Proposition 52K2051

Projet de loi modifiant, en ce qui concerne le statut et le contrôle des sociétés de gestion des droits, la loi du 30 juin 1994 relative au droit d'auteur et aux droits voisins.

General information ¶

Submitted by

CD&V the Van Rompuy government

Submission date

June 16, 2009

Official page

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Status

Adopted

Requirement

Simple

Subjects

copyright reprography

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP Open Vld N-VA LDD MR FN VB

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Discussion ¶

July 15, 2009 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mr. Minister, Colleagues, the Committee on Business has discussed the very important bill on the control and transparency of management companies in the field of copyright and related rights, during the two committee meetings of 20 June 2009 and 7 July 2009.

Ms. Lalieux proposed to organise hearings on the draft, but her proposal was not adopted by the committee, given that this matter had already been the subject of many discussions and consultations with the organisations concerned and with the sector itself.

The Minister explained the strengths of the draft. There are five power lines.

The first is to clarify a number of articles of the copyright law, with the main purpose of providing the rightholders, users and the public with the necessary guarantees that management companies possess the necessary qualities. Second, the establishment of explicit rules on procedures within management companies. Third, the assignment of specific tasks to the commissioners of management companies, fourth, the precise determination of the statute, tasks and financing of the control service for management companies and, finally, the measures and sanctions by which the control service can act if the management companies fail to perform their tasks.

For the implementation of the bill, a whole series of royal decrees are needed. The preparation of the respective royal decrees is the subject of prior consultation with the sector and the parties concerned through a consultation committee, which is provided for in the draft law. Furthermore, as I said before the draft law, consultations with the sector also took place.

During the general discussion, Mr George of the CDH group pointed out that legal action was more than necessary. He wondered whether the management companies did not show negligence in the performance of their assignments. According to him, the bill is a step in the right direction.

Ms. Lalieux of the PS group attended to the very important role of the management companies. They are dealing with significant amounts. The sector manages no less than 240 million euros. They also perform a task of general benefit.

Mrs Lalieux expressed her satisfaction with the prior consultation. She also requested the Minister to know the status of the file concerning the remuneration for copying for own use.

On behalf of the Flemish Interest, Mr. Logghe observed that the bill would bring more transparency. According to him, however, the sanctions set out in the draft law are not always as clearly specified. Therefore, he requested more information on the sanctions in question and on the appointment and qualification of the Special Commissioners, as provided for in the draft.

The Ecolo-Green! group declared at the moon of Mr. Henry that it welcomed the bill. Mr. Henry stood behind the objectives of the design. However, he also wondered whether the dispositive, ⁇ for smaller management companies, is not too logged. He would have liked to see a little more difference in treatment between large and small management companies.

Your reporter joined the previous speakers on behalf of the Open Vld group, who emphasized that the draft law is only a step in the right direction, necessarily but a starting point. I also pointed out the importance of looking to the future, where new challenges are also emerging for the management companies sector.

Certainly positive in the whole of this bill is the possibility to be able to withdraw certain rights and to do in own management, a provision that is provided in Article 16 of the bill.

Colleague Jadin of the MR group also considered that the draft is moving in the right direction in terms of transparency and clarification. However, she also pointed out the problem of reimbursement for copies for own use, which should be resolved as soon as possible.

Ms. Van der Auwera of the CD&V group noted that the draft is a first step and that therefore other laws and royal decrees will also be needed. She also noted that many questions remain open, which are being answered, including in connection with copying for personal use.

Finally, a number of questions were raised by colleague Laeremans in connection with the organic fund for the financing of the audit of the management companies.

In his response, the Minister specified that the sector will be given the necessary time to put things in order, so that one can respond to the requirements set by this bill. The legal basis for the remuneration of copies for personal use is laid by Article 4 of the present draft law and will enter into force quickly. Therefore, other royal decrees are also needed, as mentioned, they will be discussed in the consultation committee.

The Minister also noted that the consultation with the industry has created a climate of confidence in the area of copyright. Nevertheless, the necessary instruments are provided to force the management companies to comply with the law. Therefore, the committee also adopted an amendment that provides for the review of the current draft law after a period of four years after its entry into force.

The Minister also stated with regard to the Special Commissioners that they are appointed by the Minister himself, have a specific status and must possess a number of legally prescribed qualifications.

The legislative framework is next to the Minister not to fool. It is only a matter of having a well-functioning framework. With this bill, this is given in his opinion and also in our opinion, at least in the opinion of the majority of the committee.

The draft law was unanimously approved by the committee, taking into account two amendments, more specifically concerning Article 13, concerning the period within which the payments must be made, and Article 46, concerning the entry into force of the draft law. For more specific points of discussion, I would like to refer to the written report.

First of all, I would like to thank the Rapporteur for his brief but comprehensive report. I do not do it every time, but I congratulate you that you have succeeded in submitting a draft copyright law. This was indispensable for the sector since we know that collective management companies play a key role in the issue of copyright as an accompanying body of an artist’s career and also as a representative body of the interests of authors.

If the copyright, management companies have the vocation to protect, defend, negotiate, perceive, distribute, they do also other professions as I wanted to remind in committee, Mr. Minister. Author companies do much more than what is planned in this project. They conduct cultural activities, offer scholarships, offer legal advice. It is important to repeat that we do not restrict the role of these copyright companies. They are true partners at the service of culture and at the service of authors and users.

However, it was necessary to establish transparency with regard to the money masses brewed by these copyright companies, since even if they are private companies, they fulfill a mission of general interest; this is what it was necessary to recall and that is what you have succeeded in passing. There was consensus, dialogue, consultation and opinions collected by the Intellectual Property Council. Everyone agrees at the negotiating table – finally! The application may be difficult because it is technical but it is the price of good management and transparency.

We are pleased to highlight that we have submitted an amendment aimed at an evaluation of the law after four years. It is important to check whether it works well and whether all parties are satisfied: companies, authors and users. We are moving towards simplification, better information, more transparency, which is excellent.

I would like to say a word about the consultation committee that was created. This is a good thing. It is a place of dialogue. I regret that it is used exclusively for Chapter VII of the law. The evaluation should be an opportunity to extend its mission to find agreements between different copyright actors.

I recalled in a committee that, since the transposition of the European directive of 1993, the law provides that cable distributors must pay copyright. They also pay for everyone who has the cable today, i.e. almost all citizens. As you know, these copyrights are only paid if there is a written agreement. However, the majority of cable distributors do not sign it. As a result, unlike consumers, cable distributors do not pay for copyright except for the basic bouquet. Mr. Minister, I have said this in the commission, to your administration and to you, I do not doubt that this will be quite difficult but, from September, you will have to engage in dialogue with cable distributors so that they pay copyright because it is a fair remuneration.

Mr. Minister, I will conclude by speaking of the private copy which, in our opinion, is closely linked to this case. There too, none of your predecessors came to an extension of the payment of this private copy to adhere to the technological evolution (MP3, iPhone, internet, USB key, etc.). You clearly told us that a royal decree had already passed in the Council of Ministers. Furthermore, even though we have not introduced an amendment, you have promised us – you have said it and repeated it and you will repeat it again here – that, the month following the publication of the law in the Monitor, this royal decree will enable the right to private copying to apply to new technologies. We believe that private copying is fundamental, both for copyright and for the user. We know that companies will have difficulties closing at the end of the year because the lack of earnings currently amounts to more than six million euros.

Mr. Minister, I wanted to tell you and the members of your administration, if they are present, that you have done a remarkable job of dialogue and listening. I hope this work will benefit everyone, management companies, users and artists.

Mr. Speaker, Mr. Minister, without our knowledge, copyright occurs daily in our lives: from the moment our wake-up radio turns on until we turn off the television late in the evening. At other times we are faced with it in an unpleasant way, for example when we organize a party or a fuif. In all these cases, we pay directly or indirectly for these copyrights.

It is good that we pay for these copyrights when using because this gives the author and/or performer a remuneration and a form of income for his creative performance so that they are encouraged to publish new work. Therefore, it is also important that the funds we pay are processed in a correct and transparent manner by the management companies. This is important not only for those who have to pay for it so that they are sure that the money is being processed correctly, but especially for the rightholders so that they get the necessary income in a timely and correct manner. It is important, among other things, that they regularly get limited income and not all at once because this latter is much less interesting for the rightholders taxally.

This draft, Mr. Minister, which has been drafted in consultation with all stakeholders, largely meets this. Not only will management companies need to provide greater transparency in their accounting, but also in determining the rates. Furthermore, the operation will need to be controlled by external agents. On the other hand, management companies will be able to obtain the necessary information to correctly apply their rates without having to color outside the lines of the law.

I hope that the creative brains, who ultimately are the shareholders of the companies, also realize that there must be an interaction between the social benefit in using their work and the purchase of their work or attending their piece. We rely on them to instruct the management companies to no longer behave as asshores over schools, self-employed and kindergartens in order to pick up this shell, but to opt for correct pricing and collection. We are confident that through the transparency that this design creates, it should be possible for the different management companies to work together to come to an e-locet where users can end up. Furthermore, we expect that SABAM, as the largest and most important management company, will have understood the message that more transparency and openness over their repertoire, and correct rates and inputs are necessary.

In any case, we look forward to the royal decrees that should regulate the details of this draft. One of those royal orders is very important for both consumers and rightholders, namely that of the private copy. As the use of various media is and continues to be in full development, the needs of consumers are also changing. This requires an adjustment of the current rates and an extension to newer media.

We hope that the rates used will be reasonable and fair and in accordance with the usage. In fact, many of the new media are both used by the protected consumer, for which copyright must be paid, but the vast majority is used for photos and videos that are either homemade or free for use. I really hope, Mr. Minister, that you will not be guided by the storage capacity, but above all by its effective use. So it is up to us to look forward to the royal decisions you may take in the coming months. Furthermore, we hope that management companies know clearly what they are doing, just like consumers.

We have been waiting for many years for this text, which will be submitted to our vote tomorrow. This project perfectly fulfils our expectations in terms of clear and transparent management of rights management companies. It is therefore a first step — others will follow — that has just been accomplished in the large reform project to modernise the legislation on copyright and related rights.

Very balanced in terms of individual rights and duties, this project essentially aims to expressly provide for legal obligations in the head of rights management companies in order to increase the transparency of their activities, in particular of their accounting, taking into account, on the one hand, the mission of general interest that they assume and, on the other hand, their role as obliged partner for right holders and exploiters.

This project aims to strengthen the supervisory tasks of the commissioners of rights management companies, so as to ensure that they have, on the one hand, a management structure, administrative and accounting organisation and internal control adapted to the activities they carry out, and, on the other hand, that the general assembly and the control body are, each year, informed of important aspects of the operation of rights management companies.

It also aims to make available to the supervisory body the instruments enabling it to exercise effective control of the legality of the operations of the rights management companies. These instruments include the express obligation of management companies to systematically communicate a series of financial and accounting documents and information, as well as a more precise definition of the control body’s right to obtain from management companies a copy of the documents and information they hold.

This reform of copyright and related rights has always held the MR group at heart. Some will ⁇ remember the long and boring discussions that our colleague, Senator Monfils, had with Minister Verwilghen, at the time in charge of the matter.

Last year, Mr. Minister, my colleagues Olivier Hamal, David Clarinval and myself regularly asked you about the problem of the remuneration for private copying. We are now pleased, if not relieved, that Article 4 of the bill provides for the entry into force, one month after the publication in the Moniteur belge, of the royal decree fixing the remuneration for private copying.

This is a problem that is not new but, in the absence of a royal decree, the sector loses at least 200,000 euros each month. The reference level of collection was previously EUR 20 million per year. The sector will have a lot to do to close the year 2009 with 14 million euros of collection. It must be realized that six months of delay represents a lack to earn for authors, artists, producers of 6 million euros, or 500,000 euros per month.

Article 55 of the Act on Copyright and Related Rights of 30 June 1994 provides that authors, performing artists and producers of phonograms and audiovisual works are entitled to compensation for the reproduction for personal use of their works and services, including in the cases provided for in Article 22, § 1, 5. Article 46, paragraph 1, of the same law. This means, therefore, that an indemnity must be paid in respect of the exception provided for by the law for private copying.

This compensation has, however, since the royal decree of 25 April 2004, remained unchanged, as new devices - MP3 players, USB keys - appeared on the market. This technological development has not been taken into account. Devices with a non-removable medium today constitute the majority of the devices and media used for private reproduction.

As this bill ensures a fair balance between the rights of users, those of authors and rightholders, but also those of management companies, the MR group will vote in favour of this law.

Mrs. Speaker, dear colleagues, it is not often that a bill is approved unanimously, ⁇ not when it comes to such a complex matter as copyright. In fact, copyright does not only give rise to a legal debate, but also to a sociopolitical debate.

The modernization of the control of the management companies is an essential element in this social-political discourse. and green! I am pleased – you hear it right – that the government is working hard on this. In recent years, copyrights have been heavily affected. It is becoming increasingly less understood why copyright exists, why music or literature is not simply free to obtain for free. Often in this debate a lot of things are thrown on a lot of things.

Unfortunately, the management companies that oversee copyright are not seldom self-assured of a breakdown of the support level for copyright, by taking measures that no one really understands or can put in place, such as the additional control of kindergartens, the increase of the fees that schools must pay, the hunt on youth homes, and so on.

Therefore, it is good that there is better control, not only on the operation, but also on the accounting. Transparency and a clear tariff policy strengthen the social support. People can then understand why they have to pay a certain amount and they can also follow up on who it is going to be. The management companies themselves also have very clear advantages from the proposed changes. Not only the consumer, but also the authors themselves get a better view of the operation of those companies. It will now need to become clearer how the money is distributed among the rightholders.

Colleagues, it should be clear that copyright is a very complex dossier. It is therefore good that the government has engaged in thorough consultations with the sector. Fortunately, the draft legislation that is presented now is also supported by this sector. Some are more satisfied, others less, but it is good that the government has tried not to simply impose and push its own vision. The paragraphs on copyright that we found earlier in the program laws tended to do so. I therefore hope that this cooperation will continue, Mr. Minister, in order to reach a balanced agreement also in the further modernization, as in the case of the home copy.

In the same context, I thank the committee and express my appreciation for the approval of the amendment we have submitted. Per ⁇ the government may also consider working more closely with the opposition and the sector itself in other cases. However, let us not forget, Mr. Minister, that the control mechanisms you now impose are rather on the hard side.

As mentioned, we are very pleased that there will be better control, but the whole may be a bit heavy, especially for the smaller management companies.

Therefore, I would like to conclude with a clear call for a thorough review of the law, as it is presented now and will be adopted once it comes into force.

Dear colleagues, you can see that the ladies played a very important part in this debate. This gives me ⁇ much pleasure.

Colleagues, it is indeed a file that has been waiting for more than ten years. There have been bills in 2001, 2003 and 2006 and they have always tried to land in this file. However, this has never succeeded. The reason why it will succeed this time I think – it is worth waiting to see what the vote brings tomorrow – has to do with the fact that we first and foremost, independent of majority and opposition, have approached this dossier in a business way. This has ensured, as Ms. Almaci has just said, that we as a government have also left room for parliamentary debate and thus allowed amendments to be submitted and approved, even if they came from the opposition.

Several colleagues have already pointed out the contribution made by the sector. We have had many meetings in the Council on Intellectual Property, more than ten, where this draft was discussed and considered. That led us to land this time.

Colleagues, it was necessary to find a solution in the file of the audit, transparency and the statute of the management companies. First and foremost, there must be a fundamental balance between what the management companies do and the right of the public, both users and rightholders, to transparency. The lack of transparency of tariff provisions, which has been shown too often through the actuality, has caused several colleagues to intervene on this subject in committee meetings and plenary meetings. I hope that with this bill we can fix something.

The issue of private copying has been raised by several colleagues. In fact, we had to find a balance.

A royal decree has already been taken on 3 April 2009 by the Council of Ministers; it will be published and will come into force, as I promised, no later than one month after the publication of this law. Article 4 establishes the legal basis for this decision. A solution has been found with the industry and management companies in order to expand the base on which copyright will have to weigh. Indeed, we must take into account the interest of authors and artists that are necessary for the development of the culture of our country.

Finally, I would like to say that the work on this is of course not finished. We need to make a number of important implementation decisions.

Ms. Almaci, in the committee Mr. Henry asked to take into account the size of the different management companies within the Consultation Committee when we formulate commitments. I have well understood that message and we will do so.

There was a question from Ms. Lalieux and others related to cable distributors. This issue is very difficult and has been delayed for more than ten years. There too, I asked the Council and my administration to try to find a solution even if it involves a dispute between two private parties.

In this regard, I would like to thank Mr. Debrulle and his team in our administration. If all officials could function like this, it would be a dream for ministers and for Parliament.

There is, of course, the file of the unified declaration referred to in the government agreement and in which we will also try to land in this legislature.

Finally, I would like to thank the Parliament, the Chairman of the committee and the members of the committee for the good cooperation on the matter. I hope that in other dossiers – there will be a few more draft laws coming in autumn – the same license and cooperation can be put into practice in order to make progress in those important dossiers.

Mrs. Speaker, dear colleagues, dear Minister, it is neither intended nor usual, but I was registered both as a reporter and as a speaker. I would like to make use of that right. I am afraid that I may return here and there to what I have already said, but it will also mean a reinforcement of what some other colleagues have already said here, and what the minister also cites. Of course, cooperation in this area is very important.

As cited by other speakers, the fair remuneration, SABAM and co for whole people are not unknown. Today, it is not about a very dry legal mass text that we approve, but about a whole set of aspects that a lot of people, a lot of associations and a lot of self-employed people are dealing with. On summer streets and squares, as well as in homes and ⁇ , copyright has its tentacles. In short, Mrs. Almaci, it is not a grass-dry mass. You also cited that.

In other words, the proposed bill touches a point on which everyone who comes out of his or her stomach has an opinion, namely essential: how do we stimulate creativity, how do we ensure that creative people and artists are remunerated for their work? In Belgium, the answer lies in the copyright law, and the legislative basis for it dates from 1994. Then the principle of collective management of creative rights through the management companies was agreed. We have already extended this too.

The organisations, the management companies, should, among other things, defend the rights of artists and ensure that creative people receive the income from their work as quickly and as well as possible. It is based on the idea that the artists cannot collect the money they are entitled to, so the management companies must do so for them.

In itself, this is a very noble goal, especially because in principle the artists are also represented in the companies and because they are involved in all decision-making in this regard.

The management companies would therefore like to point out their own broad tasks. In other words, they should be the trade unions of the cultural sector, organizations of supreme democracy and modernity, constantly looking for improvements, for ways to use new technologies that lead to more openness and even more exchange of ideas and talents, so that truly all artists can bring a common vibe across this country.

Unfortunately, it has already been said here by other colleagues, since the emergence of the law in 1994, there and there and sometimes also in several places at the same time problems and questions about the functioning of SABAM and co. Profit, arrogance, mismanagement and all sorts of dark practices were accused of them. The allegations came from so many different angles that they could no longer simply be postponed at the user’s unwillingness.

I give a few examples. Artists who have been waiting for certain payments from a company for 15 years. A Thai restaurant that gets a bill in the bus because it plays centuries-old traditional music. People who don’t even play music in their business and yet get an invoice and under pressure of threats still pay. Private companies that accept an air of a government agency and demonstrate a customer-friendliness that only fits in an old episode of The Colleagues or a French-speaking counterpart. Total closure about which working company it manages and for whom it intends. A database from SABAM that, when it finally appears on the internet, mentions so many exceptions that it is nothing more than a trick to stain consumers. DJ licenses, artists who themselves set up internal printing groups to have more impact on the companies.

Many examples show that the current bill was more than necessary. That it has been achieved on the basis of extensive cooperation and extensive consultation can therefore be called a victory. At the same time, however, it is a defeat. I stay silent at both.

The victory, transparency and control that will be introduced later with the bill is a victory over inertia. The Minister has already said it. There have been many years and meetings ahead. There were many conversations and consultation bodies, where one often stood against the wall, where one for years did not go further than to take note of each other's opposing views.

In the hope that this bill will move in a different direction, Open Vld supports this heartily. However, this is a starting point and not an end point.

At the same time, this bill is a defeat for the sector itself. It is a defeat for all who are genuinely concerned about fair remuneration for authors, because in the meantime, it has already been said here, the social legitimacy of the general public for the whole idea of creative rights has been further compromised.

If the management companies continued the way they were doing, they would fight a struggle that cannot be won, a struggle against society that evolves much faster than they can imagine. Even after the draft law, after the approval and entry into force of the various KBs, there remain many pain points, such as the tariff rules that need to be determined and the rapid technological and social developments in the entertainment sector that pose a format challenge for the entire sector.

Therefore, it will come up to us all together to pull out our neck and tackle this future. Cooperation will be needed. The management companies must close the distance between them and the public. Respecting the new legislation alone will not be enough. Clearness and efficiency are essential to restore the social support. Humility should also be shown here. If a user asks “why,” a mere “therefore” will no longer be enough.

The legislator – we all, hopefully across party boundaries – will have to create a legal framework to stimulate innovation. We must, among other things, help open the market to encourage systems such as creative commons and other alternatives that enable partial and individual management by the artist. We must also support the various initiatives in Europe, as the Luxembourg Commissioner announced yesterday. The entertainment industry will need to develop anti-piracy systems and meet consumer demand for flexibility. Finally, the consumer will have to undergo a mental change. There is no unrestricted right to information, there is no human right to download and for certain things you have to pay.

Finally, I would like to ask everyone to listen to that brilliant song of Bart Peeters a little more often, "It's not what it is, it's what you do with it." In short, it is not about collecting up to the euro cent and through the most surreal rates, it is about having an honest and behaved appreciation for creativity. In the future, let us put our neck out together.