30. 06. 2011

ANEM opinion on SOKOJ's proposal of the tariff

Under the new Law on Copyright and Related Rights, which entered into force on December 24, 2009, the tariffs of collective organizations for the protection of copyright and related rights shall be determined by negotiation between these organizations and the representative associations of the users of objects of their protection, whereas, if these negotiations do not result in a written agreement, the further negotiating procedure will depend on the Commission for Copyright and Related Rights. Namely, the Commission gives opinion on the proposed tariffs which shall, after the failed negotiations, be determined by collective organizations alone. This will determine whether such tariff will be enforced or the negotiations for its determining be repeated. Representative associations will also give their opinion on the proposed tariffs to the Commission.

As negotiations between ANEM, as the representative association of broadcasters - users of musical works, and SOKOJ were completed almost a year ago, without reaching agreement on tariffs, the process had entered into the phase in which the Commission submitted SOKOJ's proposal of the tariff to the representative association of users for opinion. Due to a delay in the formation of the Commission and slow pace of work of the Commission after its constitution in the end of last year, ANEM had received a request from Commission for Copyright and Related Rights at the beginning of May 2011, for giving an opinion on the proposed tariff of fees submitted by SOKOJ, with the time limit of one month to comment on this proposal.

Responding to the request of the Commission for Copyright and Related Rights, ANEM submitted its written opinion on the proposed tariff by SOKOJ on June 6, 2011. Later that month, on June 30, ANEM representative elaborated on the Association's arguments and opinion on the proposed SOKOJ's tariff at the meeting - consultations with the Commission for Copyright and Related Rights.

The main objections of ANEM regarding the proposal of the tariff are the following:

The proposal of tariff does not provide for clear mechanisms of ensuring compliance with a legal requirement for the level of fee to match up the significance of the use of protected objects from SOKOJ's repertoire for the users' income. ANEM believes that the definition of the basis for calculation of fees in the proposed tariff is inaccurate and inconsistent with the applicable regulations, which leaves the open space for the tariff to include the rights outside SOKOJ's competency. More so, the proposed tariff does not identify the grounds for the reduction of the basis for calculation of fees, as accepted in international practice. Also, this proposal of the tariff does not clearly establish the grounds for justifying the determined lowest amount of fees for the use of protected objects from its repertoire, set in the proposal as extremely high. Finally, the Law on Copyright and Related Rights provides that the process of determining the tariff should take into account the tariffs of collective organizations of countries whose gross domestic product is of the approximate value of the gross national product of Serbia. However, from SOKOJ's proposal arises the conclusion that it had not taken this into account while determining the tariff, since it foresees much higher and unfavorable tariffs than in these countries.

ANEM expects that the Commission will soon issue its opinion on the SOKOJ's proposal of the tariff, which will either assess that such proposal is not in accordance with the law, or, if not the case, instruct SOKOJ to launch new set of negotiations with the representative association of broadcasters or submit new proposal of tariff to the Commission for opinion.

Here you can read the full text of ANEM opinion:

ANEM opinion on the proposed tariff by SOKOJ - Organization of Serbian Music Authors (in Serbian)