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Belgian performer society welcomes proposed new digital remuneration right

By | Published on Monday 21 March 2022

Palais de la Nation, Belgium

The collecting society that represents performers in Belgium has welcomed proposals by the country’s Council Of Ministers to introduce a new digital remuneration right for artists as part of the implementation of the 2019 European Copyright Directive.

When that directive was being negotiated there was a campaign for European law to be amended so to introduce a full-on performer equitable remuneration right linked to streaming, which would mean that at least some of the money paid into the music industry by the streaming services would flow to artists via the collective licensing system.

Currently, frontline artists receive streaming royalties via their labels or distributors, subject to whatever deal they negotiated with that label or distributor, while session musicians are not cut into streaming income at all.

Quite how ER on streams would work has been much debated, but the wider principle of ER is well established of course – artists already receive royalties direct via their collecting societies when recordings on which they appear are broadcast or played in public.

That principle has not been employed with streaming in most countries, with a few exceptions. ER is paid on personalised radio services like Pandora and iHeartRadio in the US, and some streaming royalties already flow through the collective licensing system to artists in Spain and Hungary.

In the end the copyright directive did not introduce ER on streams across Europe, although article eighteen of said directive does say that “member states shall 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”.

Most EU countries that have already implemented the directive have just cut and paste the core parts of that article directly into their copyright laws, not actually changing anything, and therefore basically assuming that performers must already be getting “appropriate and proportionate remuneration” under the current system.

Although with that commitment in law, performers could now starting lobbying lawmakers at a national level to the effect that “appropriate and proportionate remuneration” is not being achieved and that an ER system is the best way to ensure that it is.

However, two countries – Germany and Croatia – have actually introduced a new more specific performer right into law as they have implemented the directive.

In the case of Germany, that takes the form of a new remuneration right for performers specifically linked to user-generated content platforms – the obligations of such platforms already being amended as part of article seventeen of the directive. That means an extra revenue stream for those performers administered by the collective licensing system.

And now Belgium can probably be added to the list of countries introducing a new performer right as they implement the directive, based on proposals agreed last week by the country’s Council Of Ministers, which will now go to the Belgian parliament. Those proposals also include a new remuneration right for performers. The specifics of that are still to be confirmed, though some sources say the new right will be similar to that added into German law.

However it works, if passed by the country’s Parliament the new right will be managed by collecting society PlayRight. It said on Friday: “In the preliminary draft of the law that was approved today by the Council Of Ministers, a right to remuneration in collective management has been introduced. The text will now be submitted to the Economy Committee of the Federal Parliament”.

The society then confirmed that it “welcomes this positive development”, adding: “We will also take a closer look at the mechanisms that [are needed] to ensure that performers will be paid for the use of their performances online”. It also noted “the battle is not yet won, as now Parliament must be convinced”.

Although the EU copyright directive is not relevant to the UK post-Brexit, extending the ER principle to streams has been a big part of the economics of streaming debate here too, of course, with Parliament’s culture select committee supporting such a system.

However, it’s a divisive issue within the music community, given that if artists get a cut of streaming money directly through their collecting societies, obviously some other stakeholders in the music streaming ecosystem would see their cut of digital income drop.

With the way ER currently works in the UK, it would be the labels and distributors that take the hit, while in much of Continental Europe it could potentially also affect the share of the money allocated to the streaming services or even the song rights.

Though, whatever approach is taken, not all artists necessarily benefit from a shift to ER, especially once you factor in the costs of administrating the system and session musicians getting a cut of the money. So the debate is more complicated than just artists versus labels.

With that in mind, the UK’s Intellectual Property Office has commissioned research into what the impact of different manifestations of ER on streams might be.