Saturday, 29 April 2017

Sapphire Ng | Law - IMP Lecture, at InHolland University of Applied Sciences, Haarlem [International Music Licensing]

Writer: Sapphire Ng

Berklee College of Music “International Music Licensing” April 13-22 2017 course trip to Amsterdam/Haarlem, Netherlands + Educational exchange in InHolland University of Applied Sciences, Haarlem.

Law - IMP Lecture at InHolland University of Applied Sciences, Haarlem
Lecturer: Guus Bleijerveld
[April 18th 2017, Tuesday - Classroom N1-06 ]

The lecturer Guus is a rather dynamic character. He was humorous at times and certainly brought life into the classroom. I absolutely enjoyed his lecture, both because of the refreshingly and intellectually stimulating content presented and also due to the positive energy of the man who delivered it. Guus notably began the session by curiously introducing himself as one who could fluidly be seen as either “a lawyer who plays guitar” or “a musician who happened to have studied law.”

Almost always inevitable to any preliminary law class related to the music industry would be the discussion of a necessary evil, the subject matter of copyright. Guus cited on his presentation slides part of Article 10 of the Dutch Copyright Act of 1912. The first item says for example that “books, pamphlets, newspapers, periodicals and all other writings” would be protected under Art. 10 of the copyright act. Anyone interested in getting hold of a copy of the Dutch Copyright Act for personal study can easily conduct an online search for it.

Guus got the class going by first mentioning, if even seemingly disparate, points of divergence or even potential similarities between the Dutch and US copyright law, including as well details of standard music industry deals that might differ in the Dutch system as compared to the American system. Guus mentioned that the Dutch copyright law distinctly refers to “sound recordings copyright” instead as “neighboring rights.”

Interestingly, and in striking difference from the US, Guus mentioned that two different and separate rights for lyrics and composition exist in the Netherlands. He expanded on the idea by mentioning that in the Netherlands, one can apparently rather “easily” obtain the rights to the lyrics of a song, which one can then proceed to “put another composition over the lyrics.”

I found the differences in publishing deal splits between that of the Netherlands and the US to be especially fascinating. Guus declared that standard publishing deals in the Netherlands are split 3-ways, specifically ⅓ for composition, ⅓ for lyrics, and the final ⅓ for the publisher which stands in direct contrast to the typical 2-way split in US publishing deals. I certainly appreciate that Guus seemed generally well-prepared in communicating differences between the Dutch and US system, as he continued to rattle off another point of differentiation. He noted that Dutch copyright law does not include distribution rights, which clearly juxtaposes that of US copyright law which includes distribution rights.

As a lead-in to the matter of streaming, Guus posed such a question to the class, “Do you need reproduction rights to stream music on Spotify?” He followed the question with clarifying comments such as that Spotify would require the rights to put a copy of any song on their server, and the circumstance implies the need for “temporary reproduction on the internet.”

Guus proceeded to draw the class’s attention to the splits on stream and downloads in the Netherlands. He said that the split on stream is 75/25, with the 75% for communication to the public, and the remaining 25% to the reproduction. The split for download is noted to be the exact opposite at 25/75, with 25% for communication to the public, and the other 75% to the reproduction. Distinctly refreshing is Guus’s regular use of the phrase “communication to the public” that is otherwise not used under the US system. Paragraph 4 of the Dutch Copyright Act which encompasses Article 12 and 12a notably deals with the concept of “communication to the public,” a unique phrase that the Dutch copyright law employs to convey the notion of “the communication to the public of a literary, scientific or artistic work.”1

In noting certain parallels between the Dutch and the US copyright law, Guus mentioned in passing that the Netherlands similarly has moral rights, which is addressed in Article 25 of the Dutch Copyright Act. As for the American fair use concept, it is also somewhat reflected in the limitations laid down by the Dutch Copyright Act. When it comes to the “object of protection” of the “performance of a song on commercially released phonogram” in the Netherlands, Guus elaborated the encompassing rights of reproduction, distribution, and communication to the public, but noted the lack of moral rights however for the phonogram producer.

It was exciting when the discussion then shifted into the realm of Dutch collecting societies, especially so because an earlier assignment in my International Music Licensing course in Berklee involved researching the entities of collecting societies in countries of your choice. I conducted research on the collecting societies of Iceland and of Malaysia. Listening to presentations by fellow classmates on collecting societies of countries as diverse as Japan, France, Canada, Sweden, Australia, South Africa and more further intensified my interest in the domain.

It was thus almost naturally fascinating when Guus started to talk about local Dutch collecting societies. He first mentioned BUMA and STEMRA—BUMA is said to be a collecting society which deals with communication to the public for a world repertoire where one does not necessarily have to be a member; and STEMRA on the other hand pertained to reproduction and mechanicals. I conducted a little further research and learned that the two collecting societies are distinctly separate bodies under the operation of the single company BUMA/STEMRA2. The BUMA Association is otherwise known as “Vereniging Buma” in Dutch, and the STEMRA Foundation as “Stichting Stemra.”2 Guus then mentioned “stichting thuiskopie” which directly translates into “foundation homecopy,” and noted that homecopying is “a big thing” in the Netherlands. Further information and even related documents on Dutch homecopying are available on this website http://www.thuiskopie.nl/nl/about-thuiskopie.

Guus subsequently mentioned the collecting societies SENA and NORMA as well, highlighting that SENA deals with communication to the public of “commercially released phonograms,” whilst NORMA covered other forms of exploitations including homecopying levy, public lending rights, and background music (in response to Guus’s mention of “background music” within the Dutch context, the accompanying Berklee professor on this trip, Andrea Johnson chimed in that it is in turn referred to as “wired music” in the US, relating to for example music played in elevators), with the clear exclusion of commercially released phonograms.

Guus further indicated that SENA is the “most important for the music industry,” and it does not deal with reproduction, nor with audiovisual works. Under the Dutch collections system therefore, venues that play recorded music will be required to pay the collecting societies SENA and BUMA. These two collecting societies will in turn collect the money and subsequently pay them out to rights owners—BUMA to authors, and SENA to musicians.

Next, Guus directed the class’s attention onto neighboring rights, by opening with the idea that whilst “labels have neighboring rights, publishers have copying rights.” He noted that neighboring rights used to be called “master rights,” a term that he considers to be a rather inaccurate reflection of its substance and function, as “master rights” apparently involve not only the masters, but also rights for performing artists. Guus proceeded to provide elaboration on the concept of neighboring rights—it is “the rights of the performers of a piece of art,” and a neighboring rights owner is “a performer who is performing another piece of art.” Four parties were said to be involved in the scope of neighboring rights, namely the performing artist, phonogram producer, film producer and broadcaster. As an illustrative example, Guus mentioned that in the event a Dutch actor acts in a movie broadcasted in the US, the artist will then collect related income as what is called neighboring rights.

Guus then crossed the threshold into an even more intriguing realm. He remarkably deemed the European music industry to be somewhat “discriminating.” He clarified his sentiment by noting that Dutch musicians for example are treated rather differently from French musicians. It was certainly new and even surprising for me to learn that the song of a Dutch artist who sings in French is said to have much more promising prospects—in the sense of for example, greater radio airplay—compared to the same artist who might choose to sing in Dutch. Guus mused that maybe the French language does lend more appeal to French songs.

Another astonishing discovery I made in the lecture was that apparently there is no way in the Netherlands for one to detect if someone illegally downloaded music online. It was also interesting to learn that it was only rather recently, merely “around 2 to 3 years ago,” that it only became illegal to download others’ music online in the Netherlands; it was considered legal to do so just not long ago.

I also especially enjoyed the discussion on public lending rights. It was almost my very first exposure to the concept of public lending rights, and I was therefore exceptionally intrigued. This right is said to apply in the case of for example, library lending where rights owners will presumably be paid whenever a CD or DVD is loaned to the public. Libraries in the Netherlands were said to be able to buy a CD or DVD at the wholesale price, or at a 50% reduction in commercial price of the product. It was absolutely intellectually fascinating for me to learn that in the Netherlands, with the application of the public lending rights, members of the public who rent a CD from the library is allowed to download the contents of the CD into a personal laptop as long as the library dutifully pays rights owners every time the CD is borrowed. To put this into perspective, Guus noted that lending is thus “an exception” under the Dutch Copyright Act; lending is treated differently from illegal downloading, or even streaming.

It was also stimulating when Guus mentioned the concept of “tying,” along with its Dutch equivalent known as “koppelverkoop,” which otherwise directly translates as “couplings.” “Tying” in the context of music industry deals was accessibly explained as the obligation to sign the next deal as mandated by the signing of the first deal. Guus made sure to repeat and emphasize that despite such a practice of “tying” or “koppelverkoop” to be “almost normal” in the Dutch music industry, it is unmistakably “illegal.” I’ve found a rather wonderful primer to the concept of “tying” and “tying arrangements” on the American Bar Association website: http://www.americanbar.org/groups/young_lawyers/publications/the_101_201_practice_series/the_wonderful_world_of_tying.html.

Additionally, Guus also noted that despite the illegality of the inclusion of the language “for all the existing and future repertoire” in Dutch music industry contracts, such language continue to appear within contract clauses. On another interesting note, Guus also mentioned in passing that apparently the notion of “monopoly” exists in the Netherlands’ copyright scene that thus differs from the US. I would surely have loved if Guus actually further fleshed out this assertion.

During the lecture, despite Guus’s rather fleeting mention without further specificities of a lawsuit pertaining to digital lending rights in the Netherlands, I distinctly felt invigorated after to conduct further independent research on the lawsuit in question and even on the wider, and potentially formidable, repertoire of Dutch lawsuits in general, whether related to the Dutch music industry or otherwise.

I certainly couldn’t help it as well that even with Guus’s another cursory mention of “a little differen[ce]” in music consumption trends in Germany and UK in contrast to the rest of Europe—that people in the UK “still buy music”—I again instinctively registered another item onto my to-do list, specifically to conduct research on the music markets of various European countries and if I’m able to, even establish notable differences between them. With Guus’s mention of the UK copyright law, I realize that I just might download a copy of the UK’s Copyright, Designs and Patents Act 19883 as well, and do some advance reading to the best of my abilities prior to the start of my law studies in the UK in less than 6 months’ time.

I would venture to say that Guus’s radiating humility makes him even more appealing as a lecturer. I found it incredibly hilarious that in the mentioning of the phrase “equitable remuneration” in class, Guus candidly said that he needed to practice pronouncing it the way Berklee students or professors would need to practice the pronunciation of a single vowel or consonant sound in Dutch. The class, at least the Berklee students and not necessarily including the Dutch students, also instantly roared in laughter when Guus confidently told the class that he is also unable to pronounce the English word “reciprocity." I guess I could empathize with Guus as I personally struggled especially trying to pronounce with integrity the second half of the Dutch word “aardig.” “Aardig” means “nice” in English, and I learned from one of my Dutch hosts how to say “You are nice” in Dutch. The struggle is indeed real hahaha.

This is undisputably one of my most favorite lectures that I’ve attended in this exchange with InHolland University of Applied Sciences in Haarlem. This lecture itself is almost somewhat of a representation of the harmonious synchronicity of hearty cultural and intellectual educational exchange that embodies the trip as a whole.


Sources:

1Copyright Law 1912, Auteurswet 1912 (1912). Print.

2"BUMA/STEMRA." Collecting Societies Handbook. Baker & McKenzie and the World Intellectual Property Organization, n.d. Web. 29 Apr. 2017.

3Copyright, Designs and Patents Act 1988 (1988). Print.



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