With Czech Republic taking over presidency of the European Union, AEPO-ARTIS wrote an open letter to the Czech President with the goal to draw attention to the important issue of improving performer’s rights.
Read the full letter below.
Dear Mr Zeman,
In the next six months, the Czech Republic will hold the presidency of the Council of the European Union. We are grateful for the ambitious programme and we are confident that the Czech Republic will achieve its goals, especially when it comes to culture.
AEPO-ARTIS is a non-profit making organisation that represents 37 European performers’ collective management organisations from 27 different countries, including the Czech organisation INTERGRAM. The number of performers, from the audio and audiovisual sector, represented by our 37 member organizations can be estimated at 650,000.
We are happy to read that the Czech Presidency will strive to continue to prioritize the status of the artist. The protection of individual artists is the absolute starting point of a vibrant and strong culture. And the intellectual property rights of our individual artists are central to this.
In its October 2021 resolution on the situation of the artist, the European Parliament identified the so-called Copyright Directive (Directive 2019/790) as crucial for the recovery of the cultural sector and pleaded for its immediate implementation by all Member States, in particular to ‘guarantee fair, appropriate and proportionate remuneration for authors and performers.’
This directive was adopted by the European institutions in April 2019 as one of the pillars for a fair digital single market. However, half of the Members States, including the Czech Republic, still have to implement this directive.
Recently the Commission initiated the second step in the infringement procedure against the Member States that will have to implement during your Presidency and will look to the Czech Republic for guidance. Since the Czech draft is an example of a literal transposition, we ask you to review this approach and take a different path together with the other Member States.
The choice for a literal transposition by means of a mere copy/paste of the directive into national legislation is a choice against performers and a curtailment of their possibilities to make a living out of the online exploitation of their work.
The directive (recitals 3, 72-73) is very clear in the fact that the new online exploitation possibilities should be a source of income for all right holders. It emphasises the need to adapt and supplement the existing Union copyright framework, while keeping a high level of protection of copyright and related rights in the digital environment.
However, rather than offering new concrete rules, the European legislator refers to the balance that it has achieved through years of harmonization via various copyright directives and urges Member States to transpose this balance to the online environment. To this extent, articles 17 and 18 both introduce pro-active obligations and provide that “Member States shall” provide the mechanisms to guarantee the effectiveness of the principles.
Article 18 introduces the principle of an appropriate and proportionate remuneration for performers when they transfer their exclusive rights. In its resolution on the status of the artist, the EU Parliament stated that the implementation of this article must be accompanied by the introduction of effective mechanisms. AEPO-ARTIS is convinced that this objective can only be achieved when performers are protected with an unwaivable remuneration right. This mechanism already exists in all EU Member States for certain exploitations, but only a few have made it applicable to the making available right, which is the legal basis for the majority of online exploitations.
Article 17 obliges Member States to ensure that large platforms such as YouTube, Facebook and TikTok no longer hide behind the so-called safe harbour of the e-commerce directive. This article also does not provide any guarantee that revenues that result from this new obligation to pay, will be shared with the performers. It is up to the Member States to provide this. Here too, the introduction of an unwaivable remuneration right that performers can obtain through their collective management organisations is the best – if not the only – solution to guarantee that performers receive an appropriate and proportionate remuneration.
Even though it might look like the quickest way to avoid further steps in the infringement procedure, a literal implementation of these articles will not change the reality for European performers at all. The need for urgent transposition must not come at the expense of protecting the performers who are the face of our cultural sector.
Transposition must be accompanied by additional specific measures that will effectively achieve the goal of the relevant articles. It must be remembered that the Commission will carry out a conformity check to ensure that all Member States have transposed the directive in a way which is compliant with the obligations the directive creates. Member States that do not include these additional specific measures may fail this conformity check and will leave themselves open to future infringement proceedings from the European Commission.
We hope that the Czech Presidency will succeed in guiding all Member States towards a correct transposition of the directive in the next six months, starting with a correct implementation in your own country.
An example of a country which has correctly introduced the necessary additional specific measures and has therefore properly implemented the directive (on 16 June 2022) is Belgium. It rightly resisted pressure to opt for a literal transposition and although this meant that it failed to respect the deadline for implementation, it succeeded in both improving the rights of performers and complying with the requirements of the directive. In brief, it has achieved an effective and compliant transposition of the directive and received the full support of the different artist communities throughout Europe.
Finally, we hope that during your presidency the EU can work on eliminating the last existing discriminations between actors and musicians. Firstly, by extending the term of protection for audiovisual performances to 70 years in the context of the revision of Directive 2011/77. There is no explanation whatsoever why audiovisual performances are still protected for only 50 years, while musical performances can count on 70 years. Secondly, by achieving a breakthrough in the ratification of the Beijing treaty by the European Union.
For musicians and actors, the digital environment of on-demand and streaming is still the place where they are least protected. During your presidency they must not be forgotten as a category of digital stakeholders that need economic protection.
Provide those who give European culture a face, with the economic protection they deserve. Not with words, but with actions. Give European artists a digital future by implementing the Copyright Directive with the same dedication and passion they make your culture! And without allowing any further discrimination to exist.
On behalf of every musician and actor whose performance you have ever appreciated.