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FAIR INTERNET FOR PERFORMERS
AEPO-ARTIS |EuroFIA | FIM | IAO
QUESTIONS & ANSWERS
www.fair-internet.eu EN
FAIR INTERNET FOR PERFORMERS | Q&A
Q1. What is the AEPO-ARTIS, EuroFIA, FIM and IAO proposal?
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A new measure should be introducedin European law, complementary tothe relevant provisions of Directive2001/29 (the “Information Society Di-rective”) regarding the on-demand useof performances in the online environ-ment. This provision would guaranteethat performers enjoy an unwaivableright to receive equitable remunera-tion, notwithstanding any possibletransfer to the producer of their exclu-sive right for the making available ondemand of their performances, inde-pendent of any terms agreed for suchtransfer and in addition to any possible
contractual payments that are made byproducers in this respect.
Performers (e.g. musicians, actors,dancers, singers…) have been grantedan exclusive right to authorise or pro-hibit the making available to the publicon demand of their performances (EUCopyright Directive 2001/29/EC). Inpractice, however, this right has notbeen as effective as it should have, asmost performers receive no remunera-tion from these forms of exploitation.For this reason, AEPO-ARTIS, EuroFIA,FIM and IAO call for a measure to be
introduced in European law, guaran-teeing specific payments to perform-ers, whenever their performances aremade available on demand online tothe public. This remuneration shouldbe managed by performers’ collectingsocieties and paid by the users, i.e.those who make the services availableto the public on demand.
Specifically, AEPO-ARTIS, EuroFIA, FIMand IAO propose the incorporationwithin legislation of the followingwording:
“Where a performer has transferred or assigned the exclusive right of making available on demand, andindependent of any agreed terms for such transfer or assignment, the performer shall have the right toobtain an equitable remuneration to be paid by the user for the making available to the public of his fixedperformance. The right of the performer to obtain an equitable remuneration for the making available tothe public of his performance should be unwaivable and collected and administered by a performers’ col-lective management organisation.”
Q2. Why is the introduction of an unwaivable right to equitable remuneration necessary?In the digital age, performances aremade available on a massive scale ondemand. Most performers receive noadditional payment when their perform-ances are used in the online environ-ment. Indeed, more and more entitiesbenefit from the use of these perform-ances, without giving anything back tothose who contributed to them.
Performers are granted an “exclusiveright” by EU Copyright Directive2001/29/EC, which means that theymust give their consent if they wish toallow their performances to be madeavailable on demand online. However,the practical reality is that all too oftenperformers are forced to transfer thisright to producers (record companies,
film studios etc.) for a one-off, symbolicfee, or even for no additional paymentat all.
The EU legislation has therefore clearlyfailed to protect and adequately rewardperformers. The law must be changedso that protection granted to perform-ers is made effective in practice.
Q3. Is an unwaivable right to equitable remuneration something new in EU law?No. Such a right was already introducedin 1992 (Directive 1992/100/EEC, sub-sequently codified as Directive2006/115/EC) for when a performertransferred his/her rental right to a pro-ducer. Such equitable remunerationright was effective in a number of EUmember states, where payment wasmade directly by the users (i.e. rental
shops) and made subject to compulsorycollective management. When this pro-vision was introduced into the acquiscommunautaire, the rental right wassignificantly more valuable than it istoday. Performances are now viewed orlistened to on demand, online and arefar less frequently rented from a physi-cal outlet.
The acquis has established other guar-antees to make sure performers areremunerated for the exploitation oftheir work. This is the case, for in-stance, for the broadcasting and com-munication to the public of music,where Directive 2006/115/EC grantsthem a remuneration right.
Q4. Under which circumstances will this remuneration be paid?Where performers transfer or assigntheir exclusive making available rightto the producer – whether by individual
or collective negotiation – they shouldretain the right to receive equitable re-muneration for as long as their per-
formances are protected, as separatefrom any contractual arrangementsagreed for such transfer or assignment.
Q&A | FAIR INTERNET FOR PERFORMERS
Q5. Who should pay the remuneration?The remuneration should be paid bythe “user”, that is the many compa-nies and entities making audio and au-diovisual content available on demandonline. For example, it could be an on-
line service platform which offersmusic or audiovisual works on demandto download, such as iTunes, or as astreaming service, such as YouTube,Deezer or LoveFilm Instant. As users of
protected content, these organisationswould pay the remuneration to a per-formers’ collective rights managementorganisation.
Q6. Will a new remuneration right add to the complexity of licensing, especially multi-territorial licensing?No. A remuneration right would be anew element in the “chain” of com-mercial agreements betweenrightholders and users, insofar as itwould introduce a new payment toperformers that did not previouslyexist. It would be a simple andstraightforward mechanism to imple-ment and would not add any addi-tional licensing requirements, whilstrewarding performers individually for
the online and on demand use of theirwork.
The user would make a single paymentto one collective management organi-sation. Performers’ collective manage-ment organisations are already wellequipped to deal with this situationand have agreements in placewhereby equitable remuneration canbe distributed to the relevant
rightholders within the EU.
Producers, on the other hand, wouldbe able to maintain their existing busi-ness models. They would still acquirethe exclusive making available right ofperformers, through individual or col-lective negotiation, enabling them tofurther license the digital use of theseperformances.
Q7. Why can it not be left to contractual relationships between performers and producers?Most individual performers do nothave the power to negotiate fair con-tract terms. Performers are protectedby a statutory “exclusive right” (Direc-tive 2001/29/EC), which means thatthey must give their consent if theywish their performances to be madeavailable on demand online. However,the practical reality is that the largemajority of performers are forced totransfer this right to producers (recordcompanies, film studios etc.) in returnfor no or minimal additional payment.
Furthermore, it is not sustainable forproducers to argue that upfront feescan include “equitable remuneration”for online uses which are becomingever more diverse and difficult to as-
sess in terms of economic value at thetime when an audio or audiovisualwork is produced.
On the other hand, collective bargain-ing agreements do not provide for anEU wide solution. Only in a very limitednumber of countries (3 or maybe 4countries among the EU MemberStates) collective bargaining agree-ments may be considered as a practi-cal option. Even in these cases, someagreements may be limited to per-formers in the audiovisual field or maynot provide for remuneration for mak-ing available on demand. Additionally,it is important to note that theseagreements only protect performersengaged for a production carried out
under the terms of those agreements.This generally means that performersworking in other Member States underdifferent arrangements will not benefitfrom the terms of those agreementswhen their performances are madeavailable on demand in these othercountries.
The inclusion of an equitable remuner-ation right in the acquis need not prej-udice such collective bargainingagreements, in the few countrieswhere they exist. Such arrangementswould rather be complementary tosuch a right, not a substitute for sucha right.
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Q8. Under the AEPO-ARTIS, EuroFIA, FIM and IAO proposal, would some performers be paid a second timefor a right that has already been cleared?
No. The proposed equitable remuner-ation establishes a new mechanism,well fitted to the online world. It cre-ates a new, fairer balance that doesnot overlap with the current frame-work.
In the limited case where performersreceive royalty payments (eitherthrough individual or collective nego-tiation) after the transfer of their ex-clusive right, the proposed mechanismwould represent a complementary
channel of remuneration. Whereas aroyalty payment would typically bemade by the producer, the equitableremuneration would be paid by theuser (see question 4 in this regard).
Q9. How would the tariffs be set?Tariffs would depend on a number offactors such as the type of service, thetype of use made of the performance,the revenue of the user, etc. Different
member states have different practices(e.g. negotiations, arbitration, intellec-tual property tribunals, etc.) for deter-mining tariffs and the national
collective management organisationshave vast experience in reachingagreement on the level of tariffs to beset.
Q10. Will it make content more expensive and therefore encourage end-users to access illegal offerings?There are two possible scenarios fol-lowing the introduction of a guaran-teed payment to performers for themaking available on demand and on-line of their performances: either thestakeholders involved embrace a fairersharing of the income made from themaking available on demand online ofthese performances; or prices of con-
tent via on demand online servicesmay increase - though to a very limitedextent.
However, in the latter case, consumersmay feel a degree of satisfaction thattheir money is not only going to whatthey may perceive to be “greedy cor-porate entities”, but to the actual in-
dividual performer(s) involved. Internetusers are very sensitive to the “fair-ness” of the marketing models. There-fore, a guarantee that performers areremunerated on so called “legal uses”may actually help to dissuade peoplefrom using illegal sources. For thesame reasons, it can give added-valueto a user and the service it provides.
FAIR INTERNET FOR PERFORMERS | Q&A
AEPO-ARTISAssociation of EuropeanPerformers OrganisationsAv. de Cortenbergh 116 | B-1000 BrusselsTel. +32 2 280 19 [email protected]
FIMInternational Federation of Musicians21 bis rue Victor Massé | F-75009 ParisTel. +33 145 263 [email protected]
EuroFIAEuropean group of theInternational Federation of ActorsRue Joseph II, 40 | B-1000 BrusselsTel. +32 2 235 08 [email protected]
IAOInternational Artists Organisation226 rue Saint-Denis | F-75002 ParisTel. +33 9 70 26 12 [email protected]
A E P O A R T I S