Performers warn Member States against rapid implementation of the Copyright Directives

Performers warn Member States against rapid implementation of the Copyright Directive

On May 19th, the European Commission has taken the next step in the infringement procedure of the so-called Copyright Directives.

It has decided to send reasoned opinions to Bulgaria, Cyprus, Greece, Ireland, Latvia, Poland, Portugal, Slovenia, Slovakia and Finland over their failure to notify the Commission of transposition measures on the Online broadcasting and transmissions directive (2019/789).

The Commission has also today sent reasoned opinions to Belgium, Bulgaria, Cyprus Denmark, Greece, France, Latvia, Poland, Portugal, Slovenia, Slovakia, Finland and Sweden for failure to notify the Commission of transposition measures on Copyright in the Digital Single Market directive(2019/790).

Both Directives entered into force in June 2019 and had to be transposed by Member States by 7 June 2021. On 23 July 2021, the Commission opened the infringement procedure by sending letters of formal notice to 23 Member States that did not communicate complete transposition of the two Directives. The Commission now followed up with reasoned opinions for those Member States mentioned above.

The Member States who received a reasoned opinion today have two months to remedy the situation and adopt national transposing measures for both directives. Otherwise, the Commission may decide to refer these Member States to the Court of Justice of the European Union.

AEPO-ARTIS and the 650.000 performers represented by our members support the request from the Commission and the Parliament to work on transposing these directives without any further delay. Both directives aim to modernise EU copyright rules and to enable consumers, media distributors and creators to make the most of the digital single market. A reform of the online landscape of which performers are increasingly dependent is absolutely necessary.

Both the Copyright Directive (recitals 3, 72-73 ) and the Online broadcasting and Retransmission Directive (recitals 4, 15 and 18) are very clear in the fact that the new online exploitation possibilities should be a source of income for all right holders. They emphasize 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 copyright directives and urges member states to transpose this balance to the online environment. Even though it is the quickest way to avoid further steps in the infringement procedure, a literal implementation of these directives will not change the reality for European performers. The need for urgent transposition must not come at the expense of protecting the performers who are the face of our cultural sector.

This mainly applies to Article 18 of the Copyright Directive that introduces the principle of an appropriate and proportionate remuneration for performers when they transfer their exclusive rights. AEPO-ARTIS is convinced that this objective can only be achieved when performers are protected with an unwaivable remuneration right. This mechanism already exist in all EU member states for certain exploitations, but only few have made it applicable to the making available right, which is the legal basis for almost all online exploitations.

This also applies to Article 17 of the Copyright Directive. Although this article ensures that large platforms such as Youtube, Facebook and TikTok can no longer hide behind the safe harbour of the e-commerce directive, it does not provide any guarantee that revenues that result from this new obligation to pay, will be shared with the performers. 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. We would like to refer to the German legislation in this regard, as well as the current Belgian draft.

When transposing the Online Broadcasting and Retransmission Directive, care must also be taken to ensure that existing mechanisms that offer performers the opportunity to claim remuneration from end users through their collective management organisation are extended to new forms of exploitation. After all, it is not the intention of the Directive that when broadcasters and distributors use new technologies to serve their customers with the same content, this should lead to the loss of the guarantee for performers to be remunerated.

The Commission has given 14 Member States two more months to clarify how these directives will be transposed. A literal implementation 12 months after the implementation deadline would be a slap in the face to all European performers. 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. And all possibilities are known. It just comes down to making the right choice. Dare. Do.