On July 20th, Commissioner Thierry Breton, responded to a Parliamentary Question that was tabled in March 2022 by the Cultural and Creators Friendship Group (CCFG).
The question concerning article 18 of the Copyright Directive (2019/790) which puts on the Member States the obligation 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” and grants them the freedom “to use different mechanisms and take into account the principle of contractual freedom and a fair balance of rights and interests.”
This article 18 is linked to the general objective of the directive “to adapt and supplement the existing Union copyright framework, while keeping a high level of protection of copyright and related rights” in order to face the “rapid technological developments that continue to transform the way works and other subject matter are created, produced, distributed and exploited.” (Recital 3).
As advocates of a high level of protection for performers, AEPO-ARTIS and all its members have been calling upon all Member States to implement this article not with a literal copy-paste of the wording , but with effective mechanisms. We have always promoted the introduction of an unwaivable remuneration right for the making available of our performers’ work to increase their level of protection in the online environment. For performers the system of an equitable remuneration for streaming exploitations is the best possible way to increase their chances to make a living out of their profession.
The resistance we felt against this proposal has always been great. Certain stakeholders from the creative industries did not see their own business model of maximisation working in a landscape where part of the streaming remuneration would be paid directly to the performers. They sometimes went so far as to state that equitable remuneration is not equitable at all. But the argument most used was that a system of an unwaivable right to remuneration would not be in conformity with the directive, a statement that never received any legal justification, but did have an impact on the debate.
There is therefore no doubt that we warmly welcome Commissioner Breton’s response. It is not only a theoretical response, but also one with practical implications.
In his response Breton confirmed that “the Commission considers that, in principle, Member States could transpose article 18 through an unwaivable remuneration right”, provided that this “complies with relevant EU law, including the principle of contractual freedom, fair balance of rights and interests, and the exclusive rights in the copyright acquis”. The last of these has always been a central part of the proposals made by AEPO-ARTIS and its members at European and national level.
A different answer could not really have been expected. Unwaivable remuneration rights are already known in EU law and a remuneration right for the act of making available can therefore be perfectly integrated into the national legislation of each Member State. Spain, Italy and Hungary had already done this. Belgium and Germany, among others, have added this as part of their implementation of the directive. It is now clear once and for all that these countries have acted in accordance with the directive.
His answer also confirms that a literal implementation can never be seen as a correct implementation. This is clear from his statement that “Any provision implementing article 18 should secure appropriate and proportionate remuneration to authors and performers”, something that the literal copy-pasting of the wording of Article 18 (which several Member States have already done) does not achieve.
AEPO-ARTIS and its members will make every effort in the coming months to inform Member States that have yet to transpose the directive that an unwaivable remuneration right is indeed a choice that is in conformity with the Copyright directive. Moreover, we will point out to them that this is by far the most effective way to transpose Article 18 of the directive into national law and so far the only way to guarantee that the growing digital market acquires a place in the revenue model of every performer.
