[A2k] IMMF Intervention SCCR17 Geneva 5 Nov 2008 - Limitations and Exceptions

[David Stopps]

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Intervention at the WIPO SCCR17  held in Geneva by David Stopps on behalf o=
f
The International Music Managers Forum on Wednesday 5 November  2008
regarding possible international harmonisation of Limitations and
Exceptions.

Mr Chairman, the landscape for Copyright and Related Rights has changed
radically in the past ten years. If we turn on our computer and we have an
on-line connection, we have access to the whole world instantly. With such
global access any work that this prestigious committee can undertake to
harmonise the laws of copyright and related rights has to be very helpful.

Because a user may have certainty on a limitation or exception in their own
country they may have no idea whether the limitation or exception also
applies in another country let alone every country in the world. Therefore
certain basic minimum levels of limitations and exceptions such as that
proposed by the WBU, provided the rights of the legitimate stakeholders are
respected, has to be a good idea. Chile's suggestion of a questionnaire to
exchange information would seem like an excellent first step.

Mr Chairman, the Berne Three Step Test has proved to be a very sound and
useful basis for copyright law concerning limitations and exceptions and we
would very much like to see its application more widely used.

By way of example, the lack of accurate adherence to the three step test in
UK copyright law is causing the UK music industry considerable difficulties=
.
A company distributing DVDs commercially has found a way through the UK law
on fair dealing. The company rip footage by a well known artist such as Pin=
k
Floyd or Iron Maiden and employ a commentator to review the audio-visual
material at the end of the DVD. By doing this they claim that the entire DV=
D
is a work of criticism and review and therefore is a work of fair dealing.

This company have now commercially released over 100 of these DVD's from
different artists, and record shops throughout the UK are devoting
considerable retail space to their sale, as they are proving very popular
with consumers. I recently went into HMV in London and could see 10 DVDs by
the band Genesis. Nine of the ten were fair dealing DVDs where no royalties
were being paid to any of the legitimate stakeholders. Also the artist and
the artist's phonogram producer has no control over the quality of the
material on offer.

Case law in the UK on this issue has all been judged in favour of the
would-be infringer so none of the artists, phonogram producers or music
publishers involved are feeling confident about a legal challenge.

If the UK Government had adhered more closely to the three step test in
their drafting of the laws on fair dealing this problem, which threatens to
undermine the entire UK copyright system, could have been avoided.

Thank you Mr Chairman.
The International Music Manager=B9s Forum represents featured artist music
managers and through them the featured artists (performers and creators)
themselves. These featured artists are those that are the source of over 95=
%
of the economic activity in the global music industry. Featured artist musi=
c
managers are uniquely placed to comment on music industry issues, as they
are the only group of professionals that deal with every aspect of the musi=
c
industry and the copyright system as it applies to music on a daily basis.
Music managers are responsible for every aspect of the artist=B9s career
including interfacing and negotiating with phonogram producers, music
publishers, making arrangements for touring, sponsorship, merchandising, an=
d
ensuring that all the available income streams, including those from
collection societies, are properly managed. Managers are generally
remunerated on a commission basis (usually in the region of 20% of income
actually received by the artist) so income streams affecting the artist als=
o
directly affect those of the manager. The International Music Managers Foru=
m
comprises 15 Music Managers Forums around the world including Australia,
Belgium, Canada, Denmark, Finland, France, Germany, The Netherlands, New
Zealand, Norway, Poland, South Africa, Sweden, United Kingdom and United
States.




David Stopps
Director of Copyright and Related Rights for the Music Managers Forum UK
Director of Copyright and Related Rights for the International Music
Managers Forum
www.immf.com

Managing Director
FML
33 Alexander Road, Aylesbury, Buckinghamshire HP20 2NR  England
t: +44 (0) 1296 434731  f: +44 (0) 1296 422530  m: +44 (0) 7899 870023  us
cell: (212) 729 1352
www.fmlmusic.com

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