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EU Commissioner says copyright directive implementation can include a new ER right for performers

By | Published on Thursday 21 July 2022

European Union

The European Union’s Commissioner For The Internal Market, Thierry Breton, has issued a statement saying that, in principle, EU member states can introduce a new remuneration right for performers when implementing the 2019 European Copyright Directive. Belgium recently did just that, but the move has been criticised by some in the wider music community.

Article eighteen of the 2019 directive says that EU member states should ensure that artists who do not own or control the copyright in their recordings nevertheless receive “appropriate and proportionate remuneration” from the exploitation of their work. However, it doesn’t say how that should be achieved.

Most of the EU countries that have now amended their national copyright laws to comply with the directive have simply added a line about artists getting “appropriate and proportionate remuneration”, but without changing anything about the way artists are remunerated from the digital exploitation of their music.

In doing so, law-makers have basically implied that they believe the current system for remunerating artists – so that what cut of digital income any one artist receives depends entirely on the deals they have done with any labels, distributors or other artists they work with – is “appropriate and proportionate”.

However, not every country has taken that approach. Germany has introduced a specific new remuneration right for performers when their work is exploited by user-generated content platforms like YouTube. Meanwhile, in Belgium, a new remuneration right has been added covering all streaming services.

That means that in Germany and Belgium artists will receive an additional payment via the collective licensing system when their music is streamed. Digital services will pay this money directly to the performer collecting societies. Once that is happening, the services will almost certainly look to reduce the payments they make to the labels and distributors that control the recording copyrights.

When the directive was being negotiated, some performer groups campaigned for a pan-European remuneration right of that kind – usually called ‘performer equitable remuneration’ on streams – to be explicitly included in the final directive draft. However, that didn’t happen, and instead there was just that vague statement about “appropriate and proportionate remuneration” in article eighteen.

There are pros and cons to artists getting some or all of their share of streaming income via an ER system run by collecting societies. Labels – major and indie – are generally opposed to such a system, arguing that it removes at least some of the flexibility when negotiating record deals with artists, impacting on their ability to invest in new talent. Plus the increasing number of artists who self-release music through their own labels could earn less under an ER system.

But there are plenty of people in the music community who do support the idea of ER being paid on streams, insisting that it’s an effective way to ensure artists are more fairly remunerated when their music is streamed. And, with many EU member states running behind schedule on implementing the directive, and therefore still to do so, pro-ER campaigners have said that they hope other countries will now implement the 2019 directive in the same way as Belgium.

Ioan Kaes, General Secretary of AEPO-ARTIS – the pan-European grouping for performer collecting societies – said last month that the Belgian approach was “the most comprehensive and effective” implementation of the directive, and said of the other countries still to implement said directive: “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”.

Some of those who oppose ER have suggested that Germany and Belgium may have incorrectly implemented the 2019 directive by introducing new remuneration rights, pointing out that the three EU institutions involved in writing the directive – Commission, Council and Parliament – had the opportunity to include an explicit new ER right back in 2019, but chose not to.

However, responding to a formal question on this point raised by some MEPs in the European Parliament back in March, Breton says that, as far as he is concerned, EU states can choose to transpose article eighteen into their national laws by introducing a new remuneration right – or not – providing other European laws are complied with.

He writes: ”The Commission considers that, in principle, member states could transpose article eighteen 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 [European copyright rules]. Any provision implementing article eighteen should secure appropriate and proportionate remuneration to authors and performers and should not deprive them of their freedom to decide in the first place whether or not to license or transfer their rights”.

He declined to comment specifically on the German or Belgian implementations of the directive though, stating: “The Commission has not yet carried out a final legal assessment of member states’ implementing measures, considering that the implementation is still ongoing and around half of the member states have not yet transposed the Copyright Directive into national law. Therefore, the Commission is not yet in a position to issue any opinion on individual national implementations of the new Copyright Directive”.

Welcoming Breton’s statement, AEPO-ARTIS said on Twitter yesterday: “Today Commissioner Breton confirms that implementation of article eighteen of the Copyright Directive by means of an unwaivable remuneration right is a possibility that is in conformity with the directive. What does this mean for performers? It means that a right for them to receive ER for streaming IS compatible with the new EU Copyright Directive”.