Speech held at the Nordic Culture Assembly in Visby, May 16-19 2007
by Jesper Söderström, Managing Director of Swedish Authors’ Fund
The European Commission has called Swedish and Danish public lending right schemes into question. In order for you to understand this conflict of interests, I have to begin with a description of the Swedish public lending right scheme: Since 1954, Swedish literary originators have been compensated for library circulation of their books. This was a result of authors´ struggle and collective demands for compensation for public lending. The interesting and important thing is how the legislators dealt with the conflict between the desire to allow the people free use of libraries and the needs of authors to be paid for the use of their work.
In the Nordic countries we share our history and still have some similar objectives regarding State cultural policies; there is a strong belief in the idea of freedom of information and the free access to all kind of literature, and in this respect the public libraries play an important role. There is an important copyright constraint acting on these aims: according to copyright law, a copy of a literary work may be freely circulated, once it has been transferred with the consent of the copyright holder. In other words: when a library has bought a book, it also has the right to lend it.
The conflict between the two interests was resolved on the basis of the basic principle of treating the PLR as a part of the cultural legislation – and the principle that the payment is made by the government, not by the individual borrower, not by the library itself, not even by the community that runs the library – but by the government.
I think it is very important for the discussions in this matter to emphasize this “cultural policy logic”: there is a restriction in the copyright legislation justified in cultural policy; and there is also compensation, justified in cultural policy. Consequently the compensation scheme is shaped as a product of cultural policy.
In practice Swedish public lending right works as follows: in addition to individual, lending-based remuneration, a large proportion of the compensation is disbursed in the form of grants, pensions, and so on. The overall ambition is to strengthen the status of Swedish literature by improving the conditions under which its originators work, making it increasingly possible for skilled authors and other literary originators to devote themselves professionally to this work. In a language area as small as that where Swedish is in use, this is a prerequisite.
So far I have spoken exclusively about public lending right as a matter of cultural policy. And we have learned that in the European Union cultural policy is the Member States’ own business. Still I am here to talk about the fact that the European Commission has called the Swedish public lending right into question. Why has that happened?
There is an EC Directive on Rental and Lending Rights from 1992. It is now codified and has been given a new number (2006/115/EC), but the wording on public lending is the same. This directive establishes an exclusive right for the author to authorize or prohibit rental and lending of his or her work. But the Directive also makes it clear that member states may derogate from this exclusive right, provided that at least authors obtain remuneration for such lending – and that the member states shall be free to determine the remuneration taking into account their culture promotion objectives.
Upon the adoption of the Directive, the EU Commission declared that the Danish public lending right was in accordance with the requirements of the Directive. Denmark was at the time the only Nordic country that was a member of the union, but considering the similarities to the Swedish scheme, we later thought it was clear that our approach to the Public Lending Right had been accepted in the European Union.
However, in September 2002 the European Commission published a report about the extent to which the Directive had been implemented in the Member States. Their conclusion was that many countries have failed, and that it is necessary to have more far-reaching harmonization.
The European Commission does not criticize the legal status of the Swedish public lending right but they do claim that the eligibility criteria – you have to write in Swedish, translate to or from Swedish or be a permanent resident of Sweden – constitute discrimination on the basis of nationality and therefore do not comply with Article 12 of the EU Treaty.
The Swedish Government has so far rejected the Commissions view that Swedish PLR is a copyright issue and has asserted that the language criteria do not constitute discrimination, with reference to the declaration mentioned above that the Danish system was in compliance with the requirements – and with reference to the wording in the directive: the member states shall be free to determine the remuneration taking into account their culture promotion objectives.
The most recent formal step was taken in March 2005, when the Swedish government responded to the “letter of formal notice” from the Commission. The Commission has not yet reacted to Sweden’s response. There is at present nothing to indicate a new further step from the Commission. But on the other hand: they have started this process, and according to EU logic they will then complete it.
How should we interpret the Commission’s negative attitude towards Nordic Public Lending Right? Why, for instance, can the regulation of the Swedish Authors’ Fund not continue to be a Swedish matter? We can find part of the answer in the preamble to the Directive – which comments on the Member States different legislation in this field: “Such differences are sources of barriers to trade and distortion of competition which impede the achievement and proper functioning of the internal market”.
Protection of copyright works is a kind of market regulation. If you are a writer or an artist you are normally in favor of copyright – you want to be paid for the use of your work. In this matter we identify a paradox: the European Union wants to strengthen copyright protection but the Nordic authors say: no, we prefer the pragmatic culture policy approach, which seems to give the originators better funding than copyright protection and at the same time sustains another important principle: the right of libraries to lend out books and free access of the general public to information and literature via the public libraries.
The European Commission has called Swedish and Danish PLR schemes into question. The Commission’s equivalent of the EEA Agreement – The EFTA Surveillance Authority – has questioned Norway and Iceland in the same way. All these governments have opposed the criticism and continue to maintain their interpretation of the Directive. Finland, however, has accepted the Commission’s view and Finnish copyright legislation was therefore amended in January 2007 to meet the demands. The practical solution is that the system of Public Lending Right grants and subsidies they have had until now remains intact as a support scheme for Finnish authors and translators – in addition to which a new remuneration right is established in the copyright legislation.
Is it that easy? Some more money, disbursed in another way? Why, then, do the other Nordic countries persist in their view? First of all it is much more practicable in the Finnish case, secondly the question is: is this also the important matter of principle and an opportunity to define the scope of cultural policy in the European Union?
It is obvious that if the aim is to achieve a functioning internal market – as expressed in the preamble of the Directive – a great deal remains to be done in relation to public libraries. As far as I can understand this discussion of Public Lending Right regulations, it is much more than only a matter of the Nordic willingness to pay a few million extra to foreign writers as well. If the directive really is to be effective against distortion of competition, the Commission will have gained nothing at all by simply compelling Nordic countries to spread their funding amongst all writers (most of them writing in English). In the long run they will have to do away with the possibility for the Member States to derogate from the main article in the Directive. I’m neither a politician nor a writer, but if we want the public library service and Public Lending Right to be something other than part of a functioning internal market and free competition it might be necessary to follow through on this present conflict.