On September 8th 2022, the Court of Justice of the European Union issued its ruling in the case between the Federation of the Spanish Digital Industry sector (AMETIC) and Ventanilla Unica Digital (VUD), the Spanish one-stop-shop for the collection and distribution of the private copy levy (C‑263/21).

AMETIC had brought that case before the court hoping for the declaration of the illegality of the one-stop-shop that the collective management organisations for performers, authors, producers, and publishers had set up together to collect and distribute the private copy remuneration in Spain. The court completely dismissed the complaint in a short and unquestionably clear judgment.

While in almost all European member states the collection and distribution of the private copy levy has been running without problems for years via a one-stop-shop set up by the collective management organisations of the different categories of right holders: performers, authors, producers and publishers, in Spain this is only a recent phenomenon.

Until its abolition in abolition in 2016, Spain had financed the private copy remuneration from its General State Budget. In 2017, a royal decree obliged the Spanish CMOs to set up a one-stop-shop (VUD) to organise the collection and distribution of the private copy levy directly with the users. And in 2018 a second royal decree determined the conditions under which VUD had to organise the exemptions and reimbursements to which certain users were entitled (see C‑467/08 Padawan).

AMETIC was of the opinion that the fact that the granting of the exemptions and reimbursements was done by VUD itself constituted a conflict of interest. It considered it unlawful that there is a legal obligation for VUD to consist of the copyright management entities only and claimed that VUD had exorbitant powers, by virtue of which it can demand from applicants for an exemption or reimbursement, specific information on their activities.

This led to a twofold reference for a preliminary ruling by the CJEU.

1. Is the composition of a one-stop-shop, as imposed by Spanish law, compatible with Directive 2001/29/EC or, more generally, with the principles of the EU Law?
2. Is it compatible with Directive 2001/29/EC or with the general principles of EU Law to grant such one-stop-shop the power of requesting information, including accounting information, from those who apply for the certificate of exemption from the private copying compensation payment obligation?

In its judgment, the CJEU is very short and clear in stating that the exemption and reimbursement are rightly regarded as part of the general task of collecting and distributing the private copy compensation for right holders and that this task can only be assigned to organisations that represent those same right holders and are under their control. The court additionally confirms that this organisation can only perform such task correctly if it has the correct information to check whether an exemption or reimbursement is justified in accordance with the legally determined parameters and that the organisation has no discretion in this regard, but can only perform an objective control of those parameters.

As a result, it rules that:

1. The European Copyright framework and the principle of equal treatment must be interpreted as not precluding national legislation under which a legal person established and controlled by intellectual property rights management organisations is entrusted with the management of (i) exemptions from payment in respect of compensation for private copying and (ii) reimbursements in respect of such compensation […].
2. The European Copyright framework and the principle of equal treatment must be interpreted as not precluding national legislation which empowers a legal person, which is established and controlled by intellectual property rights management organisations […] to request access to the information necessary for the exercise of the powers of review conferred on it in that regard […].

AEPO-ARTIS welcomes this ruling. “This judgment positively confirms the legality of the model in use in most Member States whereby CMOs of performers and other right holders join forces to provide users with a transparent, user-friendly and non-discriminatory service that allows them to fulfil their obligations towards right holders.” says Ioan Kaes, General Secretary of AEPO-ARTIS.

The Spanish performers’ CMOs also reacted positively. “This decision is great news to improve the development of private copying in Spain. Together with the recently signed agreement with equipment manufacturers and importers to increase levies 50% we are convinced that we can reinforce the efficiency of the management of performer rights” says José Luis Sevillano, General Director of AIE.

“The decision is extremely positive not only for Spanish CMOs, but for all other European CMOs and the right holders they represent. From this decision it is now clear that national legislations in the EU may provide the possibility of CMOs to incorporate a “one-stop-shop”, controlled by such CMOs, for the management of private copy levy, including the exceptions from payments and the eventual reimbursements. And, more importantly, the decision declares that such “one-stop-shop” should be able to carry out verification processes, with no possibly for the manufacturers to refuse access to the corresponding accounting information, alleging the confidentiality of their business accounts.” says José Maria Montes, Director of Legal and International Affairs at AISGE.

Read the full decision on the website of the CJEU.

Today, June 7th, 2022, is a big day for performers’ rights.

It is explicitly stated in the new Copyright Directive that as of today, for all new contracts, performers and authors are entitled to receive transparent information from the producer (film producer/record label) about the use of their performances and works.

And not just that. From now on, all member states must ensure that this happens.

Of course, this is only fair. As the directive says: “Authors and performers need information to assess the economic value of rights of theirs that are harmonised under Union law.”

The good news

The transparency obligation (article 19 of the directive) says that performers and authors are entitled to “receive on a regular basis, at least once a year, and taking into account the specificities of each sector, up to date, relevant and comprehensive information on the exploitation of their works and performances from the parties to whom they have licensed or transferred their rights, or their successors in title, in particular as regards modes of exploitation, all revenues generated and remuneration due.”

In simple words this means that as a performer you are entitled to know the details of the bigger economic story your performance is part of.

But… the directive is like a contract. You have to read the small print.

The bad news

The transparency obligation doesn’t mean that you are entitled to a better remuneration. If you were only able to negotiate bad remuneration with your producer, you will only be entitled to get more information on how bad it really is.

And… you only get the transparency information if the producer does not push one of the “escape buttons” that the directive provides.

Does the producer feel like it is an administrative burden? Then he/she is exempt from the obligations.

Does the producer consider your contribution to not be significant? Then he/she is exempt from the obligations.

Even when the negotiations are organised through official collective bargaining, these escape buttons keep on existing.

BUT please remember: collective management organisations are there to help. CMOs have no possibility to push these escape buttons. And they don’t need any. Administrative burden is their business and for CMOs each performer is significant. So contact your local CMO!

It has been over a month since the invasion of Ukraine started, leaving the world shaken and in disbelief, changing it forever. Over ten million people left their homes in search of safer places for them and their families, many of those are artists and performers as well as many working in related industries.

One of those people is also our colleague Natalia Teslia, who, escaping the war and bombing in Kyiv, found her refuge in Poland, with help of her many colleagues from the CMO community.

Since the New Year when the news of a possible Russian invasion came out, Natalia, who is working on international agreements and international distribution in Ukrainian largest CMO ULCRR – Ukrainian League of Copyright and Related Rights, has been living in fear. Remembering what happened in Donetsk and Luhansk in 2014, she started preparing for the worst, but hoping for the best. Unfortunately, her deepest fears came true when on 24th of February she was woken up by the sound of the explosions and realized she needed to leave.

She made her way to Kremenchuk, to meet with a friend with whom she decided to seek safety at a countryside as they considered it to be safer than the city. They already had some food supplies with them as well as power banks and other necessities, once there, they were collecting wood for cooking and heating, however, being constantly under alarms and danger, they realized they weren’t safe there either and decided to make their way to the Polish border.

By that time Natalia was already in contact with colleagues at several CMO’s. In 2021 ULCRR became a member of SCAPR and everyone was asking how she was doing and offering support.

“That was really touching, and it really matters, that kind of communication and support.”, she explains, remembering the hardships like endless lines, strict curfews, bomb alarms while attempting to reach the Polish border but also incredible displays of solidarity and support like help with free accommodation and food which truly gave her inspiration and strength to continue to safety.

And one of the most inspiring and welcoming communities was that one of the CMO’s as people really showed they cared and wanted to help: ‘I had a contact with Bogusław Pluta from Polish CMO ZPAV (Polish Society of the Phonographic Industry) who was a volunteer meeting Ukraininans on the border, helping them find accommodation. And he was not the only one helping – Anna Błeszyńska-Drewicz from the Polish CMO SAWP offered accommodation for her and her friends.

“I can’t find even words, for all the care, support and welcoming.” she added.

During all this time, Natalia stayed in contact with her colleagues – some of which, like herself, managed to escape to safer areas and others, mostly men, staying in Ukraine. And though ULCRR CEO Oleksandr Nikin formally suspended their activities as of 1st March, with employees being able to receive some help from the state and all the collections have stopped, ULCRR still managed to make a distribution even in these times of war. Natalia’s colleague from the distribution Sergiy Smirnov joined the army two days before the start of the invasion, and beginning of March, while being in the army during the day, he still managed to do the distribution during the night knowing many artists were depending on it. “I don’t know how he managed to do it. We are all very proud of him.”, she says.

A great help has also been Agnieszka Parzuchowska from STOART, who is in close contact with both Natalia and colleagues from other CMO’s and SCAPR trying to find possibilities to help not only their colleagues but also Ukrainian performers and young musicians. Many of them are trying to ease the difficult everyday reality of their fellow Ukrainians. “For example, our member Maria Burmaka is in Kyiv and posts every day, she does online evenings for children, playing guitar, singing songs, just to make children feeling better.”, says Natalia deeply moved by everything her colleagues are doing. “Everyone just wants that Russian troops were defeated as soon as possible and Putin’s regime received an assessment in international law and that children would never been killed and terrified anywhere else in the world.”, she concludes.

Other performers, like Tina Karol, who managed to escape to safety to other countries are trying to help by participating in concerts and events raising funds to help for Ukraine.

“Everyone is doing the most they can.”, agree Natalia and Agnieszka. And though the activities of ULCRR are currently suspended, Natalia continues to work for the performer’s community now shifting her tasks to ones related to war – identifying the performers both in Ukraine and abroad who need help.

The world has come together to show support for Ukrainians. On 8th and 9th of April, the European Commission is organizing ‘Stand Up For Ukraine’ a social media rally in partnership with international advocacy organisation Global Citizen, with performers worldwide such as Billie Eilish, Chris Isaak, Radiohead and many more joining to raise funding in support of people fleeing the invasion of Ukraine.

Ukrainian President Volodymyr Zelenskyy, a member of the performers’ community himself is also a part of the campaign saying in a statement: “On April 9, the biggest online ‘Social Media Rally’ ever will support people who were forced to flee Ukraine. I’m inviting everybody: musicians, actors, athletes, businessmen, politicians, everybody. Everyone who wants to join this movement and stand up for Ukraine.”

For more details on the rally and how you can support, please see here. We can only hope that this senseless war ends soon.

 

Worldwide COVID-19 has hit the cultural industries hard. Very hard. However, collective management succeeded in limiting the impact for performers. A survey that AEPO-ARTIS and SCAPR conducted among their members came to the conclusion that despite of a general drop in revenues, collective management organisations (CMOs) for performers were able to increase their distributions while looking for all ways possible to help out performers in need.

An overall decline in collections in 2020.

The vast majority of societies for the collective management of performers rights have experienced significant variation in their collection in 2020 (as compared to 2019) with an average 9% decrease. This is comparable to the impact of the crisis on collective management for authors rights, which was recently calculated by CISAC at 9.9%. This decline cannot be underestimated, but thankfully below the forecasts CMOs made themselves in 2020.

When we compare the different sources of income of CMOs, it is striking that the income from public performance has been hit particularly hard. 88% of the organisations have seen this collection significantly drop (up to -85%). With the cultural sector forced to staying closed even long after ending lockdowns, this was no surprise. Collection of broadcasting rights remained generally stable, however 39% did declare a decrease, mainly due to a drop in advertising investments from the broadcasters. Other traditional sources of income for CMOs, such as private copying, lending, renting and cable retransmission, remained mostly stable and have permitted CMOs to slow down the general decline.

Less in, more out!

Despite the general drop in revenue, from 848 million euro in 2019 to 776 million euro in 2020, CMO’s were able to stabilise the amounts they distributed in 2020. What’s more, half of them managed to pay their actors, musicians and dancers higher amounts than initially planned.

70% of CMOs have adapted their operations to better help their members in times of crisis. 61% brought forward distributions, 36% made additional efforts to lower their administrative costs. As a result the effective payments to performers increased from 585 million in 2019 to 664 million in 2020.

Limits to the engine

With the way their collections and distributions are organised, performers CMOs have been able to slow down the negative income curve for performers in 2020. However, with a drop in collections in 2020 and 2021, they will not be able to keep distributions at the same level in the years coming.

The majority (68%) of the societies that are able to predict future distributions anticipate a decline in payments, reflecting the drop in collections. Again, societies representing sound recording artists are more affected than audiovisual only societies. However, 64% of the respondents are still making efforts to bring the distribution forward (40%), to reduce operational costs (47%) and/or to maintain emergency funds (37%).

It is therefore disappointing to see that these organisations, that have proven to do everything in their capacity to assist the most affected sector, are themselves often left in the cold. 63% of CMOs have reported not being recognised as eligible to any emergency measure by their local authorities. This is all the more painful knowing that 56% of CMOs have consented (or have been forced to consent) to discounts, delays, exemptions or even refunds to users, mainly for public performance users. It is these exceptional measures that have impacted the collection of about 70% of all CMOs and have caused up to a 75% decrease of collection in certain areas.

While the members of SCAPR and AEPO-ARTIS have not been able to turn the crisis into a success story like some major online players have, they have shown to do what they were founded for: put the interests of performers first and be a stabilising factor in the turbulent career of the artist, even in the most turbulent times.

For more information please see press release here.

 

AEPO-ARTIS has published an animation summarising why performers’ remuneration rights and their collective management are important: https://vimeo.com/5060198 (et disponible avec des sous-titres en français ici: https://vimeo.com/543120344 )

 

 

On 17 March 2021, European collective management organisations and their members came together to discuss how to secure fair remuneration for performers and audiovisual authors. 12 European performers, screenwriters and directors contributed with a clear message that they need their collective management organisations to be involved in the implementation of Article 18 of the Copyright Directive.

Watch the video from performers and audiovisual authors here.

THEIR MESSAGE (TRANSCRIBED):

In 2019, the EU adopted the Directive on Copyright in the Digital Single Market.
Article 18 of the Directive obliges Member States to make sure that we – authors and performers – receive fair remuneration for the exploitation of our work.
We call on Member States to implement this Directive properly and to ensure we receive fair remuneration.
We invest our passion, time, and money into our projects, but we rarely benefit from its success, particularly online.
So far, streaming and downloads have not given us the returns that we deserve.
Alone, it is difficult to defend our rights and royalties against the big on-demand platforms.
Together, as members of Collective Management Organisations, we are stronger and can make sure our rights are respected.
CMOs manages authors and performers’ rights on our behalf and in our best interest. They are our safety net.
We trust CMOs to defend our rights, negotiate with users, collect and distribute our royalties.
Article 18 would create an income stream for authors within the audiovisual sector and for all performers across Europe, independent of our contractual arrangements, and managed by our CMOs.
We deserve to be fairly remunerated for our work, right? Right!

 

IN THE VIDEO:

Robert Alberdingk Thijm, screenwriter, the Netherlands
Barbara Białowąs, director, Poland
Isabel Blanco, actress, Spain
Anne Bouvier, actress, France
Sebastian Cavazza, actor, Slovenia
Luc Dardenne, director, Belgium
Neil Dudgeon, actor, UK
Marie-Castille Mention-Schaar, director and screenwriter, France
Gregory Montel, actor, France
Katharina Mückstein, director, Austria
Kasia Rodowicz, singer, Poland
Ivana Sujova, screenwriter, Slovakia

The event was organised by the Association of European Performers’ Organisations (AEPO-ARTIS) and the Society of Audiovisual Authors (SAA), and supported by the European Parliament’s Cultural Creators Friendship Group (CCFG).

Quotes

“To make art is a hard work. It takes months, years to write a book or a screenplay. I live with my story night and day. I have no time left for negotiating or managing my rights. Writing for film and TV is a very isolated and competitive profession. That’s why I joined my CMO when I was a young author, otherwise I would be alone”.
Jochen Greve, screenwriter, Germany

“Unity is strength. Collectivity is the key here. CMOs can offer a common response and legal solutions to global troubles. I think CMOs are the strong arm that performers can hold onto during their whole career, in the good times and the bad”.
Nacho Garcia Vega, musician, Spain

“I have taken a new initiative, aiming at the establishment of a European Label or Certificate, for the platforms that play-and-pay fairly. With such a sign or a badge, citizens are informed and may make a consumption choice, and thus, prefer platforms that pay artists according to their played content.”
Alexis Georgoulis, actor and MEP (GUE/NGL, Greece)

Note to editors

AEPO-ARTIS – is a non-profit making organisation that represents 36 European performers’ collective management organisations from 26 different countries. The number of performers represented by the 36 member organisations of AEPO-ARTIS can be estimated at between 400,000 and 500,000.
Press: Nicole Schulze, aepo-artis@aepo-artis.org, +32 2 280 19 34 @aepoartis

SAA – the Society of Audiovisual Authors is the association of European collective management organisations representing audiovisual authors. Its 33 members in 25 countries manage rights for over 160,000 film, television and multimedia European screenwriters and directors. Press: Annica Ryngbeck, a.ryngbeck@saa-authors.eu, +32 475 66 95 94. @saabrussels #WeLoveAuthors

CCFG – the Cultural Creators Friendship Group is a cross-partisan coalition in the European Parliament with members from six different political groups. We aim at improving the whole European cultural ecosystem, such as the Cultural and Creative Sectors and especially the situation and conditions of creators, for example authors, performers and artists.
@CultCreatorsEU

 

 

AEPO-ARTIS ONLINE SEMINAR CONCLUDES THAT MEMBER STATES MUST REBALANCE THE STREAMING MARKET IN FAVOUR OF PERFORMERS BY INTRODUCING UNWAIVABLE REMUNERATION RIGHTS

BRUSSELS, 17 November 2020: AEPO-ARTIS put performers’ rights at the centre of the debate at its online seminar “Performers and performers’ rights: How can we create a sustainable creative eco-system in Europe?” today.

Performers are the backbone of Europe’s rich cultural and creative sector. However, the current COVID-19 pandemic is a reminder just how fragile the creative ecosystem is, with many performers forced to consider giving up their profession as their art can no longer support them. Now more than ever, it is crucial that the legal framework protecting performers is strengthened.

MEP Niklas Nienass set the tone very early on in the discussion by asking how it is possible that only 1% of performers receive the equivalent of a minimum wage from streaming services.

As Member States are now implementing the 2019 EU Copyright Directive and in particular its article 18, which guarantees performers appropriate and proportionate remuneration – especially from streaming, the question is how this can be best achieved.

The exchanges following were very clear. “The EU is placing this important issue in the hands of national legislators. It is a great opportunity for Member States to set this right and secure appropriate and proportionate remuneration for performers” said Professor Raquel Xalabarder of the Universitat Oberta de Catalunya.

She recommended that, following her research[1], Member States should implement article 18 by introducing an unwaivable remuneration right for performers for on demand uses and paid by digital platforms. A system which is not new to EU law as was confirmed by Marco Giorello, head of the copyright unit at the European Commission.

Jose Maria Montes, Vice President of AEPO-ARTIS confirmed that this model is already in operation in Spain and that both AISGE and AIE, the Spanish performers’ collective management organisations, are successfully collecting remuneration from streaming platforms on behalf of performers without any negative impact on the market or on subscription fees of consumers.

Member States have to implement the Directive by June 2021 into their national laws. AEPO-ARTIS calls on them to create a sustainable streaming market, where performers are fairly and proportionately remunerated. The unwaivable remuneration right, managed by performers’ CMOs and paid by digital platforms, is a solution to rebalance the market that is simple, efficient and fully in line with the EU acquis.

It is crucial that Member States ensure that the 2019 Copyright Directive results in an actual improvement of the situation of performers. The status quo is not acceptable!

A recording of the event is available here: AEPO-ARTIS Webinar 17 November 2020

The press release is available here: Aepo-Artis Online Seminar – Press Release

 

For more information please visit www.aepo-artis.org or contact Nicole Schulze +32 487 25 09 51

 

[1] https://indret.com/wp-content/uploads/2020/10/1591.pdf

PRESS RELEASE: Brussels, 7 November 2018:
The Association of European Performers’ Organisations, AEPO-ARTIS, held its annual seminar dedicated to “EU Copyright Acquis: 25 years of harmonisation. What is working for performers and what is not?” on 7 November 2018.

The AEPO-ARTIS seminar, amongst other issues, took stock of the European Commission’s proposal For a Directive on Copyright in the Digital Single Market, which is now being discussed in trilogue between the Council, the European Parliament and the European Commission.

In this regard, the fair remuneration of performers from on-demand services (iTunes, Netflix, Spotify, …) was at the heart of the discussion.

Supported by the findings of the 2018 AEPO-ARTIS study drawing upon data from 26 countries, available on the AEPO-ARTIS website, the economic situation of performers has barely changed after the introduction of the exclusive making available right in the 2001 Copyright Directive. The right is generally transferred in buy-out contracts to producers, with only few famous performers managing to negotiate the payment of royalties.

For most performers, however, this right has not been effective in practice despite the exponential growth of on demand streaming and download services, such as Spotify, iTunes and Netflix, in popularity, revenue and value. Performers are missing out of their fair share in this value uplift.

This is reflected in the findings of the AEPO-ARTIS study where it can be seen that in 2005, collections in respect of on demand services were effectively zero and by 2017, the amount collected by collective management organisations still only amounted to less than 2% of total collections. The EU law designed to protect and adequately reward performers has therefore failed.

Xavier Blanc, Secretary General of AEPO-ARTIS, partner of the FAIR INTERNET campaign, which represents over 500,000 performers across Europe, said: “It is unacceptable that still today the majority of performers receive no remuneration from downloading /streaming services such as iTunes, Spotify, Netflix, … EU legislators must free performers from the trap of their contracts”.

AEPO-ARTIS is pleased that the concern of over 500.000 performers in Europe has finally been heard by the European Parliament which introduced a new article -14 to the draft Copyright Directive.

This article asserts the principle that all performers should be paid a fair and proportional remuneration for all modes of exploitation, including for on-demand uses, and sends a clear signal against persistent and unacceptable buy-out practices.

While the European Parliament, unfortunately, falls short of granting performers an unwaivable right to receive remuneration directly from service providers making their performances available on demand, it nevertheless encourages Member States to achieve this aim by way of statutory remuneration mechanisms.

“We are grateful to the members of the European Parliament who are trying to make a real difference to performers in Europe and create a fair and stable creative industry for those at the heart of the value chain” concluded Tilo Gerlach, President of AEPO-ARTIS. “Article -14 is a first step in the right direction towards more equitable remuneration of performers that will be secured from on demand services through collective management which will hopefully be endorsed in the coming weeks during the trilogue negotiations”.

For more information:

Visit www.aepo-artis.org or contact
Nicole.Schulze@aepo-artis.org
+32 487 25 09 51

On 5 December 2016, AEPO-ARTIS and key representatives of the FAIR INTERNET campaign, gathered at the Solvay Library in Brussels, to take stock of the Commission’s draft Directive on Copyright with European Commission officials, Members of the European Parliament and Member States’ representatives.

The fair remuneration of performers from on-demand services (iTunes, Netflix, Spotify, …) was at the heart of the discussion with unanimous support from performers for the European Parliament and Member States to make key changes to the current draft Directive.

Xavier Blanc, Secretary General of AEPO-ARTIS said:

“The European Parliament and Member States have a once in a life time opportunity to ensure hundred of thousands of performers across Europe receive a fair share from on demand services. If unchanged, most performers in Europe will continue to be excluded from a thriving digital market receiving merely a symbolic fee for all types of exploitation of their performances and no additional payment for making their work available for on-demand services”.

 

Katja Holm, Danish actress and president of the Danish Actors Union added:

“Actors do work a lot in the limelight but it is often forgotten that, throughout their career, they face a very uncertain professional future. I am here in Brussels to express my support to the Fair Internet Campaign and to call on European legislators to honour their political commitments by ensuring that all actors can make a decent living from their work. We need EU law to also include a statutory right to be remunerated for the streaming/downloading of performances, which would guarantee that actors like me are treated fairly in the digital environment”.

Swedish artist Katarina Henryson, singer and founding member of the Real Group, performing on the night, concluded:

“Musicians, singers, actors, dancers, … are at the heart of creation. With more and more on-demand services being developed, performers, like me, rely on their rights to earn a living. Sadly, most of us do not get a fair share for the actual use of our performances via download and streaming services. European legislators have been sympathetic to the cause of artists. They now need to translate their words into action and introduce in the draft Directive on Copyright a right to remuneration for performers payable by on demand services and collected by performers’ collective management organisations”.

 

⇒ GIVE PERFORMERS THEIR FAIR SHARE!