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IMPALA calls for visas, performing rights and reciprocity to be discussed at EU-US summit

By | Published on Tuesday 15 June 2021


After a few days in sunny England bumping elbows with G7 leaders and politely smiling at Britain’s Bullshitter In Chief ‘Boris’ Johnson, US President Joe Biden is in Brussels today for a big old summit with the European Union.

Ahead of that, the pan-European trade group for the independent music sector, IMPALA, has called on EU chiefs to include two key music industry related talking points in its discussions with Biden’s team: the current limitations on the sound recording copyright Stateside and the continued visa issues European artists face when trying to perform in the US.

IMPALA is one of a plethora of creative industry organisations that recently signed a letter to EU and US leaders noting the impact that visa issues – both for European artists touring America and vice versa – have on cross Atlantic cultural exchange, which everyone hopes will restart again as soon as possible as COVID restrictions on performances and international travel start to lift.

The letter criticised the “difficulties that artists, crew and cultural professionals encounter which relate to cumbersome and costly visa processing when travelling to the USA for the purpose of work, and the great variety of conditions US artists face to obtain work permits in the different countries of the EU”.

“Reducing the obstacles to visas and work permits is therefore an essential instrument to bring hope, future and a new start of cultural exchange between the two continents”, it added. And to help achieve that, “experts in the EU and US would be glad to jointly prepare recommendations, and we welcome the chance to provide you with these recommendations”.

“Whilst the US and EU can be proud of a thriving cultural exchange, we, the artist communities on both sides of the Atlantic call upon you for a solution-oriented approach as regards artist mobility”, it went on. “Artist mobility produces a backbone of additional trade – flights, hotels, catering, hire of local services, road haulage, local taxes, etc – and thus generate income for many other side industries”.

The big copyright issue relates to the fact that, under US law, there is no general performing right for sound recordings. This means that, unlike in Europe, AM/FM radio stations and public premises playing recorded music do not need to secure licences from or to pay royalties to artists and labels.

This deficiency in US copyright law is a cause for concern for both the US and European music industries, both of which have long called on American law-makers to bring the country’s copyright rules in line with Europe and most other mature music markets when it comes to performing rights. Although a related legal technicality has caused some disagreement between the music communities on each side of the Atlantic.

Performing rights income – often called neighbouring rights income these days – is generally managed by the record industry’s collecting societies. Those societies collect royalties from broadcasters and businesses playing recorded music in public and pass the money back to artists and labels whose music was used. If those artists and labels are based in other countries, the money often flows via reciprocal deals to societies in said artists and labels’ home country.

However, what happens if the foreign artist or label is based in a country with no performing right – like the US – which means no royalties are flowing in the other direction? That depends, but in some countries a so called “reciprocity” approach is in force, meaning monies only flow to artists and labels in other countries where performing rights exist. Which is most countries, but, crucially, not the US. This reciprocity rule sometimes applies to both artists and labels, or sometimes just to artists.

US collecting society SoundExchange has started to hit out at countries that apply this approach in recent years, calling on the US Trade Representative to put pressure on countries like the UK, Australia, Canada, France, Japan and the Netherlands – which employ some kind of “reciprocity” approach – to abandon that practice in favour of a so called “national treatment” system, which would mean American artists having the same rights as local artists, oblivious of the limitations of US copyright law.

This came to a head in Europe last year because of a ruling in the European Union courts in relation to a dispute in Ireland between the label and performer collecting societies there – PPI and RAAP respectively. A “reciprocity” approach applies to artists in Ireland, meaning American performers are not due royalties when their recordings are broadcast or played in public in the country.

However, the EU courts ruled that the current Irish approach is not in line with European law and the way the EU has chosen to interpret the global copyright treaties.

The court basically said that because the specific European directive relevant to the Irish case didn’t mention the “reciprocity” approach, EU member states couldn’t apply it. The previous assumption – actually backed by the European Council – was that because the relevant directive was silent on “reciprocity”, EU member states could apply it.

Noting that this was now a pressing issue for the European record industry, IMPALA said yesterday: “The European Commission is currently reviewing the disastrous impact of a decision of the European Court Of Justice of September 2020 on thousands of recording artists and smaller labels in Europe”.

“The court flagged that the principle of reciprocity now needs to be specific in legislation and the EC is looking at this issue. Without fixing that, European collecting societies for producers and performers would have to pay to countries who don’t provide for reciprocal rights for their own territory. For the USA alone, the amount at stake exceeds 125 million euros annually”.

“At a time when revenues from broadcasting and public performance have plummeted and performers have been unable to play live for such a long time as a result of COVID”, it went on, “this will have a devastating effect on many European performers and labels. IMPALA looks to the EU to fix this situation urgently so that EU member states can continue to decide individually for themselves whether they want to apply this principle, as they have been able to for decades”.

Of course, while in the short term the record industry wants the EC to amend the relevant directive to confirm that the “reciprocity” approach is allowed in the European Union, if member states choose to adopt it, a better solution would be for American law-makers to introduce a full performing right for sound recordings in the US. Both the issues around “reciprocity” and the deficiencies in US copyright law should also be discussed during the EU-US summit, IMPALA argues.

The organisation’s Executive Chair, Helen Smith, said yesterday: “The EU-US summit is an excellent opportunity to reinforce the vital principle of reciprocity, and for the new US President to take the lead and bring American copyright laws into line with European and international rules. This is ultimately about maximum protection for all. We need to urgently reinforce reciprocity of treatment otherwise huge sums will now have to be paid across the Atlantic for US sound recordings with little in return in respect of EU recordings played or performed in the USA. Now is not the time to lose 125 million euros per year. European parliamentarians have also flagged the importance of this issue”.

Meanwhile, IMPALA President Kees van Weijen – also chair of STOMP, the indie label organisation in the Netherlands, a country affected by last September’s ruling – added: “The European Union has a long history of strong protection of producers and performers in the music industry. Its approach has been an example for many to follow. The United States is unique in the world as the only major music market not providing performers and labels with income from the playing of music on terrestrial radio and in public places”.

“Reciprocity remains an important tool to convince the US to bring their legislation up to the level of the European Union and create a true level playing field for the European and American music industry”, he added. “In the Netherlands alone, we can already see the impact of this case on Dutch labels and performers in a big way, especially independent labels and artists”.