APPENDIX 4
Memorandum submitted by British Music
Rights
As Turkey is a key market for our members[1],
we would like to take the opportunity offered by this inquiry
to inform you of the concerns of the creative industries regarding
copyright legislation and enforcement there.
The Department of Culture, Media and Sport estimated
that creative industries generate over £60 billion of revenue
a year in the UK, contributing more than 4 per cent to gross domestic
product. The UK industry has a world market share of between 10
and 15 per cent and the value of UK music exports was last estimated
at more than £1.3 billion, twice the value of imports. Copyright
royalties make up the vast proportion of composers' and publishers'
income. The revenue collected from overseas territories directly
depends on the level of copyright protection existing in those
countries.
Turkey represents a large and rapidly growing
market for music, including British repertoire. Between 1995 and
1999, Turkey was the fastest growing music market in the world,
with the value of music sales increasing by almost 188 per cent.
In 1995 (the most recent reliable statistical year), half the
population was under the age of 24. The 15-44 age group (ie those
most likely to buy music) will grow by 2.9 million individuals
by 2005. Although the market has been traditionally dominated
by local repertoire, increasingly international music publishers
have established in Turkey in order to exploit international music,
which now takes up over 20 per cent of sales.
BARRIERS TO
THE MAXIMISATION
OF THE
TURKISH MARKET
Our industry is not faced with a problem of
market access in Turkey. Our publisher members can enter the Turkish
market quite successfully by appointing a sub-publisher based
in Turkey to represent their works there. For many publishers,
this involves the appointment of a subsidiary or related company;
for others it involves the appointment of an independent sub-publisher.
Considering the growing success of British repertoire in this
territory, the main issue for us remains whether we are getting
the full value out of that market in terms of remuneration for
our authors.
Our industry is faced with a problem of piracy.
The potential market value for British composers, songwriters
and publishers in the enlarged Turkish market is growing but so
is the effect of piracy on their expected income. Creators can
only benefit from the growing value of the market if adequate
copyright protection mechanisms (legislation and enforcement)
are in place. As a condition for accession to European Union,
Turkey will have to endorse the acquis communautaire in
terms of copyright legislation but we need to monitor this carefully
and ensure there is a proper level of enforcement of intellectual
property rights.
We would like the Trade and Industry Committee
to ask the Turkish Government whether they believe that adequate
mechanisms are in place to protect copyright.
— Is Turkish substantive law appropriate?
Will it meet the challenges created by the growth of on-line distribution
of music?
— Is there an appropriate level of
enforcement in place to fight piracy? Will it be sufficient to
fight on-line piracy?
1. SUBSTANTIVE
LAW
The Turkish Parliament is currently considering
a bill amending their 1995 copyright law in order to make it compliant
with international conventions. Whilst we welcome this initiative,
we are concerned that some of the provisions of the bill fall
short of the European and international convention standards and
will affect the ability of our industry to succeed in the Turkish
market.
We are particularly concerned by the following
changes:
1.1 Private copying
Turkey probably intended to follow French and
German legislation when it decided to put in place a levy scheme
on blank media, such as cassette, video and CD, for private copying.
The UK creative industries have never been in support of such
an approach. Though we believe that levy schemes are acceptable
for copying on traditional media (ie cassette tapes), the only
way for rights owners to be compensated properly for the use of
their work in the on-line environment is through an exclusive
right to license for on-line distribution of music. Levy schemes
remove the creator's control over the use and the price of his
work.
To the extent that we support levy schemes,
we believe that the only justification for such schemes is that
they adequately compensate the author. The draft proposal provides
for a 3 per cent levy on blank media but instead of going to the
authors whose works have been copied, the money will be used by
the Ministry of Culture to subsidise projects of a cultural and
social nature. The proposal, in our view, therefore defeats the
purpose of a private levy as it does not provide for any compensation
to the rights owners whose works have been copied. This principle
is contrary to the spirit of the provisions on private copying
in the European proposed Copyright Directive.
The Trade and Industry Committee could ask the
Turkish Government whether they are aware that the draft proposal
may not comply with the proposed Copyright Directive and ask them
whether they will ensure that the levy scheme does not inhibit
the rights owner from controlling on-line distribution of his
music once licensing schemes are in place.
1.2 Performing right
The draft proposal provides for the deletion
of the exclusive right to authorise the communication to the public
of the performances of works by loudspeakers or other similar
devices. This move will allow restaurants and other commercial
premises to play music without the authorisation of, and payment
to, rights holders. In Europe, restaurants and retailers need
to get a licence from the collecting societies managing the authors'
performing rights (the Performing Right Society in the UK) in
order to play music in their premises. The monies collected by
the collecting societies are then redistributed to the authors.
This is common practice and failing to provide for these rights
is contrary to international copyright conventions. The European
Commission brought a case against the US at the WTO level on the
ground that the US Fairness in Musical Licensing Act 1998, which
provides for an exception similar to the one in the Turkish draft
proposal, was contrary to Article 11 and 11bis of the Berne Convention
and Article 9 of TRIPS. In its June decision, the WTO Panel ruled
in favour of the European Commission.
The Trade and Industry Committee could ask the
Turkish Government whether they are aware that the current proposal
is most likely to be in breach of the TRIPS Agreement.
2. ENFORCEMENT
AND AWARENESS
We know from experience that substantive law
alone is not sufficient to fight piracy and that effective copyright
enforcement mechanisms are needed to stem the tide. The high piracy
level shows that Turkey does not meet the European standards in
terms of enforcement procedures.
The 1999 level of piracy of the international
repertoire is estimated to be 40 per cent, while the overall piracy
level, including local repertoire, is 30 per cent. There is a
lack of expertise on intellectual property rights both at the
prosecution and judiciary level. Criminal proceedings are lengthy
and almost never lead to a jail sentence. [2]
We regret that the lack of proper enforcement
of copyright hinders the commercial relationship of British creative
industries with Turkey and believe that adequate enforcement mechanisms
and awareness of the value of IPRs are vital in order to ensure
that our income reflects the level of the market.
We were pleased to see that the recent proposal
includes some measures to help the fight against piracy. These
measures include: seizures at borders, training on intellectual
property law, fast proceedings for injunctive relief, increase
of the penalties in cases of copyright infringement. We hope that
the Turkish Government will have the resources to apply these
provisions and that it will lead to an improvement of the current
situation.
The Trade and Industry Committee could ask the
Turkish Government how they will ensure that the new law is properly
enforced and whether the Government has sufficient resources to
apply the new enforcement measures.
Since the law is currently being reviewed, we
believe that it is appropriate to raise the importance of the
piracy issue with Turkish officials and to suggest that legislative
measures be accompanied by a campaign of awareness of intellectual
property rights, citing the Creative Industries Intellectual Property
Group report as an example, a copy of which is enclosed for your
interest.
The Trade and Industry Committee could ask what
the Turkish Government is doing to raise copyright awareness.
3 October 2000
1 British Music Rights' members are the Music Publishers
Association, the British Academy of Composers and Songwriters,
the Mechanical-Copyright Protection Society (MCPS) and the Performing
Right Society (PRS). Back
2
Source: International Intellectual Property Alliance, 2000 report. Back
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