Proposed amendments to Albania’s Copyright Act - weakening authors’ rights protection

I am writing on behalf of CISAC, the International Confederation of Societies of Authors and Composers, to express our concerns with respect to the current state of collective management of copyright in Albania.

As the leading worldwide organisation of authors’ societies (also referred to as Collective Management Organisations, or CMOs), CISAC unites over 230 CMOs from 121 countries. Through these CMOs, CISAC represents around 4 million creators from all artistic fields including music, drama, literature, audio-visual, graphic and visual arts.

CISAC has only one member in Albania: ALBAUTOR. In addition to management of local music repertoire, ALBAUTOR has been entrusted with the protection and management of international repertoire, through numerous reciprocal agreements that it signed with similar CMOs in Europe, USA and throughout the world.

ALBAUTOR therefore fulfils an important position in Albania.It ensures the protection of rights in Albania for both local and foreign creators and helps give effect to multiple international agreements and intellectual property commitments undertaken by Albania. These include, but are not limited to, the Berne Convention.

The protection of international copyright is also an important part in Albania’s aspirations to become part of the EU and abide by the copyright standards established under EU Directives and rules.

CISAC has been closely following the copyright and collective management situation in Albania which, despite some progress, remains unsatisfactory. Regrettably, the county continues to suffer from low level of public awareness of the importance of protecting creators, as well as poor enforcement of creators’ rights.

In this context, we were recently informed about new proposals to amend the Copyright Act. These proposals, included in the Bill “On some amendments of the Law no. 35/2016 On authors rights and related rights” will not increase, but rather reduce and further weaken the protection of creator under Albanian law. We would like to draw your attention to the following provisions in the Bill:

Extended Collective Licensing

The proposed revision of Art. 135 (2) would eliminate the so-called “extended collective licensing” (“ECL”) system, which, in fact, is a very useful legal scheme, widely used in many EU countries for providing the so-called “one-stop shop” licensing solutions for users and for facilitating authors’ rights protection.

ECL schemes can serve a very important purpose. Their main purpose is to allow a duly authorised collective management organisation (“CMO”) to represent non-members. The main idea behind this approach is to provide maximum legal certainty to both rightsholders and users who exploit creative works.

Such schemes are prevalent in emerging markets and, based on our knowledge and experience, they assist many societies in Eastern Europe.

ECL schemes play a particularly important role in countries where the copyright tradition is lacking, and many users ignore or do not respect the copyright law. Put differently, if the majority of users in a particular county do not voluntarily obey legal copyright obligations, make no difference between authors’ and related rights, or challenge the mere existence of copyright, an ECL can be a meaningful and helpful solution.

ECL schemes are also useful where rightsholders lack experience in defending their rights and where there are enforcement problems or difficulties.

In Albania, the ECL scheme has been in operation, rather successfully, for over 15 years.

It is unclear to us what are the underlying policy considerations for the elimination of that scheme. It is also unclear whether any assessments have been carried out with respect to the outcome of a move to a new licensing landscape in Albania, where all rights will have to be voluntarily cleared without the ability to rely on one “one stop shop” solution for blanket licensing.

Based on our knowledge of the Albanian market, such a dramatic change of policy and the move away from the existing ECL scheme would lead to considerable confusion, significant licensing difficulties, and overall reduced remuneration to rightsholders, for no justified reason.

Split between authors and related rights

The proposed elimination of the statutory split of the shares between creators 40%/interpreters 30%/producers 30% in Art. 138, regarding the income collected by SUADA (sole umbrella collector), can result in a blockage of the royalties’ collection system.

Existing law in Albania recognises a fair split between authors’ rights (creators) and related rights (interpreters/producers). A similar split is stipulated under the laws of most European countries (the concrete ratio may vary from country to country).

The main goal of such provisions is to establish a fair balance between authors’ rights and related rights beneficiaries, and thus prevent possible conflicts or abuse.

The removal of the statutory split from Albania’s copyright law is unexplained and unclear.

Moreover, it seems that the failure of voluntary agreements concerning the split ratio between the Albanian CMOs concerned (as required under SUADA’s operational rules) may now result in the total suspension of collective management activities in the county. This harmful result must be avoided.

Administrative expenses cap

The proposed statutory cap in Art. 138 on the combined administrative expenses of SUADA and the constituting CMOs, risks undermining the operational efficiency of the CMOs.

It shall be noted that irrespective of the common service provided by SUADA, the CMOs that belong to SUADA (including ALBAUTOR) carry themselves a wide range of activities.

Such activities - including monitoring and enforcement, distributions’ calculation, membership issues, international relations and public relations with users – are essential to the rightsholders represented.

The CMOs in Albania, like in any other country, must have institutional independence and must finance all the activities they carry out independently through administrative costs.

While the level of administrate costs differs from one country to the other (and are generally lower in established markets with a long collective management tradition) they exist everywhere.

It is simply unrealistic to expect societies like ALBAUTOR to operate without administrative costs.

Conclusion

In the light of the above, we believe that the pending proposals are neither necessary nor aligned with best international practices in the collective management field.

Albania should take into account the local market’s characteristics and reality, and place the protection and enforcement of rights as a priority.

Regrettably, the proposal, if implemented, could lead to the opposite effect and result in further weakening of rightsholders’ interests.

This, in turn, could undermine Albania’s and the government’s own interests in ensuring a viable economic market in which creative businesses can develop and flourish and which aligns itself with established European standards.

We thank you in advance for your consideration of the above and for your support of creators in Albania. We remain at your disposal for any clarifications or assistance.