Already during the consultation process, ProLitteris considered the amendments to the law to be feasible:
First, the Swiss draft makes use of tried-and-tested collective management: tariff procedures and distribution systems of the collective management organizations. No prohibition of use, no individual licenses.
Second, the subject of the royalties is defined in a way that can be delimited: snippets from media content. Hyperlinks that do not contain parts of journalistic publications are not subject to royalties.
Third, the calculation of the royalties is feasible. For collection, the primary factor is the expenditure for journalism or the revenue of the online services. For distribution, the primary factor is the expenditure and the contribution to information of the media company.
Fourth, the royalties go to media companies and media professionals. The consideration of authors and publishing houses corresponds to the «Online distribution» of ProLitteris: the successful principle is 50:50.
The question of introducing a new right to remuneration is a political one. As a service provider for licenses in copyright, we share the professional assessment that the Federal Council has designed the best possible solution.
The tariff procedure is a pillar of the Swiss copyright system. It has already proved its worth several times for different technologies and types of use.
Tariffs for statutory royalties have several advantages:
- Evidence: The collective management organizations must provide information on usage behavior and calculations. Users are obliged to provide information and to cooperate.
- Legal certainty: Once a tariff is in place, compliance with intellectual property is ensured. Trade secrets remain protected.
- Transparency: The tariffs are published, the reasons for approval by the Arbitration Commission are known, and their application is rule-based.
- Uniformity: Equal treatment is required. Assumptions and estimates can help if concrete data are lacking or information is refused.
- Supervision and possibility of appeal: The Swiss Federal Institute of Intellectual Property supervises management. Tariffs can be challenged in court.
- Efficiency and effectiveness: Collective management organizations operate economically, and their costs are borne as a deduction by the rights holders.
The collective management organizations pool their rights in Common Tariffs (CTs) so that there is only one invoice per type of use. For related rights, it is conceivable that the mandate lies with a single collective management organization from the outset.
Related rights for media may become a Common Tariff 15 (CT 15). Its predecessors, CT 1 to 14, have already proved their worth over years or decades. The rules and efficiency of distribution to rights holders are also tried and tested and documented.
Specific experience that can be used here:
- Negotiations with large companies: Collective management organizations represent the rights for retransmission in telecommunications networks and for time-shifted radio and television vis-à-vis internationally active corporations such as Swisscom and Sunrise.
- Customer service and data collection: The collective management organizations already successfully manage copying royalties from schools, companies, and public administrations, background music, online uses, and many more rights.
- Collection and distribution: Collective management organizations coordinate the flow of funds with all parties involved and ensure seamless distribution without profit. Two federal authorities exercise supervision: the Federal Arbitration Commission for the Management of Copyright and Related Rights and the Swiss Federal Institute of Intellectual Property.
- Technology and uses: If a use is low or declining, the problem resolves itself because the tariffs take account of volumes and economic values. Renting in video stores is approaching zero – the corresponding tariff (CT 5 video stores) is therefore less relevant and unproblematic.
The National Council’s Committee for Transport and Telecommunications (KVF-N) is currently dealing with the planned amendment to the law.
Related rights for media: Federal Council adopts dispatch on amendment of the Copyright Act