After six years of trying to establish an agreement with the Oslo Philharmonic Orchestra (OFO), TONO issued a summons against the Oslo Philharmonic Orchestra in April. The trial begins today in Oslo District Court.
/ 17/08/2021 / Willy MartinsenSince the 1960s, the Oslo Philharmonic Orchestra (OFO) and similar companies have paid performance fees to composers through TONO based on a small share of the orchestras' total operating revenues, including operating subsidies from the public sector. OFO receives approximately NOK 175 million annually to ensure that quality performances of classical and contemporary repertoire are available to everyone.
TONO's press release about the summons from April, "TONO issues summons against the Oslo Philharmonic"
– The composers write the music that is performed, and thus the composers are a fundamental part of an orchestra's value creation. When the Oslo Philharmonic's finances are primarily financed through state subsidies and not ticket sales, it is natural that the state subsidy is also used as the basis for payment to the composers. This was what OFO and other similar orchestras agreed with TONO for several decades. Unfortunately, in the last five years they have taken a completely different position, says TONO CEO, Cato Strøm.
The current disagreement dates back to 2015 when TONO terminated its agreement with OFO in order to initiate negotiations on a new agreement that would also include all orchestral companies. TONO experienced little willingness to meet the composers, and from 2016 OFO has on its own initiative paid the composers approximately 50 percent less in annual TONO remuneration than before. The reason is that they unilaterally decided to pay TONO according to the ordinary concert tariff based on ticket sales.
When TONO now meets OFO in the district court, TONO is demanding a total compensation of NOK 3,222,736 for the years 2018-2020 (however, this is specifically a demand for payment of a residual claim of NOK 1,785,497 after previously paid compensation from OFO), and that the annual performance fee to TONO from 2021 shall constitute 0,55 percent of the total operating revenues of the Oslo Philharmonic Foundation. TONO believes this is "reasonable compensation" under the Copyright Act. OFO has rejected all of TONO's proposed solutions, including both mediation and voluntary arbitration.
TONO Chairman Jørgen Karlstrøm finds it sad that two cultural actors like TONO and the Oslo Philharmonic Orchestra have to end up in court.
– TONO and the orchestra companies have a decades-long tradition of calculating payments to composers based on a percentage of the orchestra companies' total revenues. It is regrettable that we have been forced to request a legal assessment in a case between two cultural actors such as TONO and the Oslo Philharmonic. We find it unsympathetic for the Oslo Philharmonic to attack the payments to composers, he says.
Cato Strøm points out that a lawsuit is resource-intensive and expensive:
– In the absence of a dispute resolution body where cases like this could have been resolved far cheaper, faster, less resource-intensive and where decisions would also have formed guidelines for future practice, we are forced to take cases like this to the ordinary judiciary. This requires enormous resources, both for TONO and for the Oslo Philharmonic, which, rather than entering into an agreement with TONO, is now using public funds to try to pressure down payments to Norwegian composers, says Strøm.
For many years, TONO has called for a dispute resolution body, as several other countries have in their legislation, and most recently in 2018, the Storting asked the Ministry of Culture to investigate this.