TONO on the modernization of the Copyright Act

The Copyright Act is to be modernized, and the government has promised to strengthen artists' rights. The Storting is currently putting the finishing touches on the work. We are excited to see if the promise becomes a reality.

By: Cato Strøm, CEO of TONO

TONO is owned and governed by members, and manages and protects copyrights on behalf of copyright holders in musical works. The Copyright Act is the basis for TONO's work, and it is also the most important law for safeguarding authors and their opportunities to have an economic impact within their artistic and creative work - for the good of society as a whole.

longed
The government's work to modernize the Copyright Act is long-awaited. They have signaled that the new law will strengthen artists' rights so that it will be possible to make a living from their work as an artist. Technology is developing rapidly, and Norwegian artists can, and must, compete to a greater extent than before in an international market. At the same time, artists must deal with strong (counter)parties, such as producers, broadcasters and distributors. It is necessary that the new law restores the balance between the parties, which is now in the authors' disfavor.

Over the past year, the authors and performers have intensified their work to get legislators to understand the challenges artists face in the field of copyright. TONO has participated in the hearing in the Family and Culture Committee, and we have submitted a response to the hearing. We have also held separate meetings with all parties in the Family and Culture Committee over the past couple of months. Our main message is that the Ministry of Culture's original consultation note, which was presented in the fall of 2016, must form the basis for the new law. This draft would have restored the balance to a certain extent, but unfortunately many of the elements that strengthened the rights and position of authors were removed from the final bill published in 2017. We have had a good dialogue with the members of the Family and Culture Committee, and feel that they understand the situation of authors. We hope that this will also be reflected in the wording in the final text of the law.

The originators and practitioners are the weak party
In the public hearings, the transferee side has stated that they disagree with the artists' claim that they are the weak party in dealings with the transferees. In this regard, we would like to point out that it is a fact that in negotiations with the transferees of rights, such as distributors, broadcasters and producers, the author is very often the weak party. TONO may be perceived as a strong player, but we are inferior when dealing with counterparties that together represent 15-20 billion kroner. TONO believes that it is obvious to compare the individual author with consumers and the position that consumers have in contractual negotiations with traders. In contractual relations between traders and consumers, the trader has a special responsibility to ensure that standard terms offered to consumers are reasonable, balanced and clear. TONO believes that a similar responsibility must rest on the transferees of rights in negotiations about the transfer of copyright. The current situation, as it has been for a number of years, is that in negotiations with rights transferees, authors are often presented with unclear and extensive standard agreements so complex that it is difficult to see the consequences of what they are actually entering into an agreement about. Authors are often faced with demands from rights transferees that all rights must be transferred in perpetuity, so-called "buy out" agreements. In these negotiations, authors have very little to offer and find that they have no way of refusing what is offered. Then the assignment goes to someone else. We have seen a number of examples of this. It is therefore crucial that the new Copyright Act contains tools that, to the greatest extent possible, safeguard the interests of the rights holders.

The right to fair compensation has limited value without a dispute resolution mechanism
TONO has commented on a number of the provisions in the bill, both in its consultation response and in its direct communication with the Family and Culture Committee. I would like to briefly comment on provisions 69 and 71 of the Copyright Act.

Section 69 deals with the right to reasonable remuneration for the transfer of copyright. This is a completely new provision and TONO finds it positive that this is included in the legal text. It is nevertheless important to point out that the provision will have limited value without a dispute resolution mechanism. The parties rarely agree on what constitutes reasonable remuneration, and the ordinary courts are unsuitable for resolving this type of dispute. Firstly, it will take at least three years before a judgment is reached, and a judgment for damages will only apply retrospectively. We know from experience that the costs are enormous. Consequently, copyright holders are rightfully reluctant to bring cases before the ordinary courts. The consequence is that the copyright holders' statutory exclusive right to decide on their intellectual property is eroded. In its communication with politicians, TONO has therefore advocated that society does not benefit from having years of conflicts between rights holders and acquirers going on in the ordinary legal system when these disputes can be resolved in a much simpler, cheaper and faster way.

Paragraph 71 must be removed
The legislator's proposal to legislate the provision on the transfer of copyright in employer-employer relationships has created a great deal of debate. The artists' revolt against the proposed §71 cannot come as a surprise to the legislator. In no Nordic country is this provision legislated. They tried in Denmark, but gave up. TONO believes that it is natural to remove the proposed §71 from the bill. Then the legislator will achieve the desired Nordic legal unity, and both rightholders and assignees can still live with an unstatutory right as they have done for all these years.

Read TONO's consultation response to the Family and Culture Committee here (dated February 1).