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.

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.

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

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).

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

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.

As part of the official programme of the French Presidency of the Council of the European Union, representatives from a wide range of artistic disciplines gathered on Friday 4th March at the Théâtre de la Colline in Paris for the “RE-CREATION” conference, a full day of discussions on the importance of culture and creation for Europe with AEPO-ARTIS’ General Secretary Ioan Kaes participating in a panel on ‘Better protecting the rights of European authors and creators’.

The participants were welcomed by French Minister of Culture, Roselyne Bachelot-Narquin. She reminded everyone that Europe has always been a centre of culture and that our artists deserve the best protection possible making the reference to the Copyright Directive and the principle of fair remuneration for performers.

She was joined by Mariya Gabriel, European Commissioner for Culture, Education and Youth who focused on the impact of the COVID crisis for our sector and the loss of mobility and the possibility to meet our audience in person, pushing us to online environments.

AEPO-ARTIS participated to the morning session which focused completely on how to relaunch the sector and in the meantime find the right balance between the opportunities given by the digital environment and the goal of ensuring a fair remuneration for the work of our artist and the respect for their intellectual property rights.

Malfada Damaso of the Rotterdam Erasmus University and co-author of the CULT-report on the situation of artists and cultural workers and the relaunch of the cultural sector, was the first to address the Copyright directive and criticise the lack of implementation. “We cannot take it for granted that when culture creates revenue, this revenue ends up with the creators of that culture” she stated.

AEPO-ARTIS’ General Secretary Ioan Kaes expressed his concerns on the current status of the implementation of the Copyright Directive. “It is worrisome that almost three years after its adoption, less than 50% of our Member States have transposed this directive. And most of those have transposed it by merely copy-pasting the principle into their national legislation, instead of doing what the directive asks them to do, which is to ensure that the transfer of exclusive rights always results in a fair remuneration. If the Member states fail to implement this principle by means of effective mechanisms that make it work, then Europe needs to legislate further.”

He called for rethinking the way we look at intellectual property rights for performers. In the online environment the role of neighbouring rights in allowing performers to be remunerated has become more important that their role of offering performers the possibility to control the use. “These last years we have been buried with news on deals between big tech and big media. We’ve seen how intellectual property rights have been used to reshape the online market for the rightholders. Our authors and our performers are no longer the ones ‘holding’ their rights. These rights are more and more treated like exchangeable assets. The link between the creator and the value is less clear. And so we’ve also read even more studies, articles and testimonies that confronted us with the reality that the current online market is not working for our artists. Intellectual property rights are losing their role of remunerating the human beings that at the core of the intellectual activity that is protected.”

Burak Özgen from GESAC highlighted the unfair practices of buy-out & work-for-hire contracts by platforms which cut the link between authors and their works and also spoke out against new practices that aim at circumventing the mandates of collective management societies. He was joined by Marek Hojda from Music Export Poland who testified from his personal experience as a musician and agreed that artists are not always in a position to negotiate a good contract. “Artists in general should be better protected by means of unwaivable rights so that no matter how bad the contract is, they still receive the protection they need.”

All speakers of the morning session agreed that COVID has shown that Europe still does not sufficiently protect its creators to participate in the digital single market. This was already the case before the crisis, but it played an important role in revealing and magnifying the weaknesses of the current legal framework surrounding artistic activities and in accelerating the need for change.