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 President,

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. 

Ioan KAES

General-Secretary

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.

Ljubljana, 26 May

The European audiovisual industry needs modern legislation that will reflect the rapid development of digital technologies on the market, agreed participants of a regional conference on copyright. They called for the implementation of the EU copyright directive on the single digital market and a mechanism that would protect artists.

Decision-makers in EU countries have a historic opportunity to support the European culture and creativity and create good conditions for creativity, heard the conference on the copyright directive organised by the Association of European Performers’ Organisations (AEPO-ARTIS), the Screen Actors Guild of Slovenia and the AIPA, an organisation of rights holders, in Ljubljana on Wednesday.

This can be achieved through a good legal basis that will allow artists to get fair and proportionate compensation for the use of their works and the 2019 EU copyright directive enables this. Now it is up to EU countries to decide to what extent they want to protect their artists in the audiovisual industry, stressed the participants.

During the Covid-19 pandemic the use of digital technologies increased significantly. In countries which have good copyright systems artists survived the crisis a lot easier while in other countries artists’ social issues only deepened, said some of the participants, highlighting Spain as a role model.

According to José Maria Montes from the Spanish collective organisation of audiovisual artists AISGE, the Spanish audiovisual industry has seen enormous success in the past decades. Its production has turned Spain into a global player in culture and economy, which also means more production and higher revenue.

This was possible because of good legal foundations, as Spanish artists have had the right to compensation for four types of use of their work, including online use, since 1996.

Their German counterparts would like the same level of protection. However, by implementing the directive the state enabled them to be compensated for the use of their works on platforms for files exchange such as YouTube but not for the use on streaming platforms such as Netflix, HBO Max, etc., said the director of the German music copyright collection society GVL and AEPO-ARTIS head Tillo Gerlach.

Despite the law being passed, in reality artists do not receive compensation even from YouTube, as licensing of works is complicated, which is a result of legislation that did not set detailed rules.

AEPO-ARTIS secretary general Ioan Kaes said that one of the key challenges that European audiovisual artists face was the lack of appropriate legislation that would introduce rules for fair play on the market, including compensation. “Currently only 14 out of 27 EU countries have implemented the directive and Slovenia is not among them,” he said.

AIPA head Gregor Štibernik said the conference was extremely important for all copyright holders. “This conference is sending out the message to decision-makers that the audiovisual sector wants the directive to be implemented in a way that would enable all audiovisual artists to be as creative as possible.”

Robert Kordič, a copyright expert from CBS, presented a proposal for transposing the directive into Slovenian legislation. He said the proposal brought more rights for artists, primarily the right to fair and proportionate compensation for the use of their work.

Pal Tomori from the Hungarian Performer’s Rights Protection Association Office presented a system of expanded collective management, which has been implemented in Hungary. The system allows everyone who thinks they can manage their rights better to exit the collective organisation, he said.

STA (Slovenian Press Agency)
Photos by: Tamino Petelinšek/STA

On the 2022 World Intellectual Property Day, the Court of Justice of the European Union issued its ruling on the case against Article 17 of the Copyright Directive (C-401/19). Poland had brought that case before the court hoping for the declaration of its illegality on the basis of an alleged infringement of the right to freedom of expression and information.

Article 17 is without a doubt the most discussed article of the most discussed EU directive in recent European history. It was introduced with the main purpose of closing of the so-called value gap, a term used to point out the enormous difference in the unprecedented profits major online platforms such as Facebook, Youtube and TikTok make by providing access to vast amounts of musical and audiovisual content and the almost complete lack of remuneration for the right holders of that content.

The obligation to install so-called filters that make it possible to more quickly detect and possibly block unlicensed content was seen by many as the end of the right to free speech and even the end of the internet, a view shared by Poland.

The Court did not follow Poland’s reasoning and ruled that the obligations for the online content-sharing service providers (OCSSPs) have been accompanied by appropriate safeguards in order to ensure the respect for the right to freedom of expression and information of the users of those services and a fair balance between that right, on the one hand, and the right to intellectual property on the other.

Many stakeholders in the creative industries are understandably delighted with the judgement and now call upon Member States to transpose the directive without further delay and without any deviation from the language of the directive, which allegedly has all the necessary safeguards.

Performers and their collective management societies, are however less enthusiastic about the completeness of article 17.

The reality is that where article 17 creates an enormous new revenue stream for the creative industries, the bare wording of article 17 itself has failed in its well-intentioned aim to provide a guarantee that all right holders are entitled to a part of this. And that applies above all to those right holders who are primarily targeted by Article 17(2) of the Charter of Fundamental Rights of the European Union: the human beings (not the corporations) behind the content, including a large number of performers. Performers are known to be in a weaker negotiation position when transferring their (human) rights to producers, including the rights that allow producers now to permit the use of their performances by these so-called OCSSPs.

When the Court states that “Member States must, when transposing Article 17 of Directive 2019/790 into their national law, take care to act on the basis of an interpretation of that provision which allows a fair balance to be struck between the various fundamental rights protected by the Charter.” Member States have an obligation to find a balance between the rights this charter offers the human beings that are part of this society, as creator or as user.

Article 17 is not drafted in a way that naturally enforces this balance. It has not been prepared taking into account the rights conferred by the EU Charter. It has been prepared solely with the guidelines on copyright and neighbouring rights in mind. Rights that – unlike human rights – are transferable and negotiable. A literal transposition is therefore no guarantee that the task that Member States receive from the CJEU will be fulfilled. More is needed.

However, achieving that “more” is not a difficult task for member states to fulfil. At the moment 3 Member States have already foreseen that “more”. Spain already had a generally applicable right to remuneration for performers, which now also applies to the OCSSPs. With a view to guaranteeing the right to fair remuneration as laid down in Article 18 of the Copyright Directive, Germany has introduced a new right to remuneration for authors and performers that guarantees them a direct share of the new revenue stream article 17 initiates. And finally, Slovakia has recently introduced a limited version of that German example.

Three countries is not enough. All member states should transpose article 17 in a way that closes the value gap for all right holders, including performers. And there are grounds to argue that Article 18 even requires them to do so!

AEPO-ARTIS, together with the 650,000 performers its members represent, welcomes the ruling of the Court but calls on the Member States to include their fundamental right to be fairly remunerated in the balanced transposition of Article 17.