Today – 16 June 2022 – the Belgium Parliament completed the implementation of the so-called Copyright directive (2019/790). As one of the 13 remaining countries that were running late in implementing, Belgium felt the pressure of the European Commission that recently took a second step in the infringement procedure. AEPO-ARTIS, and the 650.000 performers our members represent, thanks Belgium profoundly for the way it implemented the Copyright directive by adapting its existing legislation to ensure better protection of performers and authors in the online environment.
Better late when it’s better
Article 18 of the Copyright directive obliges Member States to ensure that where authors and performers license or transfer their exclusive rights for the exploitation of their works or other subject matter, they are entitled to receive appropriate and proportionate remuneration. Although Member states have the freedom to use different mechanisms to make this principle effective, most have so far limited themselves to a literal copying of the wording of article 18. This “path of least resistance” approach disregards the explicit wording in the Directive that the rapid technological developments, that allowed new actors with new business models to manifest themselves, needed to be accompanied by measures adapting and supplementing the relevant legislation to make it future-proof (recital 3). It does nothing to ensure authors and performers receive “appropriate and proportionate remuneration”.
Taking this into account, the proposal submitted by the Belgian government to the Parliament included an additional remuneration right for the use of music and audiovisual works by so-called online content sharing service providers (OCCSP’s). Such right would allow performers and authors to collect a remuneration directly from platforms such as Youtube, Twitch and TikTok through their Collective Management Organisation. Article 17 of the Copyright directive introduces a payment obligation for these new types of business. With this choice, Belgium follows the German precedent and guarantees that part of that new revenue stream is directly distributed to performers and authors.
During the debate in the Parliament, this choice received broad support, but was criticised for being too limited given that commercial streaming platforms such as Netflix, Spotify and Disney+ did not fall within the scope of such remuneration right. Such a right already exists in a limited number of European countries and has proven to effectively strengthen the position of performers and authors. An amendment was therefore submitted, and approved, to introduce a second additional remuneration right which ensures that from now on these platforms also have to pay a remuneration that is distributed directly to performers and authors via their collective management organisations.
Christophe Van Vaerenbergh, General Manager of PlayRight, the Belgian CMO for performers, is very pleased with the final text: “PlayRight applauds the adoption of the Belgian DSM bill of law: this is a new era for neighbouring rights and a clear recognition that only a non-transferable and non-waivable right to remuneration provides sufficient and equitable protection for musicians and actors in the digital age.”
Challenged by statements from music producers who linked the choices made by this legislation to the end of all music activities in Belgium, Minister of Economic Affairs Dermagne defended the choice: “The addition of remuneration rights for online exploitations was made at the request of the artists” he said. “It empowers them to effectively receive a remuneration and during the upcoming Belgian EU presidency in 2024, we want to make an effort to generalise this system in the EU.”
“The only excuse to be late in this implementation is the search for the best additional measures to protect performers in the online environment they are increasingly dependent on”, says Ioan Kaes, General Secretary of AEPO-ARTIS. “These two provisions mark the most comprehensive and effective implementation of articles 17 and 18 of the Copyright directive so far. They are a model that the 12 countries that have yet to implement could adopt, and demonstrate to those who have opted for literal transposition that achieving a directive’s objectives is more important than achieving its deadline.” he adds.
AEPO-ARTIS counts on the responsible cooperation of all OCSSPs and commercial streaming platforms to quickly convert this modern piece of legislation into a modern practice where performers and authors can enjoy an appropriate and proportionate remuneration for the online exploitation of their works.