WIPO keeps the unfair remuneration of performers in the digital environment on its agenda

Last week, from 13th until 17th of March, the 43rd WIPO Standing Committee on Copyright and Related Rights (SCCR) took place, with once more a lot of time given to the discussions on “Copyright in the digital environment”. For 8 years in a row, WIPO has been discussing the issue and in particular the lack of fair remuneration for musicians for the streaming of their music. A solution still has not been found, but positively the SCCR decided to not stop the discussions and organise an additional meeting at the end of the year.

On Wednesday, the discussions took off when national delegates gathered at a panel discussion on unfair remuneration of performers in the digital environment. In a discussion moderated by John Smith (FIM), representatives of performers elaborated on the specific difficulties performers have in achieving fair remuneration from music streaming. And that is primarily the making available right. For performers, all streaming is licensed under the making available right, a right that is almost always transferred to record labels, not enabling performers (contrary to the position of authors) to receive any remuneration through their collective management organisations (CMOs).

Agnieszka Parzuchowska-Janczarska (SCAPR) added that “It is important to share with all WIPO delegations our experience with performers’ rights for making available on demand” stating it was clear that the exclusive right doesn’t work and doesn’t play its primary role to remunerate artists fairly.

Addressing the fact that even under the existing right performers are not receiving what they are entitled to, Horace Trubridge (FIM) stated “When somebody selects a track at the time of their choosing it fits the definition of making available. However, when they have the track auto- generated and pushed at them rather than something that they’ve selected, then that’s the same as radio and should attract equitable remuneration paid via their CMO”

Ioan Kaes (AEPO-ARTIS) urged WIPO to provide a solution and use their authority to encourage countries around the world to implement regulations that would guarantee all performers – in both the music and audiovisual sector – a fair remuneration: “These last 8 years WIPO has put a lot of effort into analysing the specific situation of music in the digital environment. It has produced multiple studies and provided room for discussion. It is time they now decide on what to do with this information. It is up to WIPO to acknowledge the precarious situation performers are in and urgently make recommendations on how to guarantee their right to be remunerated.”

On Thursday, the discussions continued with an extensive information session that saw representatives from records labels, publishers, streaming platforms and social media platforms explain their views on how streaming benefits their industry.

Garrett Levin (DiMA) stated that “streaming services are paying out roughly 70% of the revenues they bring in from consumers, thereby paying out a higher percentage of the royalties than essentially any other distribution model known in the music industry”, adding that the answer is not to seek additional royalties from these services by inserting other intermediaries or inefficiencies into a system in which significant amounts of royalties are already being paid.

Reni Adadevoh (Warner Music) took a strong position in favor of a direct relationship with the Digital Service Providers (DSPs). “We license exclusive rights and we license them directly to the DSPs, not through CMOs”, thereby forgetting to mention that this privilege is only given to the 3 major labels. Independent labels license their content through Merlin, indeed a CMO.

But the voices most heard, were those of the artists present. Authors, performers and their representatives were also invited by WIPO to share their experience. And their message was clear.

Spanish musician Nacho Garcia Vega emphasized that “musicians have always embraced technology. We have always gone hand in hand with new technologies. But record companies have been trying to make us believe since the beginning that streaming is replacing the sale of music and they have been applying contracts that consider streaming to be a sale”, adding that new technologies deserve new remuneration mechanisms.

Indian artist Javed Ahktar pointed out the importance of making rights non-transferrable and stated that “It is wonderful to have long discussions and get into the nitty-gritty, but long discussions and too much analysis suits people who are the beneficiaries of injustice.”

They received the support of the Belgian minister of Economy Pierre-Yves Dermagne, who addressed the meeting with a video-message explaining the recent legislative changes that Belgium has implemented. In June 2022, Belgium adopted an ambitious law that tries to make sure that music (and audiovisual) performers receive equitable remuneration for streaming by variousplatforms through their CMO. “This remuneration right is not new. It has been widely used at international level for the past decades, particularly in cable retransmission and radio broadcasting”, ending with the words: “I hope the measures we have put in place will inspire you.”

Annie Morin (Artisti) pointed out that these kind of legislative interventions are necessary to allow performers to build a direct relationship with the streaming platforms themselves. She supported the continuation of studies, but warned that “if we do not actually implement any solutions while we are researching, it will discourage people to continue to make music.”

On Friday, the floor was finally given to the Member States to make clear their intention on how to treat this topic in the future.

The Group of Latin American and Caribbean Countries (GRULAC) opened the session with an already written out proposal that aims at inserting the topic as a separate item on the agenda and to instruct the WIPO Secretariat to make proposals, searching effective and fair solutions to secure performers’ rights in the digital environment.

They were supported in this request by the Central European and Baltic States (CEBS), the African Group and the Asia and Pacific Group, as well as a multitude of individual countries. The only two countries taking a clear position against the proposal were Japan and the United States of America. They stated that norm setting by WIPO should not intervene in market practices.

AEPO-ARTIS thanked the delegations for their support but urged them “to commit to urgently and immediately start the work on concrete recommendations on how to make the existing legal framework more effective, and in particular provide guidance on additional measures to guarantee that Article 10 of the WPPT can work as a legal basis that effectively remunerates performers when their work is used online and that allows them to have a direct relationship with platforms through their own collective management organisations”.

At the closing of the session, it was agreed to organise an additional three-day Standing Committee in 2023, where priority will be given to substantial discussion and one whole day will be devoted specifically to the item of Copyright in the digital environment.

Watch a message to WIPO from performers from all around the world: