The mystery of AGICOA. Europe's best open secret.
The company is called AGICOA and it is appropriately based in Geneva, in the heart of banking-secretive Switzerland. From what one can get off of its official website, AGICOA is a not-for-profit organization established in the early '80s to track and distribute (minus 10 percent commission) royalties on retransmission in Europe of content owned by independent producers.
It all sounds good ... on paper. Why then--despite having collected and disbursed something in the order of half a billion euro since the year 2000--have some industry people still never heard of AGICOA? Here, Video Age attempts to unlock the mystery.
When Europe's cable industry emerged in the mid '80s it created a whole new set of rights known as retransmission rights. The basis on which these rights are granted can be found in the Berne Convention (for the Protection of Literary and Artistic Works) which, in its 1979 amendment, stated that, as cable operators' signals are distinct from the originating broadcaster, their transmission must be treated as a separate entity and are therefore subject to the payment of a royalty.
Most European cable operators, however, refused to recognize this obligation, arguing that carriage on their systems was simply an extension of the transmission already licensed to the originating broadcaster. But in a case brought by a number of American film producers and the Dutch Cinema Association against a cable operator in Amstelveen, a city south of Amsterdam, Holland, the Dutch Supreme Court issued a decisive verdict against the cable company. Subsequently, the courts of other European countries began issuing similar verdicts in those types of cases. It was during this period that the British producers organization PACT (Producers Association of Cinema and Television), America's MPAA (Motion Picture Association of America) and FIAFP (International Federation of Film Producers Associations) together formed AGICOA.
Curiously, it was only in 1989, when the "Berne Convention Implementation Act of 1988" came into effect that, for the first time, the U.S. became a party to the Berne Convention, thus making the 1952 Universal Copyright Convention (for those states which disagreed with aspects of the Berne Convention) obsolete. Since almost all nations are members of the World Trade Organization, its Agreement on Trade-Related Aspects of Intellectual Property Rights now requires non-members to accept almost all of the conditions of the Berne Convention.
Going back to AGICOA, in effect it works by issuing a blanket license to individual cable operators and then collecting royalties for all programming the operator retransmits. In order for a producer to collect the money owed, it first must register with AGICOA and then prove title to the program in question. The first such agreement was issued by AGICOA in 1984 in Belgium, and following a 1993 directive by the E.U., it is not possible for an individual producer to try to collect royalties directly. The only way to access this money is by registering with AGICOA. Although AGICOA only exists to work on behalf of producers and broadcasters, it continues to have the right to negotiate individually with cable operators.
However, the good news, explained Geneva-based Pierre Oberholzer, AGICOA's Customers and Distribution director, is that, "the process rights holders have to follow to be considered for royalty payment is simple." And, it is also free. "Firstly," explained Oberholzer, "the production company must be registered with AGICOA, providing contact and bank details and stating who at the company is authorized to deal with AGICOA. Once this is done," he continued, "AGICOA will assign the company a portfolio manager, whose responsibility it is to ensure that his/her assigned rights holder experiences as smooth an interaction with AGICOA as possible."
"Once all of this is done," said Oberholzer, "all that remains is for the rights holder to declare the copyrights they hold, e.g. 'I have the copyright for the film The Amazing AGICOA for rebroadcasts spanning 2002 to 2010 for the French version in Belgium.' And that can be where the registration process ends, and the fun starts."
Greg Phillips, president of U.K.-based Fireworks International, was happy to declare that, "when AGICOA was first established, it was a God-send. Because the truth of the matter is that at that time very few if any, in the distribution business had ever thought about retransmission rights, and every time you get a check from AGICOA it is fantastic. But," cautioned Phillips, "getting paid by AGICOA is not an easy task and dealing with them is not always an uplifting experience. Although I would say this is not always their fault because once you register a claim to title, you often find that you are not the only one claiming it, and, quite rightly, AGICOA will not pay out until they are satisfied they know who the rightful owner is. In principle," concluded Phillips, "it is a damn good idea, and in a perfect world, filled only with honest people it would probably work like dream, but ..."
John O'Sullivan, CEO of British collection company Compact Collections and also a board member of AGICOA, made a number of other useful points. The first was that, "retransmission rights can only be collected from cable operators in countries where legislation exists, making such payments a requirement for re-transmission. The U.K. doesn't have such legislation, and here no such collections can be made." O'Sullivan was also keen to point out that AGICOA "only collects retransmission rights whereas companies such as Compact, who represent all the U.K. broadcasters, many of the largest production companies and a huge slab of the Hollywood majors, collects all secondary rights including such rights as educational copying and private performance rights."
If a producer fails to register its title with AGICOA, the money due from any retransmission will still be collected from the cable companies by AGICOA, and generally the money will be held for three years, at the end of which time it will be redistributed on an equal basis between all registered companies. The exceptions to this three-year rule are Ireland, where the period is five years and France where it is 10. And, said Compact's O'Sullivan, "this is the system used by all major collection agencies such as the PRS [the London-based Performing Rights Society at www.prsformusic.com], and I have to say, that AGICOA, which is a not-for-profit organization, does a pretty good job."
Oberholzer revealed that AGICOA currently has agreements with cable and satellite operators in place in 35 countries and is negotiating to enter Latin America "in coordination with EGEDA [the Madrid, Spain-based Audiovisual Producers' Rights Management Association, which is also active in Chile, Colombia, Ecuador, Peru and Uruguay, at www.egeda.es]."
Oberholzer also revealed that AGICOA has 7,000 producers registered with it, who between them have shared royalties of more than half a billion Euro since 2000. Anyone who would like to join them can follow the simple process at www.agicoa.org.