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Tuesday, 13. April 2021

Distribution Rules: Decision of the Federal Institute for Intellectual Property

The Federal Institute for Intellectual Property has approved the following amendments to SUISA's Distribution Rules:

Follow the respective link to the wording of the decision, available in German only. The individual amendments to the Distribution Rules are published in German, French and Italian in the Swiss Official Gazette of Commerce (SHAB/FOSC).

 

 

The fees for the retransmission of broadcasts are collected by SUISSIMAGE under three common tariffs (CT 1, CT 2a, CT 2b). Common Tariff 2a applied to retransmissions relating to the terrestrial distribution of broadcasts. Since these were discontinued in 2019, CT 2a no longer generates any revenue. Accordingly, the removal of CT 2a from the Distribution Rules is a purely editorial step and has no impact on the actual distribution of revenue from the remaining retransmission tariffs.

 

 

Common Tariff 11 (CT 11) regulates the use of archived works in accordance with Article 22a CopA. An archived work within the meaning of the Copyright Act is a work created by a broadcasting organisation which was first broadcast at least ten years previously. So far the Tariff has not been applied. On 1 January 2021, a new tariff came into force which will be simpler to apply. The recently approved changes regulate the distribution of possible revenues under CT 11; these revenues will be allocated for two thirds to distribution categories 2A and 2C and for one third to distribution categories 2B and 2D. Only very few music uses have so far been accounted under CT 11 because SUISA’s broadcasting tariffs take precedence and also apply to archived works. Moreover, archived works that are primarily musical do not fall within the scope of Article 22a. In the musical context, CT 11 only applies to the archived works of private broadcasters if the rightholders are not members of a collecting society. Common Tariff 11 (CT 11) regulates the use of archived works in accordance with Article 22a CopA. An archived work within the meaning of the Copyright Act is a work created by a broadcasting organisation which was first broadcast at least ten years previously. So far the Tariff has not been applied. On 1 January 2021, a new tariff came into force which will be simpler to apply. The recently approved changes regulate the distribution of possible revenues under CT 11; these revenues will be allocated for two thirds to distribution categories 2A and 2C and for one third to distribution categories 2B and 2D. Only very few music uses have so far been accounted under CT 11 because SUISA’s broadcasting tariffs take precedence and also apply to archived works. Moreover, archived works that are primarily musical do not fall within the scope of Article 22a. In the musical context, CT 11 only applies to the archived works of private broadcasters if the rightholders are not members of a collecting society.

 

 

In the framework of the CopA revision in 2019, new provisions relating to orphan works were introduced in Article 22b CopA. The licensing revenues from such works must be set aside for 10 years for the possible rightholders. If no rightholders present themselves within those 10 years, the reserve shall be released and the proceeds used in their entirety for social welfare purposes and for the promotion of culture. The recently approved amendments of the Distribution Rules implement the statutory provisions. It is noteworthy that works only qualify as orphan works within the meaning of Article 22b if they originate from works in memory institutions or broadcasting organisations and provided that the rightholders cannot be found following an appropriate research effort conducted before the work is used. Searches for works in SUISA’s repertoire always find that the rights are held by SUISA. The works of SUISA members or of members of foreign sister societies can, therefore, never qualify as orphan works within the meaning of the CopA. As a result, SUISA can offer its clients nearly the entire global repertoire of non-theatrical music through contracts with its own members or reciprocal agreements with its foreign sister societies. The possible share of orphan works in the field of non-theatrical music is thus very small. Only musical works by authors who are not members of any collecting society can be deemed orphan works within the meaning of the CopA. These rights then vest with SUISA by law. In the framework of the CopA revision in 2019, new provisions relating to orphan works were introduced in Article 22b CopA. The licensing revenues from such works must be set aside for 10 years for the possible rightholders. If no rightholders present themselves within those 10 years, the reserve shall be released and the proceeds used in their entirety for social welfare purposes and for the promotion of culture. The recently approved amendments of the Distribution Rules implement the statutory provisions. It is noteworthy that works only qualify as orphan works within the meaning of Article 22b if they originate from works in memory institutions or broadcasting organisations and provided that the rightholders cannot be found following an appropriate research effort conducted before the work is used. Searches for works in SUISA’s repertoire always find that the rights are held by SUISA. The works of SUISA members or of members of foreign sister societies can, therefore, never qualify as orphan works within the meaning of the CopA. As a result, SUISA can offer its clients nearly the entire global repertoire of non-theatrical music through contracts with its own members or reciprocal agreements with its foreign sister societies. The possible share of orphan works in the field of non-theatrical music is thus very small. Only musical works by authors who are not members of any collecting society can be deemed orphan works within the meaning of the CopA. These rights then vest with SUISA by law.

 

 

 

This provision has been amended several times to reflect changes in the tariff or distribution categories. In the past, distribution was based on considerations made relying on the copying sources. Allocations based on such considerations were no longer appropriate, however, and this revision is designed to change the calculation basis. Henceforth, the distribution channels where works are copied for private purposes and are also used will serve as the distribution basis provided SUISA has sufficient information on the works used (concerts, cinema theatres, radio and television, etc.).
This provision has been amended several times to reflect changes in the tariff or distribution categories. In the past, distribution was based on considerations made relying on the copying sources. Allocations based on such considerations were no longer appropriate, however, and this revision is designed to change the calculation basis. Henceforth, the distribution channels where works are copied for private purposes and are also used will serve as the distribution basis provided SUISA has sufficient information on the works used (concerts, cinema theatres, radio and television, etc.). More information on this shortly on the SUISA blog.

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