PUBCD07-1264 CISAC/ICMP/IMPA Working Groups Montreal, 13/11/2007-15/11/2007 Source language: English 06/12/2007 Minutes : Counterclaims and Disputes WG meeting (Montreal, 15/11/2007) Anders ZETTERLUND (STIM) Status: Counterclaims and Disputes working group (Brussels, 11/06/2008 - 12/06/2008) (PUBCD08-2698) Date: 11/06/2008 1/8 Minutes : Counterclaims and Disputes WG meeting (Montreal, 15/11/2007) Present: Fabio Geovane, ABRAMUS [email protected] Mairy Beam, ASCAP [email protected] Michael Tortora, BMI [email protected] Warren Adler, Harry Fox Agency [email protected] Alan Balchin, MCPS-PRS [email protected] Bart De Bock, SABAM [email protected] Oliver le Covec, SACEM [email protected] Christine Tarquinio, SESAC [email protected] Sheila Tozak, SOCAN [email protected] Guylaine Theroux, SODRAC [email protected] Joël Martin, SODRAC [email protected] Jean-Philippe Prince, SODRAC [email protected] Brigitte Küng, SUISA [email protected] Anders Zetterlund, Stim (chair) [email protected] Gustavo Gonzalez, UBC [email protected] Sylvain Piat, CISAC [email protected] Ron Porter, CMRRA [email protected] Audrey J Ashby, EMI [email protected] Ron Cabiltes, EMI [email protected] Richard Thompson, Kobalt/ICMP [email protected] Kevin O’Byrne, Sony/ATV [email protected] Sabine Sachar, Sony/ATV [email protected] Dee Hale, Sony/ATV [email protected] Mike Donegan, Universal [email protected] Fred Buhrs, Universal [email protected] Jeremy Blietz, WCM (co-chair) [email protected] Bobby Robertson, WCM [email protected] ••••• Action items from this meeting # What Who When 1 Letter of recommendation for big societies JB, SC (KOB) January (send to AZ and SP) 2 Communication to these societies AZ, SP February (“good example”) 3 Questionnaire to all societies AZ, SP March 1 - Opening of the meeting and miscellaneous announcements Jeremy Blietz acted as co-chair in this meeting. 2 - Approval of the report of the previous meeting The minutes were approved, with an addition under item 5 AOB regarding primacy to local publisher registrations over fiches. A pdf file of a letter from Eric Baptiste (Secretary General of CISAC) dated 14 March 2000 is included as an enclosure to today’s minutes. PUBCD07-1264 2/8 Minutes : Counterclaims and Disputes WG meeting (Montreal, 15/11/2007) 3 - Action items from last meeting A) IMPA has produced a document, expanding on the six prioritised items for harmonisation (see appendix 1 and item 3) B) The CSB has approved of a new questionnaire (see item 3) C) The statistics on number of disputes has been expanded (see appendix 2) 4 - Further discussions A more detailed explanation of IMPA’s list of priorities for harmonisation of rules was presented, further clarified by “the lifespan of a dispute” (see appendix 3). Some additional clarifications: Regarding the procedure of relinquishing a claim, IMPA suggest that if Claimant A can produce a document from Claimant B that they will relinquish or reduce their claim this should be regarded as sufficient information even if Claimant B or its local representative has not yet communicated this itself to the society. When a Claimant has not replied within 90 days, IMPA suggest that both/all Claimants be informed that the society is going to delete one claim on behalf of the other/s. When studying the result of the first CISAC survey one could see that the societies’ answers on policies and routines vary very much. Some of the biggest societies had similar policies though. Before issuing the new survey (with questions on the six prioritized items) IMPA would like to send a letter of recommendation to a number of “big” societies asking them to adopt the recommended new policies as a “good example” for others to follow. The societies are: APRA, ASCAP, BMI, BUMA/STEMRA, GEMA, JASRAC, MCPS/PRS, SACEM, SAMRO, SGAE, SIAE and SOCAN. JB and SC (with help from KOB) will write the letter of recommendation, and AZ and SP will forward the letter to the societies mentioned. Upon confirmation, the questionnaire to all societies will follow suit. All present agreed that there will be different work flows for domestic and international repertoire – something which was also evident from the survey presented at last (May) meeting. The task of creating business rules and work flows will be part of the Counterclaim group’s next goals. Conflicting information between original publisher’s society and sub-publisher (e.g. mechanical share collectable) is also something that requires a separate procedure. 5 - Dates and venue of the next meeting Perhaps the week starting June 9, in Eastern Europe – SP will investigate and return ASAP. PUBCD07-1264 3/8 Minutes : Counterclaims and Disputes WG meeting (Montreal, 15/11/2007) Appendix 1 Expanded list of priorities i) Common approach to suspension of royalties - the societies asked how they should handle royalties incorrectly paid to an original claimant while waiting for supporting docs from a second claimant. IMPA response - if the counterclaim is eventually resolved in favour of the second claimant, the societies should debit the original claimant and account to the second claimant; we believe they are best placed to handle the adjustments. (ii) Ability for societies to suspend part shares - the societies welcomed this principle. However, there are times when it is not easy to determine part shares not in conflict and the societies asked if we could clarify the various scenarios of part shares and how they should handle them. IMPA response - our thinking is to keep the process simple. If there's clearly a non-conflicted part share, then this should be paid through in the normal way. However, if it is not easy to determine what the 'clear' part shares are, after societies have consulted the publishers involved, then all income on a work should be suspended. For example - imagine a Bacharach/David work sampled into a new work, where the new work features lyrics from two new writers (and those two new writers are represented by rival publishers). If the new registrations point to the Bacharach/David element being 50% of the new work and the contention is in the splits due to new writer 1 and 2, then the Bacharach/David 50% element in the new work is not contentious and should be paid out. (iii) Samples and infringements - the societies asked how they should handle accountings on sampled and infringed works. IMPA response - should the total claim on any sampled work exceed 100%, then all monies should be suspended by societies. However, if the total claims are 100% or less, then accountings should be made. Societies should suspend all income on any work notified as an infringement. From a licensing perspective; we would want societies to continue licensing and collecting income on sample disputed works, but to refrain from licensing infringed works. (iv) Supporting documentation is required of the second claimant first then the original claimant, should the second (counter) claimant respond - the societies asked if IMPA could expand on this statement. IMPA response - the counterclaims flowchart should provide further clarification. If not, perhaps specific questions or concerns could be raised and answered during the Montreal meeting. (v) Applying a standard lead time of 90 days for the supply of documentation rather than 60 days plus a further 30 days upon request. IMPA response - this was agreed in principle at the meeting and I have updated the attached document accordingly. (vi) Societies to make value judgement on supporting documentation - societies asked if IMPA could clarify where the society review of documentation starts and stops. PUBCD07-1264 4/8 Minutes : Counterclaims and Disputes WG meeting (Montreal, 15/11/2007) IMPA response - IMPA proposes societies only check the following pre-requisite information in any supporting documentation; (i) term dates (ii) territory (iii) specific works/limitation of repertoire (iv) documents are signed and dated by all interested parties. (vii) Work flow diagram for a dispute - societies asked if IMPA would provide one. IMPA response - it is hoped the clarification above and the detailed work flow diagram produced a couple of years ago will suffice and there shouldn't be any need to provide another flow chart. (viii) Expand the 6 priority point list - to clarify questions raised by the societies. IMPA response - it is hoped the responses above provide enough clarification in advance of the Montreal meeting. Once the societies have provided their comments on what they can embrace and by when, we can then document for all concerned. Finally, an input from Kevin O’Byrne: "in the absence of any conflicting contractual paperwork of any kind, a contract signed by party X must be honoured by party X and in a prompt fashion" PUBCD07-1264 5/8 Minutes : Counterclaims and Disputes WG meeting (Montreal, 15/11/2007) Appendix 2 Statistics on works in dispute, i.e. monies are being held in suspense on parts of, or the whole work Society Domestic works International works Total monies in suspense Gema 776 338 The Alliance 2960 5340 (and 600 mixed) 3542 67878 € 4,756,000 Stim/NCB PUBCD07-1264 6/8 Minutes : Counterclaims and Disputes WG meeting (Montreal, 15/11/2007) Appendix 3 Work flow – the lifespan of a counterclaim/dispute 1. Existing work: WALK ON BY C1 Burt Bacharach 25% perf A2 Hal David 25% perf E1 Bacharach Music E2 David Songs SE1 EMI Music 25% perf 50% mech SE2 Kobalt Music 25% perf 50% mech 2. A new claim for Burt’s share of the work: WALK ON BY C1 Burt Bacharach 25% perf A2 Hal David E1 Bacharach Music SE1 Universal Music 25% perf 50% mech 3.