musicians copyright – AEPO-ARTIS

AEPO-ARTIS appeals to Finland’s Minister of Culture: Protect Private Copying Remuneration for Performers

admin — Mon, 19 Aug 2024 17:43:12 +0000

In a significant development concerning the Finnish cultural sector, AEPO-ARTIS expressed grave concerns over the Finnish government’s proposal to halve the private copying remuneration.

Private copying remuneration is a critical source of income for European performers, ranking as the second-highest source of collection among AEPO-ARTIS members. This compensation is one of the few mechanisms that directly remunerates performers for the use of their work, making it a crucial element in their professional income, especially as licensing deals for soundtracks in nevada sports betting apps highlight how fragmented digital royalties can leave artists chasing fractions of fair value. A reduction from the current level of EUR 11 million to EUR 5.5 million would significantly undermine the already precarious financial situation of our artists, forcing even more reliance on unstable streams that barely cover the basics.

The current compensation level is based on empirical research conducted in 2023, and no recent studies justify a reduction. While we understand that political motives might drive the proposed budget cut, it does not align with EU legal obligations.

Furthermore, the recent Opinion of the Education Committee (SiVL 5/2024 vp) emphasizes the need to provide rightholders with “fair compensation” and insists on the importance of maintaining appropriate reimbursement levels. The proposed halving of the budget, without a thorough economic assessment, fails to meet these standards and could severely impact performers and various cultural projects supported by the private copying remuneration system.

At a time when the promotion of Finnish and European culture is more crucial than ever, the proposed budget cuts will have damaging effects on the cultural landscape. Therefore, we urge the Finnish Minister of Culture, Ms. Sari Multala, to reconsider this decision and remain open to further discussions on this critical issue.

By standing against the proposed reduction, AEPO-ARTIS aims to protect the livelihoods of performers and ensure the continued vitality of Finnish and European cultural heritage.

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Streams and Dreams 2 shows the ineffectiveness of the DSM Directive

AEPO-ARTIS — Fri, 14 Jun 2024 13:42:25 +0000

A new report entitled Streams & Dreams Part 2 – The Impact of the DSM Directive on EU Artists and Musicians, written by the independent music business researcher Daniel Johansson (Inland Norway University of Applied Sciences) and published on June 13^th, proves the ineffectiveness of the DSM Directive.

Based upon a survey of 9.542 artists from 19 EU countries, conducted by AEPO-ARTIS and its members in collaboration with IAO, this is one of the most substantiated reports ever done on issues related to performers in the music industry. The report is available here.

The report focusses on the provisions in Chapter 3 (“Fair remuneration in exploitation contracts of authors and performers”) of the directive, which oblige Member States to guarantee artists effective rights: to receive appropriate and proportionate remuneration, to receive transparent information on all exploitations of their recordings, to claim additional remuneration and recover rights from record labels in certain situations, and to request alternative dispute resolution.

It came as no surprise to AEPO-ARTIS that the DSM directive has had almost no positive impact on EU performers:

Appropriate and proportionate remuneration: only 5.1% of signed artists considered their streaming revenue to be satisfactory.
Transparency: 77.6% of musicians still do not receive the transparent information from labels that they are legally entitled to receive, despite article 19 obliging record labels to produce this information proactively.

Contract adjustment: only 35 out of 4.215 signed artists managed to adjust their contractual terms and receive additional remuneration.
Rights revocation: less than 2% of artists benefitted from the provisions on rights recovery, contained in article 22.
Alternative dispute resolution: The possibility of alternative dispute resolution (designed to avoid costly litigation and minimise hostility between those in dispute) has barely been used and when it was, a majority of artists (60%) did not find it helpful.

The author reaches the conclusion that: “This report has primarily demonstrated that, although Articles 18-22 were designed and implemented in national legislation to strengthen the position of artists and musicians in the market, gaps in the effectiveness of the legislation still remain. Consequently, this report suggests that additional measures are required by the EU, its Member States, and the music industry.”

Unlike their approach to article 17, the European Commission has failed to give any official guidance on how to implement chapter three. It appears that they have been relying on the belief that a literal transposition of Chapter three would address the problem identified by the directive, i.e. the weak position of performers (and authors) and that the goal of fair remuneration would be achieved. Moreover, by starting an infringement procedure against more than 20 Member States, they have pushed many towards a literal transposition.

Overwhelming evidence now shows that this believe is naïve and it would be a dereliction of duty for the Commission to continue to rely on it. They now have a responsibility towards performers to intervene in a meaningful way.

But Members States are not let of scot-free either.

Now that the French government has evidence that the satisfaction of French artists with streaming revenue (2.94%) is lower than the EU average (5.1%), are they willing to wait for the Commission to take action? Is the Irish government willing to ignore the fact that not a single Irish artist expressed satisfaction with their streaming revenue? Does the Portuguese government consider it relevant that more than 1.000 of their artists felt strongly enough to freely give their time to complete a survey? When 95.44% of their artists consider the way streaming revenue is shared to be unfair, does the Portuguese government believe it is acceptable to remain inactive?

The author of the report describes one specific situation in which the intervention of the Commission is “imperative”. With regard to session musicians, who receive no remuneration for streaming, he stated that:

“As session musicians do not possess a remuneration right for streaming, it is imperative to provide EU-level recommendations on whether Member States should introduce such a remuneration right.”

For too long, artists have endured stakeholder dialogues, consultations and ultimately a lack of willingness on the part of the Commission to take decisive action. The question of a remuneration right for session musicians could hardly be more straightforward. The Commission is fully aware that session musicians receive no remuneration at all from streaming. They are fully aware that there is no legal impediment to such a right. They are now aware that five years after the adoption of the DSM Directive 87.6% of artists consider the way streaming revenue is shared is not fair. It is now purely a matter of political will.

When mechanisms that rely on the responsibility of the industry to achieve a policy goal fail, focus needs to be put on mechanisms that allow policy makers to take responsibility. And those can be found in article 18 of the directive. It is well known that several Member States have introduced additional remuneration mechanisms that have an effect that goes beyond the contracts that performers sign and benefit the artistic community as a whole.

It is clear that an effective implementation of article 18 is essential if performers are to see meaningful change. A report fed by the voices of 9.542 performers makes this an irrefutable fact. It is up to the Commission now to take this fact serious and push its Members States towards an effective implementation. It is up to the Member States to not wait for that push to become shove.

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AEPO-ARTIS writes an open letter to the Belgian Prime Minister Alexander De Croo

AEPO-ARTIS — Fri, 12 Jan 2024 13:15:09 +0000

With start of the Belgian Presidency of the Council of the European Union, AEPO-ARTIS has addressed an open letter to the Belgian Prime Minister Alexander De Croo with the aim of emphasizing the importance of culture and promoting the improvement of performers’ rights, in accordance with the priorities during this presidency involving cultural and creative sectors.

Dear Prime Minister of Belgium,

Dear Mr. De Croo,

Last week Belgium officially took over the Presidency of the Council of the European Union. And so, for the next six months you will be leading the rest of the European Union in taking the most important decisions that need to be taken.

AEPO-ARTIS and the large community of performers we represent would like to thank you for giving culture, and the artist in particular, an important place in the objectives of your Presidency.

AEPO-ARTIS is a non-profit making organisation that represents 39 European performers’ collective management organisations from 29 different countries, including the Belgian organisation PlayRight. The number of performers, from the audio and audiovisual sector, represented by our members is estimated at more than 650.000.

When we look at the programme for the upcoming Presidency, we are pleased to read that the Belgian Presidency will “stimulate the digital transformation of the cultural and creative sectors” and “shed a light on the working conditions of artists and creative professionals”. It is important that the Council joins the call from the Parliament in its November Resolution on the matter to request the Commission to include in its political priorities for 2024-2029 the improvement of working and living conditions and fair remuneration in the CCS.

In this resolution the Parliament put emphasis on the concept of fair remuneration, in particular the right to appropriate and proportionate remuneration which was granted to performers in the Copyright in the Digital Single Market Directive 2019/790.

In this respect we are delighted to read that the Belgian Presidency will “facilitate the exchange of best practices among member states regarding the implementation of the copyright directive in the Digital Single Market.”

With the law of 16 June 2022 you implemented the directive effectively, which unfortunately many others have not. We are sure that the Belgian initiative will provide a good framework for both the exchange of best practices and the monitoring assignment that the Commission must carry out under the Belgian presidency.

The sharing of such experiences is currently of great importance for the EU candidate member states. When the Belgian Presidency is “committed to support candidate countries in their efforts to join our Union”, we hope that you will ensure that these countries receive the necessary support to make our Union a safe workplace for their artists too.

Finally, we are looking forward to how Belgium will “prepare the positions of the EU and its Member States regarding various issues being discussed within the World Intellectual Property Organisation”.

A first important issue is the 2012 Beijing Treaty. Twelve years have already elapsed since this treaty was signed, with the intention of granting actors much needed and long overdue protection. Nevertheless, the EU has still not ratified the treaty. We sincerely hope that your Presidency will be the one that changes this and gives actors the support they deserve.

Furthermore, at the upcoming 45th Standing Committee on Copyright and Related Rights, the topic of fair remuneration in the music and audiovisual sector will also need stronger and more outspoken support from the EU. It is time that WIPO finally takes this to heart, especially now that their agenda has been expanded to include artificial intelligence.

As the Belgian Presidency will “strive to finalise any remaining work on the AI Act”, it is important to guarantee that a good balance is found between the promotion of a European artificial intelligence industry and its respect of the copyright in the works they use to train their machines. Fair remuneration for all stakeholders in the cultural and creative industries, including our performers, should be one of the main objectives of any policy in this regard.

We know it will be difficult to tick off all the goals of the very ambitious program by June 30. This is especially true with the elections that will take place in Europe and also in Belgium. We know that we can count on you to ensure that the Belgian Presidency will keep the focus on what is important, including our European culture and the protection of those who are the face of that culture, our performers.

Please know that AEPO-ARTIS will always be available to provide any assistance possible. We have members in almost every EU Member State and through this network we can facilitate the collection and dissemination of information on any matters relating to performers.

On behalf of every performer whose work you have ever appreciated. Most respectfully,

Ioan KAES

General-Secretary AEPO-ARTIS

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Another study recognises the need for better remuneration of artists in the streaming economy

AEPO-ARTIS — Wed, 10 May 2023 06:28:49 +0000

A fascinating study written by Daniel Johansson of the Inland Norway University of Applied Science entitled “Revenue Distribution From Music Streaming – A Quantitative Analysis of Swedish Artists on Spotify” has been published and is available here.

Assessing the winners and the losers in the world of streaming, lessons can be learned for artists throughout Europe and beyond.

Do we want the revenue generated by Spotify and other DSPs to go to fake artists ‘creating’ making “white noise” recordings or is it time we found a way to make sure the money gets to those who deserve it, the creators and artists?

Scope of the study: what it covers

The study analyses all Swedish artists that have generated more than 1 million streams on Spotify since its release in 2008, gathers data for every track available from each artist and shows how individual genres have performed. Carrying out simulations of revenue generated by different categories of artists, it can (subject to certain limitations) show who are the winners – and who are the losers – in the Swedish Spotify streaming economy.

The study starts by stressing the need for a better understanding of the economics of streaming. The author examines the way the streaming model operates and provides a detailed explanation of e.g. why there is no such thing as a “per-stream rate”.

In order to carry out a number of simulations regarding revenue that might be received by various categories of artists, with various different types of record deal, he creates a model with a constant stream rate which is applied to the data collected.

The results are very revealing. Jazz, metal and classical artists fare very poorly, while artists in “niche” local language genres such as “epadunk” do very well, as do “playlist-friendly” newage/ambient artists

However, the simulation which shows the most profit is that of the “noise artist”, producing recordings of white/brown/pink etc noise. These are recordings of low frequency sounds, often designed for relaxation, concentration or sleep. One such “artist” can be estimated as generating more than $100,000 per month.

Scope of the study: what it does not cover

One of the most commendable aspects of this study is that it is aware of its own limitations. Without knowing the details of individual contracts between a record label and an artist, it is impossible to tell what amount the artist actually receives after the revenue they generate via Spotify has filtered through the label’s contractual labyrinth. As the author states, his simulations by necessity cannot take into account “advances and fixed costs like recording expenses, marketing, overhead costs and other details that are also a part of artist contracts”. The results of the simulations would of course be different if such things had been able to be taken into account, as the author acknowledges.

However, the author does make reference to the Music Creators’ Earnings in the Digital Era Study, which provides an insight into major label contractual practices.

– Record label contractual practices
The Music Creators’ Earnings study reveals the content of a 2020 Sony Music Featured Artist royalty

contract. Its provisions include: – Overheads

Under this contract, before any royalties are paid to the artist, Sony Music deducts 25% of gross revenue generated, which it uses to “cover its overheads”. It is remarkable that, as the study notes, “while a label’s overheads are fixed, the contribution that each release makes to those overheads will be based on 25% of that release’s gross revenue and will therefore rise as its revenue rises.”

– Marketing

This surreal situation with overheads is nothing when compared with the provisions regarding deductions made for marketing. 15% of gross revenue generated is deducted to cover “marketing” costs. This would be understandable were it to apply to e.g. the first year that the recording was released. However, these deductions are made throughout the entire life of the recording. For 70 years, 15% of revenue otherwise payable to the artist, will be deducted, disguised as marketing expenses, when of course no marketing whatsoever will actually occur for the vast majority of that time. Such practices may be legal, but they may also be deemed misleading and immoral.

– Investment by the artist

The author also does not have access to another vital component necessary to fully understand the artist’s position in streaming today. The investment made by an artist, both in terms of finance and time, is greater than ever before. An artist now needs to purchase equipment that will enable themselves to create high quality recordings. They need to spend time and money writing the songs, crafting them, rehearsing them in rehearsal rooms, before finally recording them. They then need to distribute their initial recordings on social media and other DSPs and to maintain a presence in order to achieve a sizeable following.

These tasks and costs were previously borne by the record label, which is why, together with their role in the manufacture and distribution of physical records/CDs etc, it was logical that they should receive a significant share of the revenue generated by the recording and it was logical that they should be allowed to recoup some of these costs against the artist’s share of the revenue generated. However, applying the same logic today, an artist ought to be able to recoup the investment they have made in a recording from the label’s share of revenue generated.

It was also logical that a record label should be legally defined as the sole “producer” of a record and benefit from the valuable copyright protection granted to producers. The definition of “producer” in international copyright law (the WPPT) is:

Article 2 (d) “producer of a phonogram” means the person, or the legal entity, who or which takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representations of sounds.

A record label may still meet this definition in the case of for example pre-packaged talent show contestants that “win” a record contract and are provided with a song, musicians, and a studio in which to record it. In other cases, record companies certainly do not meet this definition.

It is true that artists today have the option of being a DIY artist however the prospects of being able to sustain a career via this route are extremely small. The numbers speak for themselves: a 2022 study by the UK competition authority (CMA) shows that of the top 1000 recordings released in 2021 in the UK, 98% of them were tied to either a major record or major publishing label.

A system whereby modern royalty rates, contracts and revenue-splits do not take into account the role of an artist as the producer of their own recordings, and the investment they make in those recordings, is entirely obsolete.

– Equitable remuneration

Although this study does not directly cover the question of the need or otherwise to introduce a right to equitable remuneration, its findings contribute to a growing body of evidence that overwhelmingly supports such a right.

That body of evidence includes a study entitled “Streams and Dreams – A Fair Music Economy For All”, conducted by the same author as this study, in which he recommends that we “make use of both the Spain/Belgium ER model and the France voluntary agreement model, and that they both need to be balanced towards each other in a hybrid solution including all actors around the negotiation table. They are not in conflict with each other, they should complement each other.”

What this new study does address is “fair remuneration”, noting the fact that “many more artists stand perplexed over how their artistry does not translate into a fairer remuneration, at the same time as the intermediaries between the artists and their audiences report immense profits year after year”.

It is no wonder that artists are perplexed. Record label executive “remuneration” – such as the one time stock grant of up to $100 Million (and yes, that is in addition to the $250 million package received in 2021) payable to the Universal Music Group’s CEO – is exhorbitant. Why some of that amount cannot be shared with artists is, indeed, “perplexing”.

Conclusions

In the conclusions of the study, the author asks: “is it perhaps now time to start tweaking the streaming model towards a system that better reflects the immense cultural value that artists provide to fans and society at large?”

Those who have the interests of artists and creators at heart would answer with a definite “yes” and agree with him when he concludes by saying that:

“DSPs, labels, PROs, publishers, distributors, as well as legislators and politicians, all need to jointly focus on the broader picture; how to better remunerate the ones that in fact are the most important and most valuable asset, the music creators and artists.”

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Streaming isn’t working for artists. What is the problem and how do we fix it?

AEPO-ARTIS — Fri, 05 May 2023 13:46:59 +0000

Although streaming is nowadays the main way of accessing music, performing artist sare not being fairly paid for their work.

On May 2nd – at the opening of the International Cultural Week in Stockholm – Swedish performers met with their European counterparts for a discussion on the problems inherent in streaming, and how to fix them.

Organised by SAMI, the Swedish Artists’ and Musicians’ Interest Organisation, and AEPO-ARTIS, the Association of European Performers’ Organisations, the panel discussion gathered over 130 music professionals and policy-makers from Sweden and across Europe, with many more joining remotely.

Dispelling a few myths, the panel started with a short explanation of how streaming works, and more specifically how it does not work for performers. It was explained that, contrary to what is often believed, platforms like Spotify do not pay musicians directly. Instead, they pay record labels who then distribute the money to featured artists only, based on the contracts between labels and artists. The inequity this creates is due to most of these contracts being unfair, leaving the musicians with a very low proportion (if any) of the revenue. In the case of non-featured artists (“session musicians”), they receive no share of streaming remuneration at all.

“The simple fact is that where there is human endeavour, and it’s making somebody else wealthy, that wealth, should at least be shared with the person who made the endeavour. And it’s kind of mind- blowing that you can create a business where that doesn’t happen… but here we are.” said Tom Gray, British musician, songwriter and founder of the #BrokenRecord campaign that aims to change current unfairness in the music industry.

But how do we change it? Anneli Axelsson, Swedish singer, musician, songwriter and President of the West Sweden’s branch of the Musicians’ Association commended the recent study “Streams & Dreams” by the Swedish academic Daniel Johansson, which supports the introduction of equitable remuneration and shows artists’ large-scale dissatisfaction with streaming.

Criticising a controversial report in Sweden which failed to recommend the introduction of an equitable remuneration right, she argued that its author had not listened to the voice of the artists, saying “It’s time to do that report again. And to do it right.” This criticism comes as no surprise, bearing in mind that numerous other studies have been published arguing in favour of the introduction of such a right.

Talking about the implementation of the Copyright Directive in Belgium, Tom Kestens, Belgian musician, songwriter and advisor to the Belgian Government, pointed out that Belgium was a country which did listen to artists. This led them to the conclusion that a right to equitable remuneration was the “best legal option for performers to be fairly remunerated for their work”.

He stated: “You have to look each other in the eye and say: ‘what do we really believe?’ At some point you have to make a choice about whether you will make a bold move. What the European Copyright Directive has done really well is to say to the whole of Europe, fair renumeration for artists is the right thing to do.”

PlayRight (the Belgian CMO for actors and musicians) will collect equitable remuneration from streaming platforms and distribute this revenue directly to performers. “The system has already proved to be very efficient. Spain has been applying it for years, leading to the overall greater satisfaction of artists” said Tom Kestens, adding that “the system is not complex to introduce”.

Addressing the consequences of not introducing a right to equitable remuneration, Tom Gray explained: “The problem is that linear broadcasting such as radio and TV is going down, but streaming is going up. We get paid from radio; we get paid from TV. Do we get paid from streaming? No, we do not. So what’s going to happen if legislators do nothing is that the situation will become profoundly worse.”

With a number of prominent Swedish politicians in attendance, including the former Minister of Culture Amanda Lind who expressed her disappointment that the Swedish inquiry into an unwaivable remuneration right did not lead to any concrete proposal, it seems that the message of the performers was heard and well received.

To quote Tom Kestens, “perfection is the enemy of progress”. It is now time for Sweden, and other EU countries, to show that they believe in artists and “make the bold move” of introducing equitable remuneration.

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The most important conversation of the year

AEPO-ARTIS — Mon, 01 May 2023 09:45:53 +0000

Streaming isn't working for artists. What's the problem and how do we fix it?

Join us online on 2nd May at 16:15 CET for a panel discussion where we will discuss this and more. Follow the live stream of the panel on this link.

Meet our panelists:

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RE-CREATION: European discussions on artistic creation held in Paris

admin — Mon, 07 Mar 2022 10:43:00 +0000

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.

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