05. 08. 2011

ANEM OPINION ON PROPOSAL OF UNIQUE TARIFF OF OFPS AND PI

Much similar to the case of SOKOJ's tariff, the procedure for determining a unique tariff of collective organizations OFPS (Organization of phonogram producers of Serbia) and PI (Organization for collective administration of performing rights) has continued before the Commission for Copyright and Related Rights, after last year's failed negotiations with ANEM. The procedure is currently in the phase of obtaining opinion of the Commission on the Proposal of a unique tariff, supplied by the managing boards of these collective organizations based on written agreement. In that procedure, ANEM, as a representative association of broadcasters - users of their protected objects, was recently asked to provide its opinion on the Proposal in writing, following which, the Commission would give its opinion. Depending on this, the Proposal of the unique tariff of OFPS and Pi for broadcasters would either be enforced, or, if not the case, the negotiations with ANEM would be repeated or else, a new proposal of the tariff would be provided to the Commission for opinion.

ANEM submitted its written opinion to the Commission on August 5, 2011, in which it pointed out that the Proposal of the unique tariff of fees for broadcasters by OFPS and PI included the rights not falling under the competence of these organizations, as well as that the fees had not been established in line with the rules for determining the tariff as prescribed by the Law.

The main objections of ANEM to the proposal of the unique tariff of OFPS and PI are the following:

• the amount of fee cannot be determined proportionally to the importance that the use of object of protection from the repertoire of the organization has for the income of the user, since, according to this Proposal, the fee shall be determined on the basis of use of music repertoire, whereas the license of OFPS and PI for collective exercise of rights does not cover the entire "music repertoire", rather its part referring to performing recorded on released sound carriers and phonograms
• calculating base for the fee has not been clearly defined in the Proposal, or aligned with the applicable regulation prescribing the classification of business activity, thus opening a space for the tariff to also include the rights for which OFPS and PI do not have the license for collective exercise
• the range of fees has been increased comparing to range existing within the valid tariff frame, as well as to the initial proposal of OFPS and PI, with which the negotiations are led; there is, however, no justified reason for such increase in fee range, particularly taking into consideration the tariffs of collective organizations of the states which have the similar value of gross domestic product to the GDP of the Republic of Serbia. With that, the percentage has been associated with the use of music repertoire in the program, which is unacceptable, as it ought to be linked to the commercially released phonograms
• given that not a single reliable mechanism for establishing the use of organizations' repertoire in the programs has been found yet, and that this Proposal of tariff implies the linkage of fee to the percentage of use, ANEM proposes the thematic assortment of TV channels to be used as a corrective in determining the fee, whereas for the radio, the use of music repertoire to be measured during radio stations' prime time
• the determined minimal fee is inappropriately high, while there is no scaling ratio for its determining for different regions in Serbia in line with the different level of their development, which should have been taken into consideration while forming this fee

ANEM opinion on the proposal of a unique tariff of OFPS and PI is here (available only in Serbian)