Almost three years after the adoption of the Copyright Directive, less than 50% of Member States have transposed it, leaving performers in the dark as to the right on a fair remuneration as laid down in article 18.
On February 9th, 2022, Members of the European Parliament, performers and copyright officials from across the European Union met online to voice their concerns regarding the implementation of the Copyright Directive that guarantees fair remuneration to the performers. This summit highlighted the current hardship experienced by performers, with MEPs sending an urgent message to Member States that have not yet implemented change to provide proper remuneration to those who are the backbone of their Cultural and Creative sector.
For background, in April 2019 the European Parliament approved the Copyright Directive (2019/790) as part of the European Digital Strategy making the European Union a global digital player. The most important article for performers in this Directive is without a doubt article 18, which introduces the principle of a fair remuneration. Performers are entitled to an appropriate and proportionate remuneration. Today, the number of countries that have transposed the Directive is still only 10. And the criticism that the majority have limited themselves to literal transposition without introducing effective remuneration mechanisms to turn this principle into practice is unfortunately still valid.
MEP Alexis Georgoulis (GUE/NGL, Greece), board member of the Cultural and Creative Friendship Group (CCFG), emphasized this in his opening remarks: “It is disappointing that among the countries which have transposed the directive into their national law, sometimes the intention of the directive about protecting performers’ rights does not seem to be fully nor effectively implemented.”
This meeting served as a vital platform for performers to speak directly with MEPs and voice their concerns regarding the lack of change in the framework legislation dictating their livelihoods. Welcoming all participants, Laura Groeseneken, President of the Flemish Musicians’ guild, highlighted the urgent need for change, particularly at this time when most are unable to earn a living through live performances.
This dire situation continues despite, as MEP Georgoulis added, an explicit effort to change this in the past: “Nearly a year and a half ago, we, members of the CCFG, made a plea to the European Commission and to Member States to deliver on Article 18 of the EU Copyright Directive in an open letter. Months later, along with other colleagues, we adopted the resolution on the situation of artists, in which we identified the Copyright Directive as crucial for the recovery of the Cultural sector and pleaded for its immediate implementation by all Member States. “
Collectively Managed Remuneration Rights
Chair of the PayPerformers campaign Dominic McGonigal added further pressure for MEPs to make a call for action to Member States, highlighting the importance of implementing a remuneration right with mandatory collective management: “Article 18 can only be effectively transposed if Member States choose to implement the mechanism which was pointed out by several expert studies as the best way to appropriate and proportionate remuneration, remuneration rights managed by Collective Management Organisations (CMOs).”
McGonigal is calling on MEPs to deliver on their promise from 2019: “In 2019, the Directive on Copyright in the Digital Single Market (CDSM Directive) was adopted as MEPs recognised that performers were not getting fair remuneration. Consequently, MEPs put the right to be fairly remunerated in the Directive to protect all performers (Article 18).”
National Transposition of the Directive
Representing CMOs, Gregor Štibernik, Managing Director at AIPA (Slovenia), shared the frustration expressed by Dominic McGonigal and MEP Alexis Georgoulis. He emphasized that simply implementing the DSM Directive in a copy-paste manner is not effective “It is a frustrating situation because national governments are not listening and instead, are implementing the Directive without attention to the actual consequence of a literal transposition. The World Intellectual Property Office (WIPO) even stated that collective management is the best option to manage the rights of performers properly.”
The Spanish Mechanism and the Performer Perspective
As a renowned musician and singer with millions of streams of his performances online, Nacho Vega witnessed first-hand how poor legislation can negatively affect performers’ livelihoods: “In my case for example, the royalties that were declared to me by the three major labels in 2019 represented only 4% of my overall income. Before the streaming boom this could be up to 25-30% which is a huge difference from 4%. I know some artists that could make a living on these 25-30% of their total income. I don’t know any artist that could live on just 4%.”
Vega took the virtual floor and expressed his discontent at how Member States are moving forward with the transposition of the Directive. He provided MEPs and participants with a glimpse into what is possible with active change, describing the system in place in Spain, where since 2006, performers benefit from a remuneration right with mandatory collective management. He noted that this system effectively provides performers with a fair and equitable remuneration through their CMO: “This system has gained broad support between performers, academics and experts. Spotify has also confirmed that they continue to operate in the Spanish market even though this mechanism is in place.”
He added that “it’s essential that the Member States that haven’t transposed yet implement a consistent mechanism that regulates authors and performers in an appropriate and proportionate way, and the only system that has proven its effectiveness so far is an unwaivable remuneration right subject to mandatory collective management.”
MEPs Ready to Take a Stance
Following the call by performers and their representatives for Member States to implement Article 18 effectively, MEPs expressed their support. MEP Victor Negrescu (S&D, Romania), Vice-Chair of the CULT Committee, reiterated the crucial need for Member States to support performers: “Creators and performers need to focus on their work and what they’re good at rather than being burdened by financial instability and being worried about the survival of their families.” He added that “the Cultural and Creative sector is integral to the European economy and the European society” and reassured stakeholders present that they “could count on the support of the Parliament which is always ready to listen and find the best suitable solution for performers.”
MEP Negrescu was joined in this sentiment by MEP Ibán García del Blanco (S&D, Spain), also a board member of the CCFG: “It is fully recognised that the principle of Article 18 which guarantees authors and performers appropriate and proportionate remuneration aligns with the implementation of a remuneration right for the online exploitation of their works mandating collective management organisations to collect and distribute it.” MEP García del Blanco further expressed a strong desire and intent to work with Member States that have yet to transpose the Directive to help provide performers with appropriate remuneration: “Today only 10 Member States have implemented the Directive. In my view it is important to help those other Member States that yet have to do their homework and to do it as soon as possible as to speed up to support the creators.”
AEPO-ARTIS General-Secretary Ioan Kaes emphasized that “Covid exposes the painful situation that has been existing for years. It merely shows the urgency to work on a new model for online exploitations. An online environment run by exclusive rights only has proven to be ineffective and not inclusive.” He stated that – while thanking the MEPs for their many initiatives in support of performers – the Commission is sending opposite signals giving Member States room to not react, raising an important question: “What else can we do? What is the next step that we can take to convince Member States to take the option of a collectively managed remuneration right into consideration as part of a model that serves all?”
MEP Negrescu, MEP García del Blanco and MEP Georgoulis have vowed to work hand in hand with performers and stakeholders to uphold the intent of Article 18, confirming that this Summit was instrumental in strengthening the already existing cooperation between the EU Parliament and performers. Over the next months, the PayPerformers campaign and supporting MEPs will work together to advance performer rights, answering hopefully the true demands by thousands of performers EU-wide.