Diversity in online music: a European Union debate on cultural diversity and the collective management of authors’ rights
For more than a century, the collective management of authors’ rights has greatly facilitated the licensing of music to the benefits of right holders and commercial users alike. In the online realm, however, the rationale of the collective administration of copyright has been challenged and its functioning re-configured. At a moment in time where the Internet has made the cross-border distribution of recorded music easier than ever, right holders are yet to find licensing solutions appropriate for multi- territorial online uses. This, in turn, slows down the uptake of legal online music services and prevents the realisation of the Digital Single Market, pursued within the EU. The European Commission has intervened twice, first in 2005 in the form of a non-binding Recommendation, and later in 2008, when it held that the collecting societies’ practice of restricting their activities to their respective domestic territory was anti-competitive. Arguably, the contradictory effects of EU action have exacerbated rather than remedied the existing difficulties that cross-border online music services face in clearing the necessary authors’ rights. This thesis proposes to re-contextualise this problem around cultural diversity, which is a recurring buzzword in the ongoing debates and which EU institutions are legally obliged to promote and to respect. Despite this seeming acknowledgment of the concept, no sound legal analysis of its scope or its implications for the field of online music has yet been proposed. Pursuing such analysis, this thesis first examines the meaning of cultural diversity under EU law to submit an understanding of it as intercultural pluralism. It then assesses the boundaries of the EU obligation to promote cultural diversity in view of the goals of the UNESCO Convention on the Promotion and Protection of the Diversity of Cultural Expressions. An analysis of the relationship between the two sets of norms suggests interpreting the EU mandate of promoting cultural diversity in light of the scope of the international obligations wherever EU action affects cultural creations. Applied to the context of online music, this novel interpretation implies that cultural diversity is promoted if all groups within the EU (a) have the ability to express their cultural identity through online music; and (b) are in a position to access online music expressing different cultures from within and outside the EU. Cultural diversity thus calls for the licensing regime to be reorganised so that online music services may, in a simple and effective way, clear the rights necessary for the online use of the entire available EU repertoire as well as a diverse foreign and, ideally, the entire worldwide repertoire. Finally, this thesis assesses the current online licensing mechanisms in a practical application of these findings, testing the commonly raised argument that collective rights management promotes cultural diversity and investigating, in parallel, whether the practical consequences of the EU interventions have promoted the diversity of online music.