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.