Collective Management of Music Copyright Directive

While the internet and digital culture has changed the way we consume media, the internal market hasn't quite kept up. The Commission's approach to extending the internal market online is based on the Digital Agenda for Europe (PDF) and the Single Market Act (PDF), which show a greater emphasis on EU legislation to extend the internal market online. When it comes to online music services and the transparency of collecting societies, so far there has only been a non-binding recommendation (PDF) inviting the Member States to promote these goals, but now the Commission has introduced a draft Directive to tackle these issues (PDF).

On the transparency and accountability of collecting societies (that collect royalties and then distribute them to the artists after taking a cut), the directive would codify minimum requirements governing the membership and powers of the members, along with the societies' duties when performing their financial and negotiation roles (such as distributing income due to the artists without undue delay and requiring negotiations to be conducted in good faith) (Title II). The Directive is intended to shift the power balance in favour of the members by setting out reporting duties for the collecting societies - the idea being that a better informed membership will be equipped to demand better services and so improve the position of music artists.

The second pillar of the Directive introduces multi-territorial licences to break down barriers within the internal market (Title III). Currently music rights are granted on a territory-by-territory basis, which naturally gives raise to barriers in the market. The multi-territorial licences (MTLs) won't replace the current system, but they will be an extra option for collecting societies. Interestingly, the Directive provides for artists being able to by-pass their collecting society under certain circumstances (Article 30) if the collecting society does not grant MTLs in music rights. The rightholder will be then be able to grant licences for their own online rights either directly or through another intermediary. Clearly this is meant to free artists to exploit their work across the EU and boost the use of MTLs by ensuring that rights will not be bound up nationally because of the policy and power of collecting societies (or by their inability to process them or otherwise fulfil the MTL requirements).

One of the major concerns for the music industry is that this would promote the homogenisation of music across Europe. While it may intensify homogenisation, there is already a degree of globalisation and Europeanisation of music that it unlikely to diminish by maintaining some market barriers. Having MTLs could also open up more audiences for niche artists as well by making a wider variety of music available to consumers - after all, the internet can prove useful as a tool for band promotion.

Legislatively, the directive is still at the first reading stage in the European Parliament, with Marielle Gallo (EPP) working on as the rapporteur for the Legal Affairs committee. The EESC has delivered its (non-binding) opinion on the draft, which largely welcomes the draft in its current form.

Deal on the European Protection Order Directive

The Council and Parliament have reached a deal on the European Protection Order Directive, originally proposed by Member States, ensuring that it will sail through the first and second legislative readings. The EPOD is aimed at protecting people subject to protection orders under their national criminal law, while allowing them to exercise their free movement rights (draft legislation PDF here). The Directive would apply to protection orders made by national authorities under criminal law (there's a separate measure dealing with civil law), which impose restrictions on persons that pose a risk to another such as:

"(a) a prohibition from entering certain localities, places or defined areas where the protected person resides or that he visits;

(b) a prohibition or regulation of contact, in any form, with the protected person, including by phone, electronic or ordinary mail, fax or any other means; or

(c) a prohibition or regulation on approaching the protected person closer than a prescribed
distance." [Article 5]

Protection orders would be issued normally by Member States under their national law, but if the person they are meant to protect resides in another Member State or wants to move to another Member State, they can request a EPO to extend the protection in the original national protection order so they are covered in their host Member State. So the proposed EPOD works on a modified mutual recognition model - the national measures made in one Member State are recognised and enforced in another Member State, though in this case a request for a European version would need to be made, and then the executing Member State would transpose it via a national measure. The Directive would only apply to victims/potential victims of crime, and not witnesses, so it isn't part of some European witness protection scheme.

From a legal perspective, this modified route to mutual recognition is quite interesting, and shows some movement on the use of mutual recognition measures by allowing for the difference in Member State's legal systems (a mix of criminal, civil and administrative measures). I haven't taken a close look at the jurisdiction/competence issues around the mini-Member State directives that will be EPOs, however. Hopefully the Parliament hasn't missed anything it might later regret...

Meanwhile, in Brussels, Climate Change legislation rumbles on...

I return once again to the glamorous world of citizen-legislative-journalism with a new Think2 post on energy efficiency. You can read it on the Think2 platform here, where there's also lots of interesting coverage of the COP15 conference that's now taking place in Copenhagen.

The appearence of the Danish Text has caused outrage in Copenhagen, and rightly so (I can only hope that it's some sort of diplomatic tactic to concentrate minds and help spur on alliances in order to push a good deal through). Meanwhile, in that other famed *ahem* hotbed of politics, the Council of the European Union (also known as the Council of Ministers - think of it as the Senate of the EU system), the recasting of building regulations was up for consideration.

Does this matter? Behind every good summit stands an army of bureaucrats rolling their eyes at the paperwork: boring as it may be, these directives and regulations are the much desired practical follow-up and implementation of the lovely political rhetoric we get to hear on climate change.

The proposals themselves aren't overly ambitious, though their aims may sound ambitious: the aim is to recast regulations of the building sector on its energy performance (PDF) in such a way that combines several political objectives. The proposals should increase the energy performance of new buildings and renovated buildings, boost the building sector with some new work through these requirements, help reduce the energy costs of citizens, help to reduce carbon emissions and so help member states meet their international and European commitments on climate change. It would be great if it really had this effect, but though it aims to restrict state aid to building work that doesn't comply with the requirements under the directive (eventually), market forces are still the central element here: the regulation is trying to direct the market in such a way that it dovetails with climate change goals. However, even if the law encourages more building work and economic activity, I doubt that there will be a such a great level of economic activity in this area now (or member state intervention) that the differences made by this law would approach a considerable scale, but it's still a step in the right direction.

It's also important to have action in this area because:

"The buildings sector – i.e. residential and commercial buildings - is the largest user of energy and CO2 emitter in the EU and is responsible for about 40% of the EU's total final energy consumption and CO2 emissions. The sector has significant untapped potential for costeffective energy savings which, if realized, would mean that in 2020 the EU will consume 11% less final energy.

Since the law would be a directive, member states have can choose exactly how to transpose it into their national legal systems (directives require member states to pass national laws giving effect to them, rather than the EU just passing a law and it being law across the EU automatically [though it can do that as well]). This means that the process will be quite slow. The measure was proposed in January 2007 (which perhaps explains the greater faith in the market to some degree), and it still hasn't passed. When it does, member states will have until 31st December 2010 to transpose the law and until 31st January 2012 to fully implement it. Though it's better to get it done right than to have a sloppy law, it hardly gives the same impression of urgency as the rhetoric of the politicans. Considering that the Commission thinks that only 22 member states have implemented the original measure fully, it will probably be a lot longer than 2012 before the law is sorted out properly."

As residential buildings aren't covered by the Emissions Trading Scheme, it would fill a gap in the EU's climate change/emissions strategy.

Still, it reads better at the moment than the state of play at COP15...