For the PDF version of the statement, both in Spanish and English please click here.
Brussels, 1st October 2018
As the Spanish Congress plans to adopt a reform of Spain’s Intellectual Property Code, the European Composers and Songwriters Alliance (ECSA) – which represents over 50,000 professional composers and songwriters in 27 European countries – urges Members of the Spanish Congress to promote fair competition and enhance cultural heritage by putting an end to the unfair treatment music authors are suffering for decades.
The Spanish Intellectual Property Code provides for specific obligations for publishers, including the duration of contracts, which are limited to 15 years (Article 69, paragraph 4). However, Article 71 provides for an anachronistic exception for music publishers which allow them to use their systemic strong bargaining power for contracts covering the entire duration of authors’ rights (70 years after the death of the author). This injustice is not only completely obsolete in the digital age but also harmful to the principles of fair remuneration, fair competition and the flourishing of Spanish culture.
- The duration of authors’ rights (70 years after the death of the author) and the duration of transfer (contracts between authors and publishers) are two entirely different concepts. The term of protection, as laid down by international and European law, was intended “to provide protection for the author”, not to lock authors’ work in the hands of publishers. That is why the Spanish legislation provides a limited duration for publishers’ contracts (15 years). Article 71 puts therefore music authors in an unfair and discriminatory position towards nonmusical authors. This is not acceptable.
- With the digital era and the rapid evolution of the music sector, such a long duration of transfer prevents music authors from both taking into account the different and dynamic modes of exploitation and taking back their rights in case the publisher does not exploit the works correctly or does not provide for a fair remuneration. It is obvious that such duration is detrimental to the fair remuneration of authors, in a context where the revenues’ streams generated by digital exploitation could not be foreseen by the music author.
- Article 71 results in a lose-lose situation for everyone: It is damaging for consumers since it prevents them to access and enjoy musical works if the author’s works are not exploited by music publishers. It is also prejudicial to fair competition since it prevents another publisher or the author to exploit the work. Last but not least, it has an adverse effect on cultural diversity and heritage since it tends to lock works in the hands of publishers without giving them an incentive to properly exploit them.
- Several EU countries and the US provide for different mechanisms to limit those anachronistic abuses by either limiting the duration of transfer (35 years in the US for example) and/or providing a right of revocation that allows authors to take back their rights if the works are not properly exploited by the publishers (in Nordic countries and Germany for example). Common practices in several European Union’s Member States also show that the duration of contracts does not extend to the full term of authors rights. In the UK for example, the newest contracts in the music publishing sector usually range from 15 years to 25 years. In France, a code of practice sets out the obligations of publishers and authors in the field of music publishing. At the European level, the European Parliament adopted very recently and by an overwhelming majority several very positive provisions for authors (Chapter 3 of the Copyright Directive), including a right of revocation. Those developments show that the European Union and several Member States are increasingly taking into account the need to rebalance the contractual position of music authors in the digital age. Spain should not lag behind and put an end to anachronistic provisions that have a detrimental impact on fair remuneration of
We therefore urge Members of the Spanish Congress to support the deletion of Article 71 (amendment 6). The Spanish Congress should now seize this opportunity to promote a fair treatment of music authors in the digital age and act in favor of both fair competition in the music sector and the flourishing of Spanish culture.
Alfons Karabuda, Swedish composer, President of ECSA – European Composer and Songwriter Alliance.
Marc du Moulin, Secretary General of ECSA – European Composer and Songwriter Alliance.