Record company lawsuits a 'threat to free culture'

A new row over copyright has blown up in Sweden. At Stockholm City Theatre (Stockholm stadsteater) one play has been cancelled and another is under threat from music publishers. In both cases, the focus of the disputes is copyright. Are copyright owners advancing into new territory? If so, it could have serious consequences for writers, who have a right to be paid, and for theatres, which want to spread music and which should of course have to pay their way.

The Swedish Music Publishers' Association (SMFF) has written to tell me that I am spreading 'false information' when I argue that music publishers aren't respecting the STIM-agreement, which governs how royalties are paid when music is performed. They also say that I am pointing fingers (at what I'm not sure) in the discussion of Stockholm Stadsteater's production of 'De tre Mustketörerna.' The letter is, like the whole of the music industry's action against Stadsteater, a threat to free culture in Stockholm.

If it hadn't been the case that they had themselves sent their letter to Svenska Dagbladet for publication, I would have sent this response directly to them.

The music publishers describe in their letter their "important role as a link between theatres and copyright owners" and explain that "the publishers have used all available means during the summer and early autumn to try to find a solution in the context of the agreements that the publishers have with their writers."

As the person with political responsibility for Stockholm stadsteater, I interpret the STIM agreement in the same way as the theatres' own organization Svensk Scenkonst. STIM's assertion that the use of the music falls outside the terms of the agreement is not of decisive significance.

STIM does not have the right either to unilaterally interpret the agreement or change the terms of the agreement without prior negotiation with Svensk Scenkonst.

But this is not what the discussion is really about. What it actually centres on is how music publishers act towards theatres that want to use music in their productions.

De Tre Musketörerna quickly became a success following its première this spring. It has played to full houses ever since. During the spring, Universal Music Publishing AB sent a letter to Stadsteater claiming that the music in the play constituted use of their so-called 'grand rights'

Despite the fact that Stadsteater believed and continues to believe that the use of music in De Tre Musketörerna was covered by the STIM agreement, it signed a settlement with Universal with the aim of keeping good relations and avoiding a legal wrangle.

Moreover, Stadsteater has made great efforts during the spring and summer to come to agreement with the music publishers over the issue of extra compensation for copyright owners. This effort has gone unrecognized by a number of publishers despite the fact that, as SMFF itself points out, several of the copyright owners are positive to their work being performed in the play.

By the day of the new première, August 14th, Stadsteatern had still not received any answer to its inquiries from the music companies. Two of the six companies involved had not responded at all.

During this process Universal - at the same time as having an agreement with Stadsteatern - has also declared that they plan to sue the theatre. The first time was at the end of April, and the second time was in August.

Universal also declared in August that the guest performance entitled Sounds of Silence from Riga, in which music by Simon and Garfunkel is played on a grammaphone in the background, should not be played in Stockholm. The play has toured across Europe and has never had any problems before. But suddenly Paul Simon has heard about the lay, and does not want his music being used, Universal claim.

I then wrote a letter to Paul Simon and asked if this really was his opinion, and receive a swift response from his representative Eddie Simon that something must be array here. Universal do not represent Paul Simon in contractual agreements with theatres, he explained. Universal then retracted their demand and said that there were no longer any objections. The Latvian theatre company had however already withdrawn the play, which the Stockholm audience now did not get to see.

If this was an isolated incident then it could be excused as the result of carelessness. Could it be that the threats and writs are the music companies' new business idea when record sales have declined? In the USA this has become a regular practice.

In the spring a court in Boston instructed Jim Tenenbaum to pay $675,000 in compensation to the five music companies - of which Universal was one - which had sued him for downloading 30 songs from the file sharing site Kazaa. This equates to around 160,000 kronor ($23,400) per track.

According to IFPI, which represents the recording industry worldwide, 40 billion music files were illegally copied during 2008. If every track was worth 160,000 kronor it would mean that the total damages would amount to 6.4 billion kronor.

When sales of music peaked in the beginning of the 2000s, total revenues from record sales amounted to $27 billion, according to the same organization. The purported losses incurred by file sharing which the damages claims were based on were thus 30,000 times larger that what record sales had generated. The case against Tenenbaum was thus not about seeking damages for losses incurred, but is part of a new business model for the music companies.

The risk is now that the same practice comes to Sweden. The question is therefore not only about whether Stadsteatern has the right to used the music in accordance with their long-running agreement with STIM, but that the major music companies have to stop with their threats to sue. Then you would stop using music. That would be a catastrophe.

In SMFF's letter to me it states that they want a dialogue. This is not achieved through threats or via the courts.

By Madeleine Sjöstedt

Editor's note: This piece was first appeared in Swedish by the Svenska Dagbladet (SvD) newspaper on September 22, 2009.