Brussels, 5 October 2015 | FAIR INTERNET coalition comments on European Commission’s study on the remuneration of authors and performers
We, AEPO-ARTIS, EuroFIA, FIM and IAO, partners of the FAIR INTERNET campaign, who represent over 500.000 musicians, singers, actors and dancers, have noted with interest the publication of a European Commission study on the “remuneration of authors and performers for the use of their works and the fixations of their performances” in July 2015.
We would like to stress our concerns as regards the quality of the study and the reliability of the data. Nevertheless, we welcome that efforts to strengthen the protection of Europe’s musicians, singers, actors and dancers form part of the on-going reform process of the EU copyright acquis. We now urge the European Commission to build upon policy option 5c of the study proposing a mechanism which will guarantee the fair remuneration of performers for streaming and download services.
The European Commission must now bring it to the next level vis-à-vis the on-going reform process as a matter of priority. The FAIR INTERNET campaign partners are ready to engage with the European Commission in this regard.
By way of example, regarding the quality of the study:
• The study is built upon little reliable data and it therefore seems questionable that the findings of the study are accurate and conclusive. This is also stated by the authors of the study (at p.134).
• The data on which the analysis is based is not representative of all performers in the countries covered by this study. This is also expressly stated by the authors of the study (p. 130, see also p. 134).
• The study also omits very important information that has been provided to the authors of the study and should have been taken into consideration, at least in the legal analysis. In particular, we would like to point to the 2006 amendment of the Spanish copyright law which introduced an equitable remuneration for audio and audiovisual performers for the making available right. There is absolute no reference to this law or any consideration of its impact on performers’ remuneration included in the study.
Despite the shortcomings of the study, it is evident that today’s EU legislative framework has proven to be ineffective in protecting performers and ensuring that they can enjoy any financial rewards from on-demand and streaming services.
The study highlights the weak negotiating power of the majority of performers and confirms that the vast majority of performers simply receive a lump sum payment for the transfer of ALL their rights granted under EU legislation.
In this regard, we consider the study recommendation and policy option 5c, namely to create an equitable remuneration for performers for the making available right administered by collective management organisations, a step in the right direction.
Contrary to the recommendation of the study, this policy option should not be considered as a “fallback” position. Clearly there is no singular all-encompassing solution and we highly recommend that the European Commission assesses a variety of solutions that would include option 5c. Option 5c provides the safety of a guaranteed remuneration for performers for on-demand use, subject to mandatory collective management.
We would also advise that option 5c would not be considered on a country by country basis as proposed by the study. Only an EU level initiative will achieve full harmonisation and a level-playing field for all of Europe’s performers.
The payment of the equitable remuneration should be made by the user, i.e. the commercial platforms such as iTunes, Spotify and Netflix. This element is crucial in ensuring its success in practice.
Moreover, such equitable remuneration should neither be regarded as a replacement for a lump sum payment but in addition to it. In any case lump sum payments are made for the transfer of ALL rights not just the making available right.
An equitable right to remuneration for the making available right is both simple and straightforward to implement. It will not be to the detriment of the industry but would finally bring some equity into the business. Existing contractual practices, whether individual or collective, between performers, producers and users would be left unchanged. Moreover, performers’ collective management organisation are already in place and have the necessary expertise to administer such a remuneration right.
The current situation is no longer acceptable in an ever growing digital market. It is high time to create a fair share for Europe’s performers.
The FAIR INTERNET campaign calls upon the European institutions to move forward and to create a sustainable cultural and creative sector where performers get a fair share of online revenues, through an unwaivable remuneration right for digital uses of their work, collected from the users who make the performances available on demand and subject to mandatory collective management.