IMRO

Culture and the Music Business within the European Union

INTRODUCTION

Copyright owners and music organisations throughout Europe are becoming increasingly interested in the moves towards closer integration of the Member States of the European Union. With the signing of the European Union Treaty in 1992, shrewd EU observers in the music business identified the possible benefits to their businesses if, and when, support programmes were introduced by the European Commission (EC) to stimulate or support music originating within the Union. An integral part of such a programme would have to be a continuation by the Commission of the protection and improvement of intellectual property rights.

This article reviews the approach taken by the European Union to cultural matters, reviews the EC’s policy in support of the audiovisual industry and describes how such an approach might well be applied to the music industry.

CULTURE AND COPYRIGHT

Copyright for many is considered an area of economic activity where rights are traded in the marketplace and is an area dominated by lawyers and accountants with creators simply providing the underlying input.

The European Union, however, has always taken the view that there are both economic and cultural aspects to copyright, the former relating to the author’s right to derive a financial advantage from the economic exploitation of his work and the latter relating to the fact that they promote intellectual and artistic creation.

The European Community’s work in this field began with the adoption in 1988 of a green paper on copyright and technological challenges (which was essentially an economic analysis) and continued with the adoption, in 1990, of a working plan in which the Commission defined a new approach incorporating the dual cultural and economic nature of copyright. This new approach emphasised in particular that any harmonisation of copyright and related rights must take place on the basis of an increased level of protection, owing to the fact that they are essential to cultural creativity and the fact that their protection makes it possible to guarantee maintenance and development of creativity in the interests of authors, the cultural industries, consumers and the Community as a whole. The Community, in effect, tended to strengthen copyright protection and other rights.

THE EUROPEAN UNION TREATY

In the preamble to the Treaty on European Union, signed at Maastricht on 7th February 1992, the contracting parties expressed their resolve "to mark a new stage in the process of European integration undertaken with the establishment of the European Communities ... creating an ever closer union among the peoples of Europe ...".

This expressed wish to associate the peoples of Europe more closely with the process of European integration is reflected in particular in the creation of European citizenship ("citizenship of the Union is hereby established") and in the explicit inclusion of new areas within the jurisdiction of the Community (education, youth, culture, public health, consumer protection etc.).

In relation to culture, the following changes were introduced by the Treaty on the European Union:

• Article 3 EC (P), which includes as one of the objectives of the Community action "a contribution to education and training equality and to the flowering of the cultures of the Member States"
• Article 92, Section 3(d), which stipulates the following, may be regarded as compatible with the common market: "aid to promote culture and heritage conservation , where such aid does not affect trading conditions and competition in the Community to an extent that it is contrary to the common interest"
• Title IX, Article 128, which provides a specific basis for the accomplishment of encouragement actions intended, while respecting national and regional diversity and, at the same time, bringing the common cultural heritage to the fore, to support and supplement actions in Member States in the areas specified.

The establishment by the Treaty on European Union of a legal basis specific to culture signifies that Community action with regard to culture will henceforth be of a permanent nature and become an acknowledged branch of Community activity.

ARTICLE 128

Article 128 of the Treaty of the European Union was studied in depth within the context of the Commission’s communication to the European Parliament and to the Council of the European Union (COM [94] 356, of 27th July 1994): "European Community Action to Promote Culture" . This communication served as a framework for the Commission’s adoption of three action programmes "Kaleidoscope", devoted to artistic and cultural activities, "Ariane", devoted to books and reading, and "Raphael", devoted to cultural heritage.

Article 128, paragraph 4, stipulates that "The Community shall take cultural aspects into account in its action under other provisions of this Treaty." In effect, this provision gives expression to the European Community’s obligation to consider the cultural objective in all aspects of its activity. Article 128, paragraph 4, makes this consideration of ‘cultural aspects’ a requirement, which is all the more important given that such aspects remain very largely within the jurisdiction of the Member States, the latter being fully entitled to define their objectives and policies on this subject.

An examination of the way in which the various Community policies and texts have taken or take cultural aspects into account naturally depends on how culture is defined. In point of fact, the concept of culture is a nebulous one, which can vary from one school of thought to another, from one society to another and from one era to another. It may include the fine arts, literature etc., but may also include all types of knowledge and features which characterise a society and make it possible to understand the world. In this regard, the European Commission has taken into account the definition of culture, formulated at UNESCO’s world conference on cultural policies: "Culture consists of all distinctive spiritual and material intellectual and emotional features, which characterise a society or social group (Mexico 1982)."

THE MEDIA PROGRAMMES

Such distinctive spiritual and material intellectual and emotional features invariably are brought to the public’s attention via the so called cultural industries and, in recognition of this, the European Union developed a policy in relation to the audiovisual industry with two basic objectives:-

• Setting up and ensuring the functioning of a genuine European area for audiovisual services;
• Implementing a strategy to enforce the European programme industry.

These two objectives, linked to the development of the market and to industrial policy, are being pursued by taking full account of the cultural dimension of the audiovisual sector.

The "Television Without Frontiers" Directive adopted by the Council in 1989 is the cornerstone of the regulatory framework for the European area in respect of audiovisual services. Its principal objective is to permit the free circulation of television broadcasts in the European Union, and thereby encourage the development of transnational services. It is based on Articles 57(2) and 66 of the EC Treaty.

Although the first objective of the policy was the establishment of regulatory aspects, the second and, from a cultural point of view, more important objective was the support actions reinforcing the European programme industry.

Although strong in terms of the wealth and diversity of its heritage, the European cinematographic and televisual programme industry has revealed its structural weaknesses in the face of the increase in competition on international markets. The strengthening of this industry and the desire to make it more competitive have, from the outset, been a fundamental objective of Community policy.

Beyond the industrial dimension of this objective, there is clearly a strong cultural dimension. Cinematograph and televisual programmes are goods unlike any other: as privileged vectors of cultural, they retain their specific nature amid the new types of audiovisual product, which are currently multiplying; as living witnesses of the traditions and of the identity of each country, they merit encouragement; only a strong European industry will be able to guarantee both the diversity of programmes and an increase in the international influence of European cultures. The European Community feels that, given the image of our society, much is at stake in cultural terms.

Over the years, this diagnosis has been refined and Community support instruments have been developed. The principal support instruments, namely the MEDIA Programmes and the Action Plan for the Advanced Television in Europe, both based on Article 235 EC, effectively supplement efforts made at national levels. Given that their principal objective is to promote the development of the programme industry, MEDIA II and the guarantee fund of several hundred million ECU are based on Article 132 (Industry) of the EC Treaty. These instruments, just like the action plan, take full account of the cultural aspects of the industrial sector they intend to promote, as is the intention of Article 128, paragraph 4.

Moreover, under the terms of the "European Audiovisual Dimension", the support given to prices and festivals traditionally makes it possible to provide financial support for audiovisual festivals, particularly cinema, by programming quality European works at a time when commercial cinemas are putting on essentially American films. This action, developed since 1992, has a threefold objective, which is not without importance from the cultural standpoint:

• It enables European works to be promoted;
• It favours their circulation and their distribution (whereas, in the case of each Member State, only a very small part of nationally produced films is the subject of programming in other Member States);
• It facilitates mutual awareness of national film industries thereby contributing to the enrichment of cultural exchanges.

Through the phased Community initiatives developed under the terms of audiovisual policy, the European Union makes an undeniable contribution to maintaining and expanding the influence of European cultures while respecting their diversity. The industrial and market logic underlining this action in accordance with the rules of the Treaty have not prevented consideration of the dual (economic and cultural) nature of the audiovisual sector. On the contrary, the cultural dimension of this policy tends to be reinforced within the framework of new initiatives. Thus, the Commission is taking care, in particular, to exploit the various synergies which are emerging between cultural action and audiovisual policy to promote multimedia development.

TOWARDS A MUSIC POLICY

As part of the plan to formulate an overall cultural policy, the European Commission approached various representatives from the European music industry. Proposals were sought from that industry on how the policy, as applying to the audiovisual sector, might be extended to music.

In 1995, the European Music Office (EMO), based in Brussels, was formed. The EMO was founded by representatives of music organisations, including authors’ societies, independent record producers, artists and band management. It had as its principal objective the creation an entity to provide advice and guidance to the European institutions in relation to European music, to establish the importance of the European music industry as a true cultural industry and to promote European music by way of institutional support for all aspects of European music, including European music creation, production and performance.

The European Commission appointed the EMO to conduct and present to it an objective analysis of the state of the European music industry. This report "Music in Europe" was presented to a meeting of representatives of the Member States at a seminar held in Ennis in Ireland in October 1996 under the Irish Presidency of the European Union.

This meeting was followed by a similar seminar, convened under the aegis of the Luxembourg Presidency of the European Union, in September 1997. Draft proposals for a music programme in Europe were completed by that meeting and presented to the meeting of the Council of Ministers dealing with cultural matters in Luxembourg in November 1997. The conclusions of that meeting were published in the Official Journal of the European Communities on 3rd January 1998 (98/C 1/04).

The Council of Ministers welcomed the study "Music in Europe" produced by the European Music Office, offering, for the first time, a comprehensive approach, at European level, to all the sectors involved in the music creation cycle and expressed its determination to promote the European music sector, in particular by encouraging the emergence of an environment conducive to the circulation, exchange and dissemination of repertoires, performances and artists in Europe and in the world, and agreed on the need to consider, in more detail, in the context of Article 128 of the Treaty establishing the European Community and in compliance with the subsidiarity principle, the work done in the Union together with the relevant authorities of Member States and with professionals to deepen knowledge of the needs of the European music sector in all its facets.

The Council of Ministers invited the Commission "to submit to it, in the framework of the Council Decision of 22 September 1997 regarding the future of European cultural action, proposals for the music sector designed to supplement the action of Member States by measures in particular in the following fields:

• improved access to music for a wider public, with particular attention being given to musical education from a very young age, by supporting innovative and exemplary projects highlighting the essential, integrating role of music in society,
• disseminating and composing music, promoting exchanges, especially of young creative and performing artists, and supporting the circulation of repertoires, performers and musical productions (live performances),
• enhanced skills for artists and other music professionals, especially in the framework of the new possibilities afforded to musical creation by the new information technologies, and vocational guidance in the music sector,
• the possibility, within the existing structures and within the limits of available financial resources, of improving the mutual information of the Member States on musical knowledge through, for example, a strengthening of existing networks, or by creating a monitoring centre or a European information and documentation centre."

CONCLUSION

The EMO is now collaborating with the European Commission in the process of defining a music programme for Europe in the context of an overall cultural policy.

As a first step, the European Commission has invited tenders for the establishment of a European Music Observatory, the principal functions of which will be to gather national annual reports of each sector of activity of the music industry throughout Europe and publish a general annual report of these activities. It will establish quarterly European record sales charts, a chart of air play and details of concert ticket sales. It will also produce an analysis, with the assistance of such charts, of the flow of the national and regional repertoires within the European Union.

In addition to this, it will observe and monitor the main obstacles to the development of these activities, including the difficulties arising as a result of the absence of harmonisation of intellectual property, and it will implement specific studies at the request of the Commission, The Member States, the European Parliament and the industry.

Finally, the Music Observatory will assess and analyse the various problems created by fiscal, social and administrative policies of the Member States.

The music industry has a greater turnover than both the cinema and video industries in Europe. In 1995, the music industry had an estimated turnover of 18.8 billion ECU and provided employment for over 600,000 people. Approximately half of these jobs were part-time and young people account for a high proportion of those working in the industry. Those involved in the European music industry are greatly encouraged by the tangible, positive results achieved by the various MEDIA programmes and they look forward to similar results being achieved in the music sector by the hoped for introduction of a similar programme for music.

© Eamon Shackleton, Barrister, MBA, Director of Services, Irish Music Rights Organisation (IMRO) and Vice President of European Music Office (EMO) 1998