16. 07. 2012

ANEM Proposal for amending the Law on Copyright and Related Rights

Considering the results of implementation of the Law on Copyright and Related Rights from 2009, which has shown significant drawbacks in practice, especially when it comes to determining the tariffs of collective organization, ANEM submitted on July 16, 2012 its proposal for amending the Law on Copyright and Related Rights to the Government of the Republic of Serbia, the relevant Ministry of Education and Science and the Intellectual Property Office.

Namely, as the representative association of broadcasters - users of musical authors' works, ANEM entered, back in 2010, into several months long negotiations with organizations for copyright and related rights (Sokoj, OFPS and PI), in order to reach an agreement about their tariffs of fees. As the negotiations have not resulted in an agreement, in line with the law, managing boards of these organizations have independently determined their Tariff Proposals and submitted them to the Government's Commission for Copyright and Related Rights for the opinion. Currently, the OFPS and PI's Proposal of the unique tariff is still pending before the Commission. However, Sokoj Managing Board's Tariff Proposal, which is, in the opinion of ANEM, illegal and extremely unfavorable for the broadcasters, was confirmed by the Commission's opinion, and the Tariff came into force on December 31, 2011. By this Tariff, fees for broadcasters, and particularly minimum ones, have been multiplied (even 352.22% for television on average and even 546.03% for radio on average) and determined in a manner that is not in accordance with the law. The media industry cannot sustain such drastic increase of fees, which is why many broadcasters will be led to a situation to close their stations. The negotiations and their results, as well as the work of the competent Commission, have led to the conclusion that the provisions of the Law on Copyright and Related Rights have not met expectations of users, broadcasters before all, that the fees would be more realistic and favorable and that they would respect the interests of both parties - users and collective organizations.

For this reason, ANEM is proposing amendments to the Law that would result in the following:

• abolition of the Commission for Copyright and Related Rights and transferring of its responsibilities to the Intellectual Property Office;

• change of the rule for determining the Tariff under the Article 170 of the Law on Copyright and Related Rights, in a way that the appropriateness of the Tariff for the type and manner of using of a copyright work, or the subject of related rights, in relation to users in the broadcasting sector, be ensured by the market analysis of broadcasting and related markets (e.g. advertising market and the media content distribution market), relevant for the income realized by broadcasters through producing and broadcasting radio and television programs.

ANEM believes that these amendments are compulsory for the following reasons: Firstly, under the provisions of Articles 188 to 191 of the Law on Copyright and Related Rights, the Intellectual Property Office supervises the work of collective organizations for copyright and related rights. In this sense, establishment of a separate body, the Commission for Copyright and Related Rights, which is only in charge of one aspect of the supervision - namely supervision of whether the proposed organization's Tariff includes the rights for which that organization has a license and whether the fee is determined in accordance with the related rules prescribed by law - proved to be uneconomical, inappropriate and a poor solution. In addition, the Office has experts who, can significantly contribute with their professionalism, knowledge and experience to the proper application of the Law and to achieving the objectives, because of which the Commission was established in the first place. Secondly, the rules for determining the Tariff under Article 170 of the Law on Copyright and Related Rights generally insist that Tariff must be proportional to the type and manner of use of copyright works or the subject of related rights. They also provide that, while determining the Tariff, the tariffs of collective organizations in the states, whose gross domestic product is of the approximate value of the gross domestic product of the Republic of Serbia, should be taken into account. This proved to be insufficient to ensure appropriateness of the Tariff for the type of tariff and manner of use of copyright works or subject of related rights. Without an adequate analysis of the specifics of the market in which Serbian users operate, as well as the analysis of related markets relevant to the revenue that users realize by performing activities in which they use protected objects, the situation cannot be avoided in which the Tariff, instead of being appropriate for type and manner of use of copyright works or subject of related rights, is rather increased by 350% or 550%, when the market, in which users realize their revenue, drops by 16.5%.

In addition to the request for amending this Law, ANEM will take other necessary actions and use all legal means to protect the interests of its members and all other broadcasters, who have been brought to the verge of existence by high fees of collective organizations.

The entire text of the letter is available here (in Serbian).