Direct Remuneration to Creators and Performers

Background

In the cultural industry, the imbalance between the turnover from the exploitation of works and the revenues of creators and performers is an old problem that however has become more pronounced in the era of online streaming. One important factor behind this phenomenon is the weaker bargaining position of creators and performers when licensing or transferring their rights for exploitation in return for remuneration. Furthermore, as copyright contracts are usually of long duration, the inadequacy of negotiated terms can be exacerbated over time by changes in the works’ reputation and value. This problem has been tackled in different ways. A preliminary comparative study on this subject revealed that a line of action frequently adopted in developed countries aims at strengthening the position of creators and performers via mandatory contractual rules – transparency obligations, revocation rights or other similar limitations – as well as standards aimed at securing fair remuneration of creators. This approach was applied in Germany, for instance, as early as 2002. However, even in countries like Germany, where copyright contractual rules have been in place for decades, revenue sharing remains an open issue, especially in digital markets.

Since one of the main obstacles to ensuring that creators and performers receive an adequate share of revenues is the unbalanced relationship between them, on the one hand, and producers or other derivative right holders, on the other hand, another approach aims to provide creators and performers with an independent right to remuneration for the use of their works or productions within the framework of certain business models (e.g. by online platforms). This is achieved through the application of direct remuneration systems, which have the advantage of changing the market structure, providing creators and performers with a direct and unwaivable remuneration right vis-à-vis the economic players who make content available to end users. The concept of direct remuneration has already been the subject of research interest at the Institute in past years, especially in relation to the EU’s Rental Rights Directive.

In the implementation of the Directive on Copyright and Related Rights in the Digital Single Market (2019/790, CDSM Directive), some Member States, such as Belgium, have turned to direct remuneration schemes in certain specific cultural industries. Other European countries already had similar systems in place before the implementation of the CDSM Directive (e.g. Italy and Spain). A number of non-European countries have also adopted direct remuneration systems in particular sectors. The Swiss legislature, for instance, turned to a direct remuneration system for the online exploitation of audiovisual works and performances in 2019.

Content of the Project

The project aims to produce a comparative study of existing direct remuneration systems. In our study we review a large number of countries at global level and compare those who have implemented such systems. The study is methodologically based on comparative legal analysis of legal provisions and case law and, where possible, of practices regulating the direct remuneration of creators and performers in EU and non-EU countries. Due to the complexity of remuneration systems and the difficulty of finding information on the relevant rules and how they work in practice, the study relies upon a survey of domestic academic experts. In order to answer the questions concerning the existence of direct remuneration systems and the definition of their characteristics in each country, a questionnaire was distributed to about forty national rapporteurs. Following exchanges with the national rapporteurs, notes of clarification were sent out to further circumscribe the scope of the survey. In addition, the national rapporteurs are given ongoing guidance to ensure that their reports are in line with the objective and scope of the survey as much as possible. This will facilitate the comparison of all responses, which is planned by the end of 2024. The research results will first be published in Open Access in the Institute's research paper series and then submitted to a scientific journal.

Publication

Moscon, Valentina, Fair Remuneration of Authors and Artists, in Andrea Biondi, Oana Stefan (eds.), Encyclopedia of European Law (2024), Edward Elgar Publishing, Northampton, MA, USA; Cheltenham, UK 2024, forthcoming.