UPDATE: Brazilian Performance Rights Agency Demands Blogger Pay $204 A Month To Embed Videos

from the you-can-only-take-my-money-for-so-long-before-you-take-it-all dept

Thu, Mar 8th 2012 6:19am — Tim Cushing

Well, you can never say that performance rights organizations are unwilling to explore every option when attempting to snag a bit more income, ostensibly for their roster artists. American PROs (ASCAP, BMI, etc.) have attempted to collect from Girl Scouts, every cell phone owner with a ringtone and argued that a single person listening to their own music via the cloud is a "public performance." British PROs (PRS, mainly) have levied fees against pretty much any small business that has the audacity to play radios at an audible volume, as well as succeeding in collecting fees for "public performances" from hotels/motels who provide in-room radios for their guests. SABAM, Belgium's PRO arm, has managed to out-thug the rest of the world's PROs, demanding fees from truck drivers for listening to the radio in their cabs ("workplace") as well as collecting for bands that don't even exist.

There's a lot of competition out there in the dog-eat-dog world of performance rights double and triple-dipping, but it appears that Brazil's PRO, ECAD (Central Office of Collection and Distribution) is ready to play in the big leagues. Its strategy? Collect royalties from bloggers who embed videos. (As you may recall, ASCAP tried this a few years back to no avail, but Brazil's relationship with copyright could safely be described as "incomprehensibly inconsistent.")

~~(The following quotes come from a translated page, so they have been copied verbatim.)~~ [UPDATE: Eduardo, the author of the original post, has sent over a better translation of the quotations.)

The saga of unusual collections of the Central Office of Collection and Distribution (ECAD) has added another chapter last week. The boys from the blog Caligraffiti received last Tuesday in an email warning that the collecting society would have to pay royalties for videos from YouTube and Vimeo that appeared on the site.

The saga of unusual collections from the Central Office of Collection and Distribution (ECAD) gained another chapter last week. The boys from the blog Caligraffiti received last Tuesday an email from the collecting society warning that they would have to pay royalties for videos from YouTube and Vimeo embedded on the site.

This is surprising. ECAD already collects performance royalties from Youtube Brasil for its artists. In fact, it collects quite a bit from Youtube.

YouTube Brasil will have to pay 2.5% of its gross revenue per exhibition of songs protected by Ecad (Bureau of Revenue Distribution) in the country. If the amount of the stipulated percentage does not reach BRL 258,000 (US $146,250) in a year, the site must pay the value as "minimum annual fee".

Not only does Youtube Brasil pay a minimum mandatory fee yearly but ECAD has also hit the site with a BRL 645,000 (US $366,000) "subscription fee." The PRO collected roughly BRL 510,000 (US $289,000) in 2011. With Youtube already on the hook for the performance royalties, how does ECAD arrive at the conclusion that embedded video (just a link back to Youtube for all intents and purposes) should subject bloggers to performance royalty payments?

Well, according to ECAD, Youtube is the "transmitter" and of course, has to pay. But blogs embedding videos are "relays" and are also subject to these fees. Basically, ECAD has found a loophole in the existing law and is looking to exploit it. ECAD's spokesman:

[UPDATE: Translation via Eduardo, along with this splendid note -- "This second one has a very bad wording in portuguese as well, written by lawyers in their own language."]:

The right of public performance in digital mode is through the concept of transmission exists in law and in this art. 5 of section II of Law 9.610/98, which issue is the transmission or dissemination of sounds or sounds and images through of radio waves, satellite signals, wire, cable or other conductor, optical or other electromagnetic process, so this includes the Internet.

The rights of public performance in digital media happen through the concept of transmission found in the article 5, section II of the law 9.610/98, in wich transmission or emission are the diffusion of sounds or images through radio waves, satellite signals, wire, cable or other conductor, optical or other electromagnetic process, so this includes the Internet.

ECAD also argues that the "transmitter" and the "relay" are completely different forms of use and as such, do not represent "double recovery." This is, roughly translated, complete horseshit. But it gets even worse. Bloggers are being charged a flat-rate based on a designation that ECAD itself decides. The cheapest option, most likely, is to be declared a "non-profit." But even that designation saddles the blog with crippling fees.

To blog [as] a nonprofit, the amount charged by Ecad is nothing lightweight: R $ 352.59 (US $204) monthly.

Caligraffiti is a niche blog dedicated to design and technology, with a hit count of 1,000-1,500 hits per day and is not profitable. Every contributor does something other than blogging for income. Despite this, ECAD has designated the blog as a "webcasting or broadcasting program originating from the internet," a category that is sure to increase the amount levied against it.

In response to this collection attempt, Caligraffiti was briefly taken offline. After some legal consultation, the bloggers decided to re-open and fight ECAD head on, stating that this is clearly an attack on the internet itself, which was built on open sharing and dissemination of information.

ECAD is also sticking to its guns, stating that although it has no collection arm "dedicated" to collecting from bloggers, anyone who "publicly performs music" (read: "embeds video") on their site is subject to these fees. Of course, ECAD isn't doubling up on royalties just to be greedy. Its focus is on "the awareness and enlightenment on the need for payment copyright," without which its covered artists would be "disrespected" by callous bloggers and their embedding code.

Eduardo has also confirmed that ECAD has gone after weddings with DJs for performance royalties (as Ninja pointed out in the comments) and pointed out that the BRL $359 amounts to roughly half a month's wages at minimum wage.

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Filed Under: brazil, embedding, fees, licenses, videos, youtube
Companies: ecad, google, youtube

35 Comments

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Anonymous Coward, 8 Mar 2012 @ 6:21am

and how much of that money do you suspect will go to the artists??
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Planespotter (profile), 8 Mar 2012 @ 6:27am

Jeez... I'm starting to wish these collecting agencies and their staff ill-will... I try not to want anyone dead but I'm at breaking point here!

*pissed off tha Tiddles (the family cat) can no longer enjoy Radio 4 when at the cattery*
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Anonymous Coward, 8 Mar 2012 @ 6:43am

"Brazilian Performance Rights Agency Demands"
Forget about their demands, I heard this guy called Dr.Evil is demanding the sum...OF 1 MILLION DOLLARS!
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Ninja (profile), 8 Mar 2012 @ 6:45am

Re:
Don't we already know? It goes for further anti-piracy efforts obviously, for the sake of the artists.
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Ninja (profile), 8 Mar 2012 @ 6:50am

lulz... the same ECAD that crashes weddings to collect fees even if the event is private (good luck crashing all barbecues we Brazilians love to make in the weekends with plenty of 'unlicensed' music). In summary they are plain assholes. Twitter (in Brazil) is erupting for 2 days now with all the outrage against this (not that they care).

It all sums up to 2 things: pure and endless greed and poorly written laws that don't include clear fair use clauses. The irony is that downloading for personal uses is legal so if these blogs just LINK to the video it's ok. And that's wht ppl are advising in twitter.

Copyright 0 x intinity People
We'll always win ;)
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Nathan F (profile), 8 Mar 2012 @ 6:57am

And the industry wonders why we scoff at their laws. They have gotten so out of hand that it seems nigh impossible to do anything on the Internet without some collection agency or privacy monitor group sticking their nose in.
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Anonymous Coward, 8 Mar 2012 @ 7:03am

Imagine... a world without music. That's where we're headed if this continues.
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Anonymous Coward, 8 Mar 2012 @ 7:03am

Imagine... a world without music. That's where we're headed if this continues.
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Anonymous Coward, 8 Mar 2012 @ 7:07am

Re:
ROFL, never gonna happen.
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Anonymous Coward, 8 Mar 2012 @ 7:14am

looks like the slow-down (ban) on buying music has got to be extended to include not listening to music as well. wonder what they would dream up to be able to charge people for if no one bought or listened to music again? what if every movie was muted at every spot where music played? would that make them happy, do you think?
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MrWilson, 8 Mar 2012 @ 7:15am

Re: Re:
Well of course. Artists would rather know that their music isn't being "stolen" (i.e. listened to) by their fans than eat! It's why they became artists in the first place -for they liked the title "starving artist."
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Anonymous Coward, 8 Mar 2012 @ 7:16am

Re:
Well, the artists need their work protected! Therefore, they're only charged a nominal fee for this service of protecting their art.

And they're going through all this trouble, so they need to keep the money they collect, or else they'd have to charge the artists even MORE for this service!

amidoinitrite?
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Anonymous Coward, 8 Mar 2012 @ 7:18am

Re:
Yea, that's really not gonna happen. All something like this does is push people more and more to ignore these laws.
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Anonymous Coward, 8 Mar 2012 @ 7:37am

Re: Re:
I think he is probably simply using the same argument used by the labels and the multiple acronymic organisations in favour of strong copyright enforcement for what will happen if piracy *gasp* continues but repurposed in a slightly more realistic way for what could be imagined to happen if every music experience has to be paid for many multiples of times.

I wonder what the charge is for not being able to get a tune out of your head. *Bankruptcy*
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Anonymous Coward, 8 Mar 2012 @ 7:38am

Same stale smell...
Well, I suppose that this might constitute one of the "new" business models that are frequently discussed at length on TechDirt, at least from a Reason To Buy perspective, but I don't see a Connect With Fans aspect. Which fans are they addressing? And the presented Reason To Buy is merely yet another banal rerun of the might-makes-right/we-can-afford-hired-guns-with-bigger-willies-than-your-hired-guns business model so often employed by other branches of the IP industry. Oh! Wait a moment... There doesn't seem to be a Connect With Fans aspect to this business model at all. What /am/ I carrying on about?! Self-fail! Please ignore.
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Trails (profile), 8 Mar 2012 @ 7:41am

Technical Details
"ECAD also argues that the "transmitter" and the "relay" are completely different forms of use and as such, do not represent "double recovery." This is, roughly translated, complete horseshit."

Boy is it. A relay has a fairly specific meaning: it relays things. For example your cable/DSL modem is relaying data to and from your computer. Take it away and the connection is broken.

Embedding a video does not cause the embedding site to relay anything. The embedding site holds a link to the vid (a pointer), the vid data never touches the embedding site's servers. The relay concept applied here is not just a stretch, it's flat out wrong. Good luck to Caligraffiti.
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Anonymous Coward, 8 Mar 2012 @ 7:43am

Re: Re:
Never gonna give you up . . .
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:Lobo Santo (profile), 8 Mar 2012 @ 7:47am

Re: Re: Re:
Never gonna let you down...
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Ninja (profile), 8 Mar 2012 @ 8:32am

Re:
Yes, because all music produced before the copyright idiocy began is just some invention of our collective schizophrenic minds, right?
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gorehound (profile), 8 Mar 2012 @ 8:55am

Re:
NONE !!!
Artists will never see a dime.And by now it should be apparent to any Artist (and I am one:see bigmeathammer.com )
that as an Artist you should never sign with any of these Organizations.
If you do sign with the MAFIAA not only are you a traitor but you are a fool !!!
You will be ripped off just like your fans will.
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Anonymous Coward, 8 Mar 2012 @ 9:00am

Speaking about double and triple dipping. I am so sick of ads on all these damned web pages (Techdirt included). There are ads on everything now. If the web is supposed to be a platform for sharing information, why has it become one gigantic commercial? Even sites that I pay to access (banking - through fees, cell phone carrier, Electric service page, etc..) I think it's time I broke down and installed an ad blocker. end rant
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Beech, 8 Mar 2012 @ 9:12am

Hey Dawg,
I heard you liked collecting royalties, so I put some royalties in your royalties so can collect your royalties while you're collecting your royalties.
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Chuck Norris' Enemy (deceased) (profile), 8 Mar 2012 @ 9:18am

Re:
Imagine...a world without music rights collection agencies that collect plenty of money for themselves and the predatory rights holders/theives...and reluctantly give the scraps to a small portion of blessed artists. That's where we should be headed.
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Mr. Smarta**, 8 Mar 2012 @ 9:37am

Plenty more in there
Oh, there's a lot more that can be charged. Think of all the routers, switches, etc. between Youtube and the blogs. Even when a video is embedded, it has to travel through all those pieces of equipment, through at least two ISPs. Every time that goes through a piece of equipment or cable, that's a performance! And think of all the money they could be collecting from HP, Cisco, Motorola, etc. etc. Even the cable manufacturers that make the CAT-5E and whatever are skipping out on being charged.

Every one of these companies needs to pay a performance fee every time the content creator's electrons pass through everything. Not to mention every chip, CPU, network card, fiber, and so on. There must be a hundred chips in these routers and switches. And all those dang resistors and capacitors!!! OMFG!!! That's at least US$800 Quadrillion that could be collected!!!

Thank you so much for pointing this out, TechDirt!! All the stuff I created, and I'm not getting a dime from these people. That's it!!! I could easily make every single dollar, peso, franc, mark, etc. etc. in existence overnight because of this. I could hire every copyright attorney to sue every one of these companies.

And if you think this post gets into the 'ridiculous', you obviously haven't been reading enough articles from RIAA, MPAA, SABAM, and the others.
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Stuart Gray, 8 Mar 2012 @ 10:05am

Re:
You mean imagine a world without shitty "Artists" that only really care about groupy pussy and big lable recording contracts.
Hmmm. It seems I am ok with this. I hope most of the bands I really like can move forward with this but if not I am ok with them never producing another thing. Others will step forward and gather fans and be supported. Life and Music and Media in general will all go on. My guess is it will even get better.
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Eduardo (profile), 8 Mar 2012 @ 10:08am

Translation
Hi Tim, i wrote the original story. If you want i can send you a better translation for the sentences you have on this article.
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Anonymous Coward, 8 Mar 2012 @ 10:30am

Re:
Use any browser except IE and you can block ads easily. You can do it with IE as well but it's more complicated.
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Anonymous Coward, 8 Mar 2012 @ 11:15am

Re: Re: Re:
I was just pointing out that the way they want to charge and recharge for the same product over and over again, eventually, if we all follow the law, no one would be able to afford to listen to the music they already own.
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Anonymous Coward, 8 Mar 2012 @ 1:36pm

Re: Plenty more in there
Good point the entire internet is just one big relay :)

Isn't copyright marvelous?
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another mike (profile), 8 Mar 2012 @ 2:48pm

Re: Re: Re: Re:
We need a new internet law. I propose "Astley's Law". It works similar to Godwin's Law in ending threads. Rick-rolling a comment section, being the epitome of humor, is the high water mark and conclusion of a thread's humor potential. The thread closes because there is no more funny to be had.
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Capitalist Lion Tamer (profile), 8 Mar 2012 @ 2:59pm

Re: Translation
That would be great. Send me a direct message over on Twitter and I'll shoot you my email address.

https://twitter.com/#!/TimCushing
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its no problem plane, 8 Mar 2012 @ 3:31pm

Re:
i have wanted them dead for years lol.
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Capitalist Lion Tamer (profile), 9 Mar 2012 @ 1:14am

Re: Translation
Or here's a URL that will actually work for those not currently logged in as Tim Cushing:

http://twitter.com/#!/timcushing
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Fledermaus, 9 Mar 2012 @ 9:31am

LOL
The ECAD should come to my neighborhood and fine all those idiots that have cars filled with tons of sound equipment. As all neighbors are forced to listen their music isn't it public performance? LOL!
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Beverly Gay, 27 Apr 2012 @ 10:22am

ECAD contact info
Does anyone happen to have any contact information for this outfit?
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