IAO is among the signatories of the joint letter gathering the music sector in a petition to the EU current Presidency (Bulgaria) regarding the Value Gap issue.
Monday, 29 January, 2018
Dear Prime Minister Borissov,
Dear Minister Pavlova,
Dear Minister Banov,
We represent musical, audio-visual, literary, visual authors; book, press, musical, scientific, technical and medical publishers; recorded music, film and TV producers; football leagues; broadcasters; distributors and photo agencies.
These are at the very heart of Europe’s creative sector.
We have formed an alliance to campaign for a solution to a major problem which is holding back our sector and jeopardising future sustainability – the Transfer of Value, otherwise known as the Value Gap.
The Value Gap is the growing mismatch between the value that online User Uploaded Content (‘UUC’) website services extract from creative content and the revenues returned to the creative community.
User uploaded content services have become vast distributors of our creative works e.g. film, music, photos, broadcasts, text and sport content – all while refusing to negotiate fair or any copyright licences with us as right holders.
This problem is caused by a lack of clarity surrounding the application of copyright to certain online services and the abuse of European copyright ‘safe harbour’ rules in the e-Commerce Directive (2000/31/EC) by those services.
Bulgaria’s EU Presidency provides the unmissable opportunity for a solution as it will lead the Council’s work on the EU Copyright Directive proposal, which was tabled by the European Commission in September 2016.
As an alliance we are convinced that the European Commission’s proposal is a step in the right direction to provide for a balanced and effective solution that should clarify that:
UUC services communicate to the public under the EU copyright framework and therefore are obliged to obtain licences for copyright protected works, unless eligible for e-Commerce Directive ‘safe harbours’;
UUC services who play an “active role” (for instance by promotion or optimisation of content) cannot benefit from ‘safe harbours’.
There is no solution to the Transfer of Value/Value Gap problem without those key elements. This approach is supported by CJEU jurisprudence, most notably in the L’Oreal v. eBay[1] and Stichting Brein v. Ziggo BV (‘The Pirate Bay’)[2] cases. The approach is also in line with the acquis communautaire – as has been noted by the Council’s Legal Service – and with international copyright law.
It is important to recall that the underlying policy objective of this legislation is to address the current unfairness in the online market due to the misapplication of copyright liability rules by UUC services. We would therefore like to stress that the focus should remain on finding effective solutions to tackle this issue.
As an alliance, we look forward to working with your Presidency to achieve an effective solution to the Value Gap problem for the benefit of Europe.
We remain at your disposal for any further information you may require.
Yours sincerely,
[1] Case C-324/09 (2011). Judgment available here in Bulgarian.
[2] Case C‑610/15 (2017). Judgment available here in Bulgarian.