actually gets to them.

6.

Possible digital support

Because equitable remuneration schemes can encompass so many worthy social poliies, these could be powerful subsidies for worthy causes, e.g., providing advanced materials to "gifted and talented" kids in school, with royalties paid for in part by the collecting society's accumulated funds.

The possibility of calculating monies in near real-time could have interesting implications for DMBMs.

7. Requirements It should be noted that there is a tension between enabling this TRU and DMP's general position against levies on digital media technology.

8.

References