Should the Pirates get 10 Years, or just walk the Plank?

Some considerable time after the Gowers Review (pdf) recommended (recommendation 36) that the maximum term of imprisonment for online criminal infringement should be increased, the IPO has launched a consultation [pdf) on whether the term should be raised from the current 2 years to a maximum of 10 years. In an effort to stick to its policy of evidence-based decision making, the consultation document exhorts would-be respondents to say rather more than just Yes or No when replying. However the same document is very thin on justification, its argument being mainly the fact that the penalty for infringing copyright in physical objects or designs is 10 years and so it would be neater if the penalty for online piracy was the same.

Would-be respondents therefore need to go to the 98 page Report on the subject commissioned, and published in March 2015, by the IPO, for some more detail about the pros and cons of the proposal.

While there is no denying that online piracy remains a significant problem, one can't help feeling that this has more than a hint of political grand-standing. The former MP and IP advisor to the Prime Minister, Mike Weatherley put it like this:

"There is currently a disparity in sentencing between online and offline crime that needs to be harmonised. This sends out all the wrong messages. Until this is changed, online crime will be seen as less significant than traditional theft". (My added emphasis).

While deterrence is all about sending messages, one has to be clear about whether the target audience will in fact be impressed by such demonstrations of muscle flexing.

Given that Mr Weatherley's remarks were contained in a report entitled Follow the Money, it could be argued that the current judicial initiative of using section 97A to take down or block sites containing infringing material, is cheaper, quicker and more effective than relying on the rather more ponderous and over-stretched criminal justice system, especially as in many cases it will need to rely on extraditing individuals from other jurisdictions. One has only to look at the Kim Dotcom saga to see how long criminal cases of that sort can take to get to court. In contrast, Mr Justice Arnold can knock out an injunction in a morning's work. And of course criminal cases require a higher standard of proof compared to civil ones.

The Report provides some interesting analysis of the current situation with regard to past criminal cases in the UK:

"The available court data from 2006-13 makes it clear that over the last few years, all prosecutions and convictions under CDPA 1988 have been going down. Online offences constitute a small, and apparently decreasing, fraction of copyright prosecution activity as a whole. Separate evidence provided by the Crown Prosecution Service and Trading Standards showed that neither have brought any cases at all under the online provisions of CDPA 1988." (second paragraph, page 5).

While I don't have a problem with tidying up the law, and goodness knows the Copyright, Designs and Patents Act is in dire need of tidying up, just tinkering at the margins for political rather than good evidence-based reasons is not really constructive. Let us hope that the IPO make a better job of conducting this consultation that they did over the recently-quashed private copying for personal use secondary legislation. The consultation closes on 17 August 2015.

ALCS calls for members to support ECL initiative

If you are a member of the Authors Licensing and Collecting Society (the ALCS), as this blogger is, you should have received by now an e-bulletin which clicks through to an Extended Collective Licensing (ECL) Consultation. As the ALCS explains:

The regulations governing ECL require the members of the licensing body seeking the authorisation to consent to its application. ALCS is a member of CLA [the Copyright Licensing Agency, here] and we are therefore seeking the consent of ALCS members to the CLA application.

A fairly full and helpful page containing further information can be perused here. 

Oh, and if you are thinking of popping in to say hello to the folk at ALCS, the organisation is moving to a new address:

1st FloorBarnard's Inn86 Fetter LaneLondon EC4A 1EN

By sheer coincidence, the CLA is moving there too.

Box office receipts and the PRS tariff: consultation period extended

Another media release that slipped this blogger's attention when it arrived is a joint statement by PRS for Music and the Concert Promoters’ Association, headed "PRS for Music to extend consultation on Tariff LP". The release concerned

" ... an extension on the consultation period for Tariff LP which is applied to ticketed live popular music events such as concerts and festivals. Originally Monday, 8 June 2015, the deadline for responses is now 30 September 2015.

The extension has been granted following the Concert Promoters’ Association’s (CPA) stated interest in conducting its own research in response to PRS for Music’s consultation documentation which was announced on April 13. The extension will allow the CPA and other industry groups to respond comprehensively to the consultation. PRS for Music welcomes the industry-wide commitment to engaging in this process. The CPA represents 45 members and 14 associate members that are active promoters of live music concerts, concert tours, events and festivals.

The extension is also supported by the following industry bodies in the live sector: Association of Independent Festivals, Association of Festival Organisers, British Association of Concert Halls, Music Venues Trust, National Arenas Association, National Open Air Events Association, Society of London Theatre/UK Theatre, Night Time Industry Association and The Event Services Association/Event Industry Forum.

The aim of the consultation is to conduct a comprehensive review across the live music industry to ensure that PRS for Music operates an appropriate tariff for its customers and members.

This tariff is applied to ticketed live popular music events such as concerts and festivals performing songs composed by PRS for Music songwriters and composers. The tariff was originally set in 1988 and works out at 3% of gross box office receipts per event. A separate tariff, Tariff LC, which applies to live classical music concerts, is not within the scope of this consultation.

Further details can be accessed from the PRS website here.

PRS for Music targets live music and festivals

PRS for Music (PRS) have launched a new eight week long Popular Music Concerts Tariff (‘Tariff LP’) Consultation to review the licensing structure for the use of music in the live music industry in the United Kingdom. Tariff LP is applied to ticketed live popular music events such as concerts and festivals. The consultation will run from 13th April to 8th June 2015.

Tariff LP is a Tribunal tariff that was set in 1988 by the Performing Right Tribunal, which later became the Copyright Tribunal. Having failed to amend the Tariff in 2010 (after a much criticised review which alienated large parts of the festival sector who said the review was poorly timed as it conincided with their busy festival season in the UK) the PRS say the purpose of the 2015 consultation is to seek views on the findings of a comprehensive investigation by PRS for Music into the changes in the live music industry since 1988, "to ensure that PRS for Music is operating a tariff that is fit for the purpose of licensing live popular music events going forward."

The Consultation Paper is somewhat critical of the 1988 Performing Right Tribunal's decision - albeit with hindsight and acknowledging this is because of changes in the live sector. The paper notes "There were, and still are, two essential elements to Tariff LP, namely (i) the revenue base, and (ii) the tariff percentage rate. The 1988 Tribunal decision did not focus on the revenue base, "doubtless because at that time the only material revenue stream was the ticket price. This was uncontroversial and therefore not considered by the Tribunal in 1988. The position is however very different today. As to the appropriate tariff percentage rate, the 1988 Tribunal regarded the musical composition’s contribution to a live concert as relatively minimal, with the production and artist performance being “significantly more important” than the underlying PRS for Music repertoire". Tariff LP currently charges 3% of gross receipts per event.

The PRS say their tariffs need to be 'fit for purpose' and that the tariffs need to reflect the market in which they operate. PRS consider that, in the following respects, the current Tariff LP does not satisfy this criterion:

1. The Tariff fails adequately to reflect the changes in the revenue structure of live events since 1988, including the wide and varied revenue streams from which many live events now benefit;

2. The Tariff fails adequately to value the contribution that the musical composition makes towards the success of live concerts and festivals;

3. The licensee declarations made under the Tariff fail properly to account for the actual final
price (including e.g. booking fees) that consumers pay for access to many live concerts, thereby ading to ongoing underpayment under the Tariff;

4. The Tariff fails to account for free or discounted tickets and, in this regard, the revenue base as defined in the Tariff currently does not reflect the value of this type of admission. 

The PRS note that the economics of the live industry, including its revenue stream structure, have changed significantly since 1988. Part of the change in the live industry’s revenue structure has been driven by the internet, having shaped for example the way event tickets are sold and bought. The PRS would like to explore applying the Tariff to:

1. Secondary ticketing
2. Booking fees charged to consumers
3. Sponsorship and advertising
4. Other ancillary revenues (such as merchandising sales and catering at live events,
parking concessions and camping/accommodation

Targeting secondary ticketing is an interesting move. Whilst some promoters and artistes undoubtedly do benefit from commercial arrangements in the secondary ticketing market - many do not and many oppose the secondary ticketing sector, broadly classifying it as 'touting'. The PRS argue that "live music event organisers seem to derive considerable value from the secondary market through “direct allocations", whereby tickets, often with premium features, bypass the general sale and are allocated to secondary ticketing agents who often sell them at high mark-ups, in exchange for a share of the proceeds to the event organisers.  We consider that the full price paid by consumers on these allocated tickets falls within the scope of the current Tariff LP." The Government recently announced a year long statutory review of secondary ticketing as part of the Consumer Rights Bill which was amended to require more transparancy from ticket sellers (and secondary ticketing platforms). The Competition and Markets Authority also recently issued a guidance to secondary ticketing companies. 

The PRS have also released details of a 2014 online survey of 780 consumers who went to live events which (perhaps unsurprisingly) shows that: (a) The value of a musical composition is broadly commensurate to the value of the performance at live events and (b) The value of music to a festival is highly significant and far outweighs other factors in influencing whether an individual should attend. The survey is no doubt intended to fight back against the Tribunal's comment in 1988 that the musical composition’s contribution to a live concert as relatively minimal, with the production and artist performance being “significantly more important” than the underlying PRS for Music repertoire, wth the Tribunal then saying  “[T]he main attraction in all such shows is the stars who perform and the production, rather than the actual music used”. The 2014 survey also found that other festival entertainment activities are deemed insignificant when compared to the importance of music, something which may come as a surprise to many festival organisers. The survey was conducted by FTI Consulting.

Launching another consultation just as the busy UK summer festival and touring season kicks off seems somewhat odd (again!) although the PRS says " Where we are considering or proposing to make significant changes to a tariff or to introduce a new tariff, this includes undertaking fair, reasonable and proportionate consultations and negotiation" and "We aim to set reasonable terms and to apply and administer our schemes fairly and consistently". The 2010 consultation which was launched in June 2010 was twice extended after loud complaints from promoters and festival organisers, eventually closing in 31st December 2010.  In November 2011 PRS for Music has announced the end of its customer consultation on royalty rates for popular music events in the UK. After an extended period of listening and engaging with customers, representative organisations and key stakeholders, the decision was made that no changes should occur to the rate or structure of the tariff. The rate remained at 3% of ticket receipts.

The Copyright Tribunal has jurisdiction over all existing and proposed schemes operated by PRS for Music.

For openesss, the writer must say that he works with the Glastonbury Festival, as well as the Association of Independent Festivaks in the UK, and Yourope, the European festivals associaton.

https://www.prsformusic.com/users/businessesandliveevents/livevenuesevents/consultation/Pages/default.aspx

Implementing the Collective Rights Management Directive: tell the UK government how!

The February 2015 issue of the UK Intellectual Property Office's IP Connect e-zine carries the following notice:

Consultation: Collective Rights Management (CRM) Directive 

The Government has launched a consultation on proposals for the implementation of the Collective Rights Management (CRM) Directive [click here for the Directive's context-setting webpage and here for the actual text].

This Directive aims to modernise and improve the functioning of Collective Management Organisations (CMOs) across the EU. It introduces minimum standards for European CMOs that are intended to enhance governance and transparency and put right holders at the centre of a decision-making. Additionally, it introduces criteria that CMOs wishing to engage in multi-territorial licensing of online music must comply with.

Implementation of this Directive into UK law must happen by April 2016. The Government will be consulting on two options, as well as the discretionary provisions in the Directive and the costs of implementation.

The CRM Directive is a move towards the completion of the digital single market. Its adoption fulfils several of the UK’s policy objectives for collective rights management specifically and copyright more generally. In particular, as one of only two net exporters of music in the EU, the UK stands to gain from the better transparency and governance of CMOs across the EU.

The IPO has already held workshops for all the main stakeholders affected by the Directive: CMOs, independent management entities (IMEs), rightholders and licensees. We are also talking to stakeholders about the need for further events during and after the consultation period.

The Government intends to publish a summary of the responses to the consultation and its response to those responses following the General Election in May 2015.

In the light of those responses it may need to amend the Impact Assessment and will then undertake a technical consultation on the draft Regulations which are required to implement the Directive. The implementing Regulations will be laid in time to ensure that the Directive’s provisions enter into force in the United Kingdom no later than 10 April 2016.

The deadline for comments is midday 30 March 2015. The consultation document and response form are both available on the .gov.uk website [Indeed they are. But if responses are sincerely wanted, why not give a link to the page that deals with the consultation, the 44-page consultation document and the email address to which comments can be sent, copyrightconsultation@ipo.gov.uk, rather than leaving it to the IP blogging community to do so?].

Having read the CRM Directive when it was first published, this blogger formed the opinion that it was very much aimed at a number of collective rights management organisations and countries in the Mediterranean sun-belt and that UK CMOs would have little trouble meeting the standards for transparency and answerability to their members. However, there are still some nuts and bolts to tighten before the mechanism for the supervision of CMO management is in perfect working order. It's good to be consulted, so do make the most of the opportunity.

French Public Consultation on TV Advertising

The French legal regime applicable to television advertising, sponsorship and product placement is currently the subject-matter of a public consultation being conducted by the Ministry of Culture.

Among the issues open for comment are the following:

-          Lifting the restrictions applicable to ads for movie (currently restricted to certain specialized movie channels);

-          Lifting the remaining restrictions on promotional campaigns for retailers;

-          Relaxing the prohibition on referring to a sponsor’s goods and services in sponsored programming; and

-          Extending product placement beyond fiction programming and videoclips.

The consultation is open until July 31, 2013 and the relevant document can be found  here