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Leading academic says the best mechanism for an effective remuneration right for performers is collective management

In a detailed legal analysis, Professor Raquel Xalabarder, concludes that governments should implement an unwaivable remuneration right, administered collectively, in order to meet the legal objectives of the Copyright Directive.

Professor Xalabarder’s legal academic paper argues that,

“a verbatim implementation of the principle in Art.18 DSMD is not enough. Member States are expected and obliged to go further implementing, as necessary, “different mechanisms” to effectively secure fair remuneration of Authors and Performers”.

She analyses the legal mechanisms for ensuring fair remuneration. In order for governments to  implement the article on appropriate and proportionate remuneration in a meaningful way, the right should be unwaivable and administered by a collective management organisation.

The principle of fair remuneration in Art.18 DSMD not only confirms the important role of national legislators in securing that goal, but obliges them to explore and implement the full potential of these several mechanisms, adjusting them to different sectors as necessary”.

Professor Raquel Xalabarder considers the context of Article 18 and the mechanisms already successfully established in some member states (e.g. Spain). She argues that,

“(s)tatutory residual remuneration rights, granted by law as unwaivable (and inalienable) rights to receive remuneration subject to collective management (mandatorily, if necessary) and paid by users/licensees remain the best mechanism to secure effective fair remuneration for Authors and Performers, especially in the audiovisual and music sectors.”

That is the conclusion of the academic paper written by the Professor Raquel Xalabarder, a leading expert on international copyright law.

The implementation of the 2019 Copyright Directive provides national legislators with the structure to improve the situation of authors and performers throughout the European Union. In Chapter 3, this Copyright Directive mandates detailed provisions to ensure that artists benefit from their creativity, talent and work. That they receive “fair remuneration” from their music and videos on digital services. This is crucial for their livelihood without live opportunities due to Corona measures; consumers moving more and more to streaming services.

Professor Raquel Xalabarder analyses specifically the mandatory principles and rights in the Directive Copyright in the Digital Single Market 2019/790 – DSMD which strengthen the contractual position of authors and performers in the digital world. Member States have until 7th June 2021 to implement the relevant provisions into their national law.

In addition to provisions on transparency, contract adjustment and revocation, the Directive mandates appropriate and proportionate remuneration. This provision (Article 18) has been introduced on the behest of the European Parliament to make sure that individual artists creating and performing music benefit from their creativity in practice,  and not only tech companies and producers. It is now for national legislators to support their artists and culture.

Such remuneration which is complimentary to the transfer of exclusive rights to the producer complies with International Copyright provisions and the European Copyright Framework.

She summarises her ten final thoughts at the end of the paper (for those who don’t have the time to enjoy the development of her thorough argument in the paper). You can read Professor Xalabarder’s paper here.

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MUSIC AUTHORS AND PERFOMERS STRONGLY DENOUNCE EPIDEMIC SOUND’S MALPRACTICES AND ITS PROFOUND DISRESPECT FOR THEIR RIGHTS

The Association of European Performers’ Organisations (AEPO-ARTIS), the European Composer and Songwriter Alliance (ECSA), and the International Federation of Musicians (FIM) collectively represent over 500 000 composers, songwriters and performers. We feel compelled to speak out against the harmful development of Epidemic Sound for the ability of these professionals to make a living from their creations.

Over the recent years, the Swedish company Epidemic Sound has grown extensively by selling “royalty-free music” to various commercial companies, like video-on-demand platforms and TV stations. It uses 100% buy-out contracts – whereby music authors and performers sell their rights for the full term of protection in exchange for a lump sum payment – depriving them from payment of royalties and equitable remuneration, which are essential to their livelihoods. It also often substitutes the name of music creators with the company’s name in their credits, showing a profound disrespect for our members’ moral rights to be properly credited for their works and performances.

While our organisations regularly receive complaints from music creators about these malpractices, the tech company Adobe has recently partnered with Epidemic Sound and Jamendo to launch a library of “royalty-free” music. This partnership further hinders the music creators’ ability to earn a living from the exploitation of their works and performances. In a context where our members’ activities are under existential threat because of the COVID-19 pandemic and its consequences, the development of buy-out contracts eludes the collective rights management system and prevents guaranteed payments based on remuneration rights. The expansion of Epidemic Sound represents yet another threat to the fair remuneration of authors and performers in the music sector and their ability to develop sustainable careers.

We therefore firmly condemn this partnership, which relies on the expropriation of music authors and performers from their rights and legitimate revenues. We call on any public or private company to refrain from collaborating with an entity that disrespects authors and performers and their basic economic and moral rights. Moreover, we urge all authors and performers in the music sector to carefully consider all the potential consequences of buy-out agreements, whereby all their exclusive rights are transferred in perpetuity against no future revenue. The development of such buy-out malpractices, which do not even give credit to authors and performers, have nothing modern nor innovative. They simply prevent music creators from being paid fairly for the use of their works, which should no longer occur in the 21st century.

AEPO-ARTIS is a non-profit making organisation that represents 36 European performers’ collective management organisations from 26 different countries. The number of performers represented by the 36-member organisations of AEPO-ARTIS can be estimated at between 400,000 and 500,000. www.aepo-artis.org

The European Composer and Songwriter Alliance (ECSA) represents over 30,000 professional composers and songwriters in 27 European countries. With over 60-member organizations across Europe, the Alliance speaks for the interests of music creators of art & classical music (contemporary), film & audiovisual music, as well as popular music. composeralliance.org/

The International Federation of Musicians (FIM), founded in 1948, is the only body representing musicians’ unions globally, with members in about 65 countries covering all regions of the world. FIM is recognised as an NGO by diverse international authorities such as WIPO (World Intellectual Property Organisation), UNESCO (United Nations Educational, Scientific and Cultural Organisation), the ILO (International Labour Office), the European Commission, the European Parliament or the Council of Europe www.fim-musicians.org/

WIPO

WIPO’s Beijing Treaty on Audiovisual Performances Set to Enter into Force with Indonesia’s Ratification; Aims to Improve Livelihoods of Actors and other Audiovisual Performers

The Beijing Treaty on Audiovisual Performances gained a key 30th member, allowing entry into force of the international agreement designed ultimately to improve earning conditions for actors and other audiovisual performers vital to the films and television shows beloved by viewing publics worldwide.

With the ratification of Indonesia on January 28, 2020, the Beijing Treaty will enter into force for its 30 contracting parties on April 28, 2020. WIPO member states in 2012 approved the Treaty at a Diplomatic Conference hosted by the Chinese Government in Beijing, from where the Treaty takes its name.

Many audiovisual performers – television and film actors, musicians, dancers, choreographers and others – never reap great fortunes and could in fact use some support in ensuring the sustainability of their livelihoods.

WIPO Director General Francis Gurry

The Beijing Treaty bolsters AV performers’ rights to their work, which translates into rising earnings, and promotes the economic sustainability of the audiovisual industry that delights us all.

WIPO Director General, Francis Gurry

The Beijing Treaty is the most important thing that has happened to actors since the invention of cinema.

Javier Bardem, Actor

About the Beijing Treaty

The Beijing Treaty deals with the intellectual property (IP) rights of performers in audiovisual performances, notably by bolstering five kinds of exclusive economic rights for the beneficiaries’ performances fixed in an audiovisual format: The rights of reproduction, distribution, rental, making available and broadcasting and communication to the public.

By joining the Treaty, its members agree to adopt, in accordance with their legal systems, the measures necessary to ensure the application of the Treaty. In particular, each contracting party must ensure that enforcement procedures are available under their laws, permitting effective action against any act of infringement of rights covered by the Treaty. The action must include expeditious remedies to prevent and defer infringement.

Background

The Beijing Treaty modernizes and updates for the digital era the protection for singers, musicians, dancers and actors in audiovisual performances contained in the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961). These updates for the digital era complement the provisions in the WIPO Performances and Phonograms Treaty (WPPT), which updated protections for performers other than audiovisual performers and for producers of phonograms.

Find out more

About WIPO

The World Intellectual Property Organization (WIPO) is the global forum for intellectual property policy, services, information and cooperation. A specialized agency of the United Nations, WIPO assists its 192 member states in developing a balanced international IP legal framework to meet society’s evolving needs. It provides business services for obtaining IP rights in multiple countries and resolving disputes. It delivers capacity-building programs to help developing countries benefit from using IP. And it provides free access to unique knowledge banks of IP information.

WIPOWIPO Director General Francis Gurry