Memo from European neighbouring rights societies to SoundExchange: If the USA joins the Rome Convention money will flow

By Emmanuel Legrand

European neighbouring rights societies were pondering their response to SoundExchange's latest campaign asking for “national treatment” for US performers and labels in the collections of neighbouring rights overseas, but it is quite likely that the position most societies will adopt will be: Join the Rome Convention, adopt performance rights for sound recordings played by terrestrial radio (equitable remuneration), and money will flow back to US rights holders.

  At the moment, according to SoundExchange, US artistes and labels are victims of “discrimination” since they cannot received the proceeds of equitable remuneration in countries like the UK, France, Italy or Germany. In a campaign initiated two weeks ago, SoundExchange and a coalition of music-related organisations representing labels and performers have been asking the US government to make it an agenda item in the trade negotiations with other countries or regions.

  Earlier this year, SoundExchange referred several countries, including Japan, the UK, France and others to the US Trade Representative to have them included in the Special 301 Report, identifying the countries with which the USA has IP issues. Around that time, SoundExchange sent letters to neighbouring rights societies named in the USTR list, pointing out that the system in place in these countries was penalising American creators by allowing their works to be used without compensation.

Apply reciprocity

  European societies contacted by this writer have declined to comment on SoundExchange's latest campaign. It is understood that several European societies have been discussing about a common position without so far issuing any joint statement.

  Speaking off the record in order to speak candidly, several European executives said that the treatment reserved to US rights holders was not related to discriminatory practices but boiled down to the fact that the United States are still not signatory to the Rome convention, and although they are part to WIPO's WPPT treaty, they only grant the benefits of equitable remuneration to performers and producers of phonograms for the use of music on non-interactive digital services. As a result, terrestrial radio in the US still does not pay performance rights on recordings.

  Executives noted that US performers can benefit in full from equitable remuneration in Europe if their recordings have been fixed in a country signatory to the Rome Convention. What defines the current system, said an executive, is the concept of reciprocity. Since the US do not have performance rights for the use of recordings on terrestrial radio, there is no reason these rights should apply to US rights holders outside of the US.

Fighting the wrong battle

  "American artists are not denied rights because of their nationality,” said one executive from a continental European society, “but this is unfortunately the case for all artists, regardless of their nationality, who have recorded with producer members from countries that have not ratified the Rome Convention, and that includes the United States.”

  The executive continued: “Furthermore, European artists are denied their rights to equitable remuneration in the United States on analogue radio broadcasts while they enjoy these rights in their countries of origin, which constitutes discrimination which is only due to the refusal of the United States to ratify without reservation the international conventions which recognise the neighboring rights of performers.”

  Another executive from another European country said it was not the first time Sound Exchange publicly challenged European collective management organisations (CMO). “Just like the first time, we are not amused this time either,” said the executive, claiming that Sound Exchange and unions representing artists and musicians such the American Federation of Musicians (AFM) and SAG-AFTRA, are “fighting the wrong battle.”

A two-sided story

  “Their fight should not be with the European societies, but with their own government,” the executive added. Regarding equitable remuneration for broadcasting and public performance, the executive argued that “the legal basis is the Rome Convention, to which the US is still not a party. The problem is as simple as that. You cannot ask for national treatment within the context of a treaty if your country has not signed the treaty.”

  The executive said that the easiest way to give US labels and performers access to the European equitable remuneration for broadcasting and public performance "is to convince the US government to sign the Rome Convention, which is nothing more than an old but still very current free trade agreement. This would then allow the European CMO’s to extend their licenses to US repertoire and – with the help of the US performers – negotiate new and better tariffs for the use of music.”

  The executive concluded: “It’s a two-sided story. We’ll get there in the end.”