Gramo asks the Storting to protect the compulsory licensing system in Section 21 of the Copyright Act.

Gramo generally supports an implementation close to the directive, but warns against an independent proposal that does not follow from the implementation of the directive, and which, in Gramo's view, would undermine the statutory system for the collection and distribution of remuneration under Section 21 of the Copyright Act.

The supplementary proposal seeks to legislate a right to waive remuneration pursuant to Section 21, fifth paragraph, and must, in Gramo's view, be assessed against the EEA obligations in Article 8(2) of the Rental Directive.

The case of "free music"

The background is a practice where some actors offer sound recordings with agreements that in reality function as an alternative clearance model alongside the legal system, often referred to as "freely purchased music". Users get the impression that through such agreements they can avoid paying fees to Gramo.

Two questions that must be kept apart

In Gramo's view, the proposal is based on a confusion of two legally different questions. The first concerns alternative clearance: whether remuneration under Section 21 can be collected from others than the approved organization. The second concerns waiver: whether a licensee can waive his right to remuneration. In practice, the right to waiver is used as a legal basis for alternative clearance, and both questions must therefore be answered.

Section 21 is a compulsory license, not an exclusive right. The user is obligated to pay compensation regardless, and the compensation must be collected through the approved organization. A waiver only applies to the internal monetary claim between the copyright holder and Gramo, not a clearance that exempts the user.

The proposal is also difficult to reconcile with Article 8(2) of the Rental Directive. The Advocate General in the RAAP case (C-265/19) assumed that the remuneration cannot be waived, and the Court of Justice of the European Union did not rule on the issue. Furthermore, Section 18(5) of the Copyright Act already expressly prohibits the waiver of additional remuneration; Section 21 should be treated similarly.

What Gramo is asking the committee to do

Gramo asks the committee to clarify in Section 21, fifth paragraph, that remuneration can only be collected through the approved collection and distribution organization, and that the remuneration cannot be waived.