On the history of international (and Cuban) neighbouring rights

In a short article, economics scholar Rasmus Fleischer (2015) offers a concise and illuminating history of the political processes leading to the 1961 Rome Convention and the formation of neighbouring rights. The author takes us back to the 1930s and the responses of musicians and record companies to the rise of the public use of records and radio. The struggles that unfolded between musicians unions, represented by the International Labour Organisation (ILO), and record companies, represented by the International Federation of the Phonographic Industry (IFPI, formed for this purpose in 1933), had different motivations.

The first group was concerned about losing live gigs and so proposed a right to collective remuneration of musicians for the secondary use of recordings in public spaces. This public performance right, so the ILO, would offer a mechanism to finance live music. This proposal was tantamount to a taxation on mechanical music, to be redistributed to the musicians’ community by increasing job opportunities in the live sector. Since the problem was one of unemployment, the legal tool was to be created within the framework of labour legislation.

The second group was concerned about a drastic fall in record sales and blamed the rise of radio for it. The IFPI thus sought legislation that would allow it to control the broadcasting of recorded music. Under the guidance of the Italian lawyer Amadeo Giannini, the IFPI proposed giving record companies the status of authors within the copyright framework of the Berne Convention, so that record companies could control both the reproduction of sound recordings and their secondary use. The former would be an exclusive right, while the latter would entitle record companies to economic compensation for broadcasting.

World War II interrupted some of the lobbying efforts. However, Fleischer explains, the IFPI made sure it consolidated its proposal during the late 1930s and 40s. Importantly, this proposal attended to both producers and performers—a clear blow to the ILO—while offering a system of unequal rights, favouring producers over performers. When the International Federation of Musicians (FIM) formed in 1948, it was too late to have a significant influence on this hierarchical structure.

In 1949, the ILO failed to bring its proposal forward, as its charter defines it as an organisation for consensus-building. This means that it cannot proceed with a proposal without a majority of the parties concerned: governments, workers and employers. The employer side, the IFPI, had made it clear that it would not support the ILO’s proposal. Meanwhile, member states had been persuaded by IFPI that reaching an agreement involving copyright legislation was the better way, that is, in coordination with the organs of the Berne Convention. So the hierarchy of rights proposed by the IFPI prevailed in the 1951 Rome draft, ahead of which all the parties met in both Lisbon (1950) and Rome (1951), and in the eventual Rome Convention ten years later.

‘Why did the record industry win while musicians lost?’, Fleischer asks (p.342). He argues that there was a considerable difference in organisational strength: while record companies were few and well organised through IFPI, ‘musicians were a multi-faceted group, including anonymous wage-labourers in orchestras as well as freelancing soloists, […] not to mention unorganised amateurs and part-time jazz musicians’ (342). For those working in the political processes surrounding copyright, including the current European copyright reform, this sounds awfully familiar.

Last week I visited Cuba in my role as FIM’s Regional Coordinator for Latin America (yes, the same organisation formed in 1948) and learned that Cuba is not a signatory of the Rome Convention and the subsequent treaties involving performers. Therefore, Cuban copyright law does not have neighbouring rights. This is not to say that Cuban performers do not have any rights. Reminiscent of ILO’s 1930s intentions, the 1997 Resolution No.42 of the local labour legislation requires that record companies pay performers 10% of physical sales of both sound recordings and audiovisual recordings (the latter as of the 1999 Resolution No. 111). Yet Cuban performers are not remunerated over public performance of their recorded performances and, like in most countries, performers are not collectively remunerated over online performances either. These are issues that are being debated under the current process of Cuban copyright reform. How this will play out in times of ideological transition is difficult to ascertain. The only certainty here is that, as Cuba opens its market to the world, it will be absorbed by the very dynamics that laid the foundations for the 1961 Rome Convention.