The distribution process

Kopinor's efforts to distribute remuneration to Norwegian rightsholders are headed by a Board of Distribution, established by a resolution adopted by the Members' Council on 18 June 1986. The objective was to create the most efficient, straightforward structure possible in order to facilitate distribution. The Board of Distribution is elected by the Members' Council and, in organisational terms, it is on a par with Kopinor's Executive Board.

The Board of Distribution has six members. Pursuant to the statutes, the Norwegian Non-fiction Writers' and Translators' Association (NFF) and The Norwegian Publishers' Association (DnF) shall always have one seat each. The other four members of the Board of Distribution may be elected freely, with the proviso that representatives of authors' organisations shall always comprise the majority of the Board.

The Board of Distribution bears the ultimate responsibility for all Kopinor's distribution work. The Board meets on a regular basis, and its main tasks are to:

• organise and ensure the progress of negotiations regarding the distribution of remuneration among Kopinor's member organisations;
• mediate in distribution disputes;
• issue rulings on distribution in the event mediation fails;
• state opinions regarding the coding instructions used in connection with statistical surveys of photocopying practices;
• state opinions on distribution-related questions in connection with disputes about the coding instructions.

Principles and guidelines for distribution

The Board of Distribution has adopted a set of guiding principles for the distribution of remuneration among Kopinor's member organisations. The distribution principles act as guidelines for the Board of Distribution's work, as well as for member organisations, for example, when preparing claims for their fair share of the remuneration.

1. Each individual photocopying/remuneration area shall be dealt with separately;
2. Remuneration for each individual type of material within each category of source shall be distributed separately;
3. All types of materials/sources shall be divided into an authors' share and a publishers' share;
4. All organisations that have submitted claims for a particular category of material/source shall be party to the negotiations on the division of the authors'/publishers' shares for the category in question;
5. All authors' organisations that have submitted claims for a particular material/source category shall be party to the negotiations on the division of the authors' share for the category in question. The same shall apply to publishers' organisations for the distribution of the publishers' share;
6. The distribution of remuneration shall be performed in accordance with the approved statistics that apply to the area in question;
7. The organisations will normally only receive a share of the remuneration for the types of materials/sources due them by virtue of the fact that they represent the interests of professional practitioners, and where professional efforts within the category qualify practitioners for membership;
8. Where several organisations claim the authors' or publishers' share for the same type of materials/sources, distribution shall be commensurate with relevant measurable factors. The same applies to the distribution of the publisher's share of the remuneration for a given category.

Basically, a members' organisation must qualify as being representative of a category of rightsholders in a certain area to be entitled to claim a share of the photocopying remuneration in that area.

Distribution procedures

The normal procedure and the settlement of disputes

The organisations basically try to decide how to distribute remuneration derived from an area of agreement through negotiations. At the first meeting (a so-called general meeting), where all Kopinor's member organisations are represented, negotiations are conducted to divide the remuneration into an authors' share and a publishers' share. The next step is for the authors' organisations to negotiate the further distribution of the authors' share, while the publishers' organisations do the same regarding the distribution of the publishers' share. Distribution negotiations are supervised by Kopinor's administration. Once agreement is reached, all organisations sign a distribution agreement for the area in question.

Negotiations sometimes fail. In such case, the Board of Distribution has the following options available (in the order in which they are to be used):

• mediation
• ruling by the Board of Distribution
• arbitration.

Any of these avenues of recourse may lead to the signing of a distribution agreement. The dispute settlement mechanism may be used in connection with negotiations regarding distribution between authors and publishers, and with the negotiations among the authors' or the publishers' organisations, respectively.

Mediation

To mediate questions related to distribution, the Board of Distribution appoints two of its own members as mediators, usually one author and one publisher. Ordinarily, the mediators present a mediation proposal for the parties' consideration, although in some cases the mediators may opt to forward the case directly to the full Board of Distribution, for example, in cases in which it is obvious that the mediation proposal will not be accepted.

Rulings on distribution

If mediation does not meet with success, the Board of Distribution shall deal with the question in a plenary session and adopt a distribution decision. As a basis for the decision, the organisations in question present their arguments in writing or argue them orally before the Board of Distribution. In the event an organisation does not accept a ruling on distribution, the case must be presented for arbitration.

Situations may arise in which the Board of Distribution does not manage to reach a distribution decision due to a tie vote. In such a case, the parties may elect to accept a current negotiation or mediation proposal, or they may submit the case for arbitration. Where this does not occur, the Board of Distribution must submit the case for arbitration.

Arbitration

Kopinor's Arbitration Tribunal consists of three copyright experts. The authors' organisations and the publishers' organisations shall appoint one member each, then the two appointees shall jointly select the third member. Decisions of the Arbitration Tribunal are binding and may not be appealed. All costs in connection with arbitration shall be borne by the member organisations party to the arbitration.

Today, the Kopinor's Arbitration Tribunal consists of Prof. dr. juris. Viggo Hagstrøm (chairman), Prof. dr. juris. Kåre Lilleholt and Lawyer Eigil Wekre.

Arbitration awards

Over the years, five distribution disputes have been resolved through arbitration, the last four before Kopinor's own Arbitration Tribunal.

• The arbitration award of 14 January 1985 regarding the distribution of remuneration for reprographic reproduction in the school system and the adult education system, 1980-82.
• Kopinor award no. 1 of 16 June 1982 (Newspaper award) regarding the distribution of remuneration between the press organisations for the reprographic reproduction of newspapers in schools 1977-79.
• Kopinor award no. 2 of 20 March 1984 (Specialist press award) regarding the distribution of remuneration for the reprographic reproduction of magazines and journals in the school system 1977-79.
• Kopinor award no. 3 of 22 January 1988 regarding the size of the publishers' share for textbooks, non-fiction, original fiction, encyclopaedias/reference books and other publisher-produced materials, pursuant to the 1985 Agreement concerning the reprographic reproduction of copyright material for educational purposes in primary and secondary schools.
• Kopinor award no. 4 of 22 June 1991 regarding the distribution of the authors' share for photocopying poetry and lyrics from song books and ballad books.

One distribution dispute ended with judgement by consent, when the case was settled between the parties with the assistance of the arbitrators. The dispute revolved around stipulation of the publishers' share for reprographic reproduction of the source Non-fiction book at the university/college level.

Distribution areas and agreements

Agreements have been signed for the final distribution of remuneration in the following distribution areas:

Several distribution agreements may refer to one and the same distribution area since the agreements are usually signed for limited periods of time. The most recently signed agreements in each distribution area contain a clause which states that future distribution of remuneration from the area shall be considered final as long as the distribution agreement is not terminated by at least one member organisation. The distribution agreements shall remain in effect even if a new statistical survey is performed in a photocopying area, the agreements shall simply be adjusted to coincide with the results of the survey.

The division of remuneration between the authors and the publishers

§ 1 of the Copyright Act states:

Any person who creates a literary, scientific or artistic work shall have the copyright therein.

The author's right to remuneration for reprographic reproduction is established in § 2 of the Act, which grants him or her the exclusive right of disposal over his or her work by producing copies thereof and making them available to the public. This right also applies to adaptations and translations.

The publishers' right to a share of the remuneration derives inter alia from the general clause in the Marketing Act that prohibits actions which are in contravention of good business practice, for example, unfair competition, as might be the case if one were to photocopy the printed image as created by the publisher. The amount of work a publisher invests in a publication and the loss of sales income due to photocopying will have a bearing on the share of the remuneration granted the publisher.

The following distribution keys applies to the division of remuneration between Norwegian authors and publishers:

Further division of remuneration between authors and publishers

Authors' share
The authors' share of the remuneration is linked to reprographic reproduction of various types of material and the relevant breakdown among them. Each individual type of material and the type of source in which it is found give an indication of which groups of authors are entitled to remuneration. For example, the remuneration for all types of non-fiction texts in newspapers is divided between journalists and newspaper editors, and the remuneration for sheet music in all types of sources is credited to the Society of Norwegian Composers, New Music Composers' Group, NOPA Norwegian Society of Composers and Lyricists and the Norwegian Music Publishers' Association through their joint fund (the Composers' Remuneration Fund).

Publishers' share
The publishers' share of the remuneration is linked to the various types of sources and the relevant breakdown among them. Each individual source category/type of publication copied, and the type of material copied, give an indication of which publisher categories are entitled to remuneration. Generally speaking, sheet music is published by the music publishers, while newspapers are published by members of the Norwegian Media Businesses' Association, etc.