Business News Digital Labels & Publishers Legal

PayPerformers says the “contractual system” for sharing out streaming income isn’t working

By | Published on Thursday 2 September 2021

Streaming services

The PayPerformers campaign has again called for the introduction of a Europe-wide “unwaivable remuneration right for performers” in relation to streaming, arguing that “the current contractual system” for sharing out digital income across the music and audio-visual industries “is not delivering fair remuneration for performers”.

That latter argument, it adds, is informed by the new CMU-produced guide ‘Performer Payments From Streaming’, which explains all the complexities around how performers share – or not – in the revenues generated by music and audio-visual streaming services.

In most countries, if and how performers earn when recordings and productions that feature their performances are streamed depends entirely on the contracts they negotiate with the producer, studio, broadcaster or record label that controls the copyright in each recording and production.

The new CMU guide – which was commissioned by PayPerformers – sets out to explain how those contracts generally work across Europe.

In the audio-visual domain, in a small number of countries those contracts have traditionally provided extra payments if programmes are rebroadcast or licensed to other broadcasters, and in some cases that principle has been extended to when programmes are streamed.

However, in most European countries, TV and movie contracts don’t traditionally provide any such rights, meaning performers often earn nothing when programmes they previously appeared in are made available via streaming services.

In music, session musicians likewise don’t usually have any contractural rights that allow them to share in streaming monies. However so called featured artists do, of course, even when they sign with a label that becomes the copyright owner in their recordings. However, quite how that works varies greatly from label to label, and deal to deal.

An artist may also have signed their record deal before streaming was a thing, meaning royalty provisions designed for a disc selling business have to be applied to a very different form of music consumption. As a result, artists on those older deals often make less money – sometimes much less money – when their music is streamed.

All of this means that – although featured artists earn from streaming – the share of the total digital pie they receive varies greatly across the industry. However, the new guide explains how an artist who signed a conventional record deal in recent years is likely to receive approximately 8.4% of any monies allocated to their recordings by a streaming service. Artists on older record deals are more likely to see 5% or less.

“The current contractual system is not delivering fair remuneration for performers”, PayPerformers stated yesterday. “CMU was able to confirm what had been known approximately before – actors generally receive nothing from streaming services, session musicians earn nothing, while featured artists earn between 5-8% on average of revenues generated by streaming”.

This is because, it added, performers are “in a weak negotiating position” when initially negotiating deals with producers, studios, broadcasters and labels. “Consequently, performers have not benefitted from the [streaming-led] sector boom at all. The system is broken, leaving actors, singers and musicians helpless and in dire need of a coordinated change throughout EU member states”.

Like the #brokenrecord and #fixstreaming campaigns in the UK, PayPerformers has long argued that there should be a unwaivable remuneration right for performers in copyright law that is linked to streaming, similar to that which already exists when music is broadcast or performed in public, and – in some countries – when TV programmes are broadcast or retransmitted.

PayPerformers yesterday cited article eighteen of the 2019 European Copyright Directive which says that performers should “receive appropriate and proportionate remuneration” from the exploitation of their works.

“PayPerformers urges member states to provide performers with ‘appropriate and proportionate remuneration’ as required by article eighteen of the Digital Single Market Directive”, it wrote in a blog post. “The best mechanism for providing fair remuneration is with an unwaivable remuneration right, subject to collective management”.

PayPerformers previously endorsed the UK-based campaigns calling for performer ER to be applied to streams. An ER system was also recommended in the recent ‘Economics Of Streaming’ report published by the UK Parliament’s culture select committee, one member of which – Kevin Brennan MP – is currently working on a private members bill that would change UK copyright law to that effect.

Although some in the wider music community – especially labels – have criticised those proposals, arguing that there are better ways to address any issues with the current system by which the digital pie is sliced between different stakeholders across the industry.

However, PayPerformers concluded yesterday: “An unwaivable remuneration right, subject to collective management, is the only way that member states can guarantee that performers will receive fair remuneration from streaming. This is the solution that is requested by performers throughout the EU”.

You can download a free copy of ‘Performer Payments From Streaming’ here.