Professor Raquel Xalabarder of the Universitat Oberta de Catalunya, recently published an article entitled “The Principle Of Appropriate And Proportionate Remuneration Of Art.18 Digital Single Market Directive: Some Thoughts For Its National Implementation”. The article is accessible here.

Professor Xalabarder is a respected copyright expert. She has published numerous papers, as well as a recent study prepared for CISAC on the subject of equitable remuneration for audiovisual authors.

In her latest paper, she explains why an unwaivable remuneration right for on demand uses is an appropriate and efficient mechanism to implement article 18 of the DSMD.

She states that “a verbatim implementation of the principle in Art.18 DSMD is not enough. Member States are expected and obliged to go further implementing, as necessary, different mechanisms to effectively secure fair remuneration of Authors and Performers”.

“The principle of fair remuneration in Art.18 DSMD not only confirms the important role of national legislators in securing that goal, but obliges them to explore and implement the full potential of these several mechanisms, adjusting them to different sectors as necessary”.

She then addresses in detail a number of potential “mechanisms” that could be used, namely (i) statutory contractual rules, (ii) collective bargaining and (iii) statutory remuneration rights.

In her conclusion, she highlights the effectiveness of statutory residual remuneration rights where implemented, as follows:

“Previous experience shows that statutory contract rules per se are not enough”…

“Unwaivable (and inalienable) statutory residual remuneration rights, granted by law to Authors and Performers, upon transferring their rights to the producer, paid by users/licensees and subject to collective management have proven to be the most effective mechanism to secure appropriate and proportionate remuneration for Authors and Performers…”.

“Residual remuneration rights secure a constant flow of revenues for all Authors and Performers (regardless of nationality), for current as well as future means of exploitation, with no need to revise / renegotiate production contracts. They neither disturb the exercise and enforcement of exclusive rights, nor the chain of exploitation, which remains in the hands of producers and rightsholders”.

As the implementation window is getting narrower, it is essential that Member States are made aware of the most practicable and efficient options, to make sure that the 2019 Directive on Copyright in the Digital Single Market results in an actual improvement of the situation of authors and performers. The status quo cannot be an option!