The most important 3 employers' organizations in the HoReCa sector, together with a representative organization of users of protected works, welcome the recent decision of the Romanian Copyright Office (ORDA) to establish the committee for renegotiating methodologies which regulates the conditions and tariffs applicable to accommodation units and public catering establishments regarding the public communication of musical works, phonograms published for commercial purposes and artistic performances in the audiovisual field.

The request for renegotiation was submitted to ORDA by FIHR, FPIOR, HORA and the CORECT Association., following changes in recent years to the legislation in the field and the multitude of rulings of the European Court of Justice, some of them targeting outdated aspects of the methodologies in force.

Context

According to the current methodology, collective management organizations (CMOs) represent only a part of the rights holders, so that users pay excessive amounts of money, uncorrelated with the actual use. For example, the article of the law that provided for the mandatory collective management of the public communication of musical works was repealed in Romania in 2019 (consequence of the repeal decision issued by the European Commission in 2017). Although the law was amended, the methodology did not change either, containing both provisions regarding the representation by the CMO of all authors and provisions that do not take into account the use of works that are not part of the extended collective management of that CMO.

Another situation is that interpreted by the European Court of Justice through the Judgment in Case C-147/19 in which it decided that “the single equitable remuneration (…) should not be paid by the user when he makes a communication to the public of an audiovisual recording containing the fixation of an audiovisual work in which a phonogram or a reproduction of this phonogram has been incorporated”. However, collective management organizations in Romania continued to oblige users of audiovisual works to pay remuneration for phonograms.

Currently, methodologies provide that the mere possession of any type of equipment that could be used for a communication is a "public communication" of protected works, which gives them the right to request remuneration (for example, the mere possession of a computer or tablet by a commercial company automatically leads to the obligation to pay remuneration, even if this equipment is not used to communicate music or audiovisual works).

The current methodologies do not take into account, contrary to the provisions of Law 8/1996, the proportion of use of the repertoire managed by the OGC. Thus, situations have arisen in which works from the repertoires of certain collective management bodies have been communicated in a proportion of 15, 10 or even 1%, but accommodation units and public catering units have been obliged to pay the full remuneration. Also, currently, the occupancy rate of accommodation units is not taken into account, although a "public communication" cannot take place in the absence of the "public". Thus, situations have arisen in which accommodation units have been obliged to pay the full remuneration even if the occupancy rate was 50, 30, 10% or even in situations in which the accommodation units were empty, simply because of the existence of televisions in the rooms.

Among the important legislative changes, which are not found in existing methodologies, are those in Law 69/2022, which entered into force on April 4, 2022, which impose a maximum percentage of penalties (0.1 or even 0.5% per day of non-payment or delay) that these bodies can charge (now equal to the NBR interest), but also the obligation to inform users of the payment amount and the issuance of the tax invoice, including through the RO e-Factura system.

The multiple situations of non-compliance with reality or other normative acts have determined the signatories of the request to establish a committee to renegotiate the existing methodologies in the field of public communication of musical works, phonograms published for commercial purposes and artistic performances in the audiovisual field.

The proposal of tourism associations is to negotiate a single methodology that takes into account all legislative changes, European provisions in the field and the realities of 2023, so that users pay only for what they communicate, and rights holders whose creations or interpretations have actually been used are fairly remunerated.

The participants in the renegotiation are:

• FIHR – Federation of the Romanian Hotel Industry
• FPIOR – Federation of Hospitality Industry Employers in Romania
• HORA – Employers' Organization of Hotels and Restaurants in Romania
• CORECT Association

ORDA decision