Earlier this week, the Committee on Economic Affairs of the Slovenian Parliament approved the draft law implementing the CDSM directive 2019/790, bringing the total amount of countries that have completed the implementation almost to 17.

AEPO-ARTIS is delighted to see that Slovenia is joining the growing list of progressive European countries such as Spain, Belgium, Italy that have granted performers a right to equitable remuneration for streaming. The Slovenian draft introduces such a right to Slovenian actors.

However, it is equally important that Slovenian musicians are also granted this right.

At the moment, when a record is played on the radio, all musicians that contributed to this recording get paid equitable remuneration. However, when the same song gets played on a streaming platform like Spotify, no equitable remuneration is payable. Why this difference, one might think? For the listener, the legal technicalities of listening to a song on the radio or on Spotify are irrelevant. They want to enjoy the music and hope that the performers get paid fairly. For that reason, it is important and logical that a right to equitable remuneration is paid for songs played on Spotify, not only for songs played on the radio.

This is especially the case since it is the stated aim of platforms such as Spotify to replace the radio. The popularity of these platforms is continuing to rise, but there is no guaranteed payment obligation to pay all musicians.

However, when a song is played on Spotify it is legally classified as an act of “making available” and unfortunately, there is currently no European legal obligation to pay equitable remuneration for such making available. Nevertheless, several EU member states have corrected this anomaly and introduced an equitable remuneration right in their national legislation. The proposal that was approved earlier this week by the Committee on the Economy recognizes this when it comes to performers in the audiovisual sector. It introduces a remuneration right when their work is streamed on platforms like Netflix or HBO. It is incomprehensible that it does not introduce the same for music performances.

Especially when music performers are demanding an equal treatment. Just last week a study published by the International Artists Organisation (available here) was published showing that 87.5% of musicians were dissatisfied with the remuneration they were receiving for streaming. Only 8.5% of musicians were against the introduction of equitable remuneration to solve this problem.

Next week the plenary of the Slovenian Parliament will decide on this draft. AEPO-ARTIS hopes that the Slovenian Members of Parliament will realize in time that the introduction of a new discrimination is no longer of this time. We fully support the introduction of the Parliaments proposed streaming remuneration right, but would like to see it applicable to all categories of performers.

On July 20th, Commissioner Thierry Breton, responded to a Parliamentary Question that was tabled in March 2022 by the Cultural and Creators Friendship Group (CCFG).

The question concerning article 18 of the Copyright Directive (2019/790) which puts on the Member States the obligation 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” and grants them the freedom “to use different mechanisms and take into account the principle of contractual freedom and a fair balance of rights and interests.”

This article 18 is linked to the general objective of the directive “to adapt and supplement the existing Union copyright framework, while keeping a high level of protection of copyright and related rights” in order to face the “rapid technological developments that continue to transform the way works and other subject matter are created, produced, distributed and exploited.” (Recital 3).

As advocates of a high level of protection for performers, AEPO-ARTIS and all its members have been calling upon all Member States to implement this article not with a literal copy-paste of the wording , but with effective mechanisms. We have always promoted the introduction of an unwaivable remuneration right for the making available of our performers’ work to increase their level of protection in the online environment. For performers the system of an equitable remuneration for streaming exploitations is the best possible way to increase their chances to make a living out of their profession.

The resistance we felt against this proposal has always been great. Certain stakeholders from the creative industries did not see their own business model of maximisation working in a landscape where part of the streaming remuneration would be paid directly to the performers. They sometimes went so far as to state that equitable remuneration is not equitable at all. But the argument most used was that a system of an unwaivable right to remuneration would not be in conformity with the directive, a statement that never received any legal justification, but did have an impact on the debate.

There is therefore no doubt that we warmly welcome Commissioner Breton’s response. It is not only a theoretical response, but also one with practical implications.

In his response Breton confirmed that “the Commission considers that, in principle, Member States could transpose article 18 through an unwaivable remuneration right”, provided that this “complies with relevant EU law, including the principle of contractual freedom, fair balance of rights and interests, and the exclusive rights in the copyright acquis”. The last of these has always been a central part of the proposals made by AEPO-ARTIS and its members at European and national level.

A different answer could not really have been expected. Unwaivable remuneration rights are already known in EU law and a remuneration right for the act of making available can therefore be perfectly integrated into the national legislation of each Member State. Spain, Italy and Hungary had already done this. Belgium and Germany, among others, have added this as part of their implementation of the directive. It is now clear once and for all that these countries have acted in accordance with the directive.

His answer also confirms that a literal implementation can never be seen as a correct implementation. This is clear from his statement that “Any provision implementing article 18 should secure appropriate and proportionate remuneration to authors and performers”, something that the literal copy-pasting of the wording of Article 18 (which several Member States have already done) does not achieve.

AEPO-ARTIS and its members will make every effort in the coming months to inform Member States that have yet to transpose the directive that an unwaivable remuneration right is indeed a choice that is in conformity with the Copyright directive. Moreover, we will point out to them that this is by far the most effective way to transpose Article 18 of the directive into national law and so far the only way to guarantee that the growing digital market acquires a place in the revenue model of every performer.

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.

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!

Danish Musician’s Union delivered signatures of 4500 artists supporting the #Fixstreaming campaign to the Danish Minister of Culture Ane Halsboe-Jørgensen, asking for a fair remuneration of Danish artists in the music sector. Read more about it here (in Danish).

Despite the fact that recorded music every minute gives billions of people great experiences, over the last 10 years there has been a decline in the income of artists from recorded music.

The Danish Musician’s Union decided to do something about it and, following in the footsteps of the #PayPerformers campaign, and with the consent of the UK #fixstreaming campaign, it initiated its own #Fixstreaming campaign with the goal of drawing the attention of the Danish lawmakers to the fact that Danish artists in the music sector are unfairly remunerated. The campaign urges them to grant performers a right to equitable remuneration for making available on demand, payable by the platforms and subject to compulsory collective management.

This comes at the time when the Danish Parliament is considering its options on how to implement the EU directive on copyright in the digital single market and in particular article 18, which obliges all Member States to ensure that authors and performers receive adequate and proportionate remuneration when their works and performances are exploited.

‘We certainly hope that the government would include the right for remuneration in the draft law which will be published in the next months, before the summer break.’ says Morten Madsen, from the Danish Musician’s Union.

Many artists have supported the campaign, with a petition launched by #Fixstreaming now having over 4500 signatories in favor of the proposal, some of them being well-known Danish artists like Steffen Westmark, guitar player and lead singer of The Blue Van and singer and songwriter Sys Bjerre. We can only support this initiative and hope the efforts are fruitful.

Learn more about the campaign here and you can find the in-depth article on this link (in Danish).

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.

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.