Sophie Goossens: “The Continent and the UK follow two different legal traditions”
Sophie Goossens is an information technology, intellectual property and commercial lawyer, and Attorney-At-Law at August Debouzy. She is also as a regular speaker and guest at our Music 4.5 seminars. We’re thrilled she’ll be chairing our Music 4.5: The Politics of Licensing seminar in London on 27 September and we sat down with her to talk about her amazing career, her view on the future of licensing, safe harbour and other reform projects, and get her unique view on the licensing landscape across Europe.
-Sophie, thanks for taking the time to talk with us today. Can you tell us a bit about your professional story, particularly how it pertains to our upcoming seminar about the politics of licensing?
I started my career in France, as in-house business affairs to several media companies, including two record companies. I realized fairly quickly that all the “fun” deals I had the chance to work on were mainly coming from the UK or the US. So, a few years in, I decided to transition to private practice with the idea that it would allow me to work on more “fun” deals and focus on an international client base.
I qualified as a barrister in 2010 and after two years of doing mainly litigation in the field of music and other IP-based content, I decided to explore other jurisdictions. I spent a few months in NYC before ending up in London where I’ve been living for the past three years, going back and forth between London, Paris and Brussels, my hometown.
This constant travelling between two different legal and business cultures is very rich and full of learnings. As you may know, the continent and the UK follow two different legal traditions: the UK is governed by a common law system where mainland Europe’s system is based on civil law. This distinction remains quite significant and a constant source of fascination for me, especially when the same solutions are derived from sometimes very different legal reasoning.
For example, the UK legal system recently introduced a copyright exception for parody, and more recently, the debate surrounding the private copy exception/compensation was quite interesting to follow, given that both mechanisms have been established in mainland Europe for more than 30 years now.
In this context, it felt only normal to add European law to my practice, especially in the field of copyright, which I now navigate on a daily basis. For a legal (and slightly geeky) mind interested in understanding the people of Europe, I don’t think there is any better place to sit. Comparing and learning from the legal reasoning of 28 member states in the field of copyright is a formidable source of knowledge and it provides a good understanding of the challenges lying ahead of us, especially when the Commission is announcing a long-term plan to harmonize European copyright.
Today, I advise the media industry in relation to both civil law and European law issues, but also about European policy-making. I also advise, investors and VCs, who need a prospective view on what the media landscape might look like in a few years time.
-Licensing for music is – some might say – beset with problems. What in your view are the most pressing issues around licensing at the moment? What should be changed or altered first?
Companies relying on third party music rights for their core business, such as Spotify, Pandora, Soundcloud or Deezer can’t seem to turn a profit, which does beg the question about the price point of these licenses, and their sustainability.
A shrinking number of stakeholders (amongst whom even fewer Europeans) have been able to access these licenses whilst many others are tempted to use technological workarounds, such as safe harbor.
There is no room for experimentation. Music start-ups who need to acquire third party music rights don’t have any room to legally experiment or test their business model or the appetite of the public for their product before launching. This is, in my opinion, damaging the music ecosystem by deterring investment in music start-ups and holding back innovation. More needs to be done to allow some form of experimentation for early stages businesses.
-The EU Collective Rights Management Directive came into full force last month. Do you think it is addressing the concerns of its various stakeholders, including (but not limited to) musicians, rightsholders, CMOs, and labels? Why or why not?
I find that piece of legislation quite interesting, ambitious and a good example of well-functioning EU law.
If we look at each category of stakeholder you mention:
For labels: one of the main concerns for labels, especially independent labels, was that many societies were seen to have a protectionist attitude, favoring home members over foreign members.
In response, the directive imposes a duty to act in all members’ interest, and limits the ability to discriminate between members, which is something I believe should be welcomed by labels.
For artists, musicians: At present, musicians would say they are not well serviced by European CMOs because the system of reciprocity agreements between artists’ societies are far from perfect. However, artists are not the focus of the directive. Artist’s societies are not set-up to license but rather to collect “equitable remuneration” and/or other levies (such as private copy levies). With no harmonization of the equitable remuneration system (or the private copy levies), it remains to be seen if the directive is going to change much for them.
For songwriters: The directive seeks to increase competition between CMOs and the mobility of their members. I wouldn’t be surprised to see certain CMOs ignite recruitment campaigns to increase their relevance on a EU-wide basis. This is a good thing for songwriters, but only if they seize this opportunity.
For CMOs: It’s a win for the big CMOs who are equipped to deal with the constraints imposed upon them by the directive. Some European giants are already emerging from it: ICE (PRS, GEMA, STIM) and ARMONIA (SACEM, SABAM, SGAE, SIAE, SUISA, ARTISJUS, SPAUTORES, AKM).
And… for music services: CMOs will now be under the obligation to provide up-to-date information regarding their online repertoire, which was something that many streaming services were struggling with until now, in part because several societies were claiming to own/control the same repertoire.
On the licensing side of things, the directive is clearly encouraging the creation of licensing hubs (Armonia and ICE leading the way), which is a good thing for music services as it will limit the number of licences that they need. Quite how it will allow them to negotiate their content, especially when publishers and songwriters are increasing their demands, remains to be seen.
-To members of the public (like myself), the EU’s #digitalsinglemarket ambitions means we can order books from Germany and watch Netflix when in Spain. What are the implications for music licensing?
It’s true that music services in Europe don’t suffer from the same geo-blocking problems we see in the audiovisual industry, but it doesn’t mean that the territoriality problem doesn’t exist. A lot of Web-based radio stations are not licensed to operate outside their boundaries, and the reason why they don’t geo-block is merely because their number of foreign listeners is still marginal.
Should they be licensed to webcast outside their boundaries, across Europe, they could attract advertising money from all over Europe. It wouldn’t be impossible to see some of them, successful in their home market, invest in marketing to grow their European audience.
For other activities, such as direct-to-fan campaigns, etc., geo-blocking is still heavily relied upon. This would probably change as well.
-To coin a phrase, “When America sneezes, Britain catches a cold.” Will the review of – and predicted/proposed changes to DMCA – affect safe harbor in the EU, and how? And when?
I am not a US Lawyer and with everything happening in Europe it’s been hard to keep track of the proposed changes in the DMCA. I did however hear many of my US friends working in the field of copyright say that – given the actual political context in the US – it is likely that the EU will lead the way on this issue.
-If you could redesign licensing legislation yourself, what would you do?
It is important to understand that there is no “licensing legislation” per se. A license is a contract relating to copyright-protected material where the business provisions outweigh, by far, the legal provisions, so it is the result achieved through licensing that is being judged rather than the license itself.
Contract law already provides many tools to play with, especially in France, where contract law can be quite interventionist in comparison with the UK. If you are asking about copyright law, I would simply say that today, there is little to no control over how copyright licenses are being structured financially and it is difficult to know if they contribute to a well functioning market. In the field of patent, such controls do exist and have proven to be quite efficient. Perhaps this is an area for exploration?
-We’re looking forward to seeing you at Music 4.5: The Politics of Licensing. What can we expect from your talk?
There’s been a lot going on lately at EU level. And the pace is increasing. It is extraordinary to witness how policy-making is being made and the balance that is constantly being struck between safeguarding general interest, business interests, consumers’ interest, creators’ interests, etc.
At Music 4.5: The Politics of Licensing, I will aim to deliver a comprehensive picture of the ongoing reform projects, highlighting their recent evolution and their potential implications for our industry. I’ll touch upon:
– what we know about the content of the EU copyright directive
– the EU’s communication regarding platforms, and where we are at regarding the “value gap”
– the EU’s attempts at ensuring a fair sharing of the value with creators
– the reopening of the cable-sat directive and what it could mean for music licensing,
– the “link” problem of the content industry; the latest consultation on neighboring rights and what an extension to online publishers of neighboring rights – as granted to broadcasters –would mean for us.
– and more, if we have time!
– Is there anything you’re working on at the moment that you’d like to highlight?
I’ve helped put together the latest European’s commission project in the field of music, initiated by the DG Education and Culture.
The project – entitled “Music Moves Europe” – is aimed at redefining European support to the music sector by 2020. It seeks to introduce a new funding program dedicated to music – at the EU level – that would sit next to the MEDIA program, which has been successfully powering the European audiovisual industry since 1991.
The program is not meant to interfere with EU copyright reform, but it is likely that it will be used to promote the values that underpin the reform, so it could be a very interesting space to watch as well.
Sophie Goossens will chair Music 4.5: The Politics of Licensing, as well as moderate the concluding panel discussion, on 22 September 2016 at Lewis Silkin in London. Read the full agenda and buy tickets here.