FIM

On Thursday 14 September 2016, the European Commission issued its pro­posed direc­tive on copy­right in the Single Digital Market. This com­mu­ni­ca­tion was on the same day that President Juncker was mak­ing his 2016 State of the Union Address.

Declarations made on this occa­sion by Commission rep­re­sen­ta­tives are not lack­ing in ambi­tion or even empha­sis. Thus, we like to hear Jean-​Claude Juncker when he states: “Artists and cre­ators are own crown jew­els. The cre­ation of con­tent is not a hob­by. It is a pro­fes­sion. It is part of our European culture”.

The Commission’s press release men­tions “a mech­a­nism to help authors and per­form­ers obtain a fair share when nego­ti­at­ing remu­ner­a­tion with pro­duc­ers and publishers”.

European Commissioner in charge of edu­ca­tion, cul­ture, youth and sports, Tibor Navracsics, is right to state that authors and per­form­ers “deserve to receive their fair share of rev­enues gen­er­at­ed by their creations”.

We were there­fore enti­tled to expect that the pro­posed direc­tive reflects the ambi­tions so bold­ly dis­played by Messrs. Juncker, Oettinger, Ansip or Navracsics. In prac­ti­cal terms, there is some way to go between words and deeds and per­form­ers are unfor­tu­nate­ly the big losers in this text.

Articles 14 to 16 of title IV, chap­ter 3, pro­vide some pos­si­ble answers to the requests of cre­ators, by intro­duc­ing rules where trans­paren­cy is con­cerned and the pos­si­bil­i­ty of mak­ing a peti­tion to cor­rect, a pos­te­ri­ori, a con­tract that is noto­ri­ous­ly unfair con­cern­ing rev­enues gen­er­at­ed. Nevertheless, these arti­cles fail to ful­fil the expec­ta­tions of the vast major­i­ty of per­form­ers, who are request­ing guar­an­teed remu­ner­a­tion each time a title is down­loaded or lis­tened to via stream­ing from a plat­form such as Spotify, Apple Music or Netflix.

There is some way to go between words and deeds and per­form­ers are unfor­tu­nate­ly the big losers in this text

It is clear that these rules were only thought out for lead­ing authors and per­form­ers, as wit­ness the ref­er­ences to a “sig­nif­i­cant con­tri­bu­tion”, an “admin­is­tra­tive bur­den […] dis­pro­por­tion­ate in view of the rev­enues gen­er­at­ed” or “dis­pro­por­tion­ate­ly low” con­trac­tu­al remu­ner­a­tion com­pared to all income from exploita­tion of the work.

Even for the few artists of renown like­ly to ben­e­fit from these new rules, the mech­a­nism pro­posed has an insuf­fi­cient scope. Not only does it depend large­ly on con­di­tions of trans­po­si­tion into nation­al leg­is­la­tion and its inter­pre­ta­tion, but, more gen­er­al­ly, it is based on the premise that, by nature, artists’ con­tracts are fair. Thus, the bur­den of proof is on artists, as well as the oblig­a­tion to under­take com­pli­cat­ed, lengthy, cost­ly and uncer­tain pro­ce­dures to try to rem­e­dy an unfair sit­u­a­tion. Besides, giv­en the frag­ile sit­u­a­tion in which most artists find them­selves, few of them, dur­ing their career, will risk alien­at­ing their pro­duc­er by insti­gat­ing such a pro­ce­dure against him/​her.

The pro­pos­al of the Fair Internet coali­tion con­sti­tutes the most real­is­tic and effi­cient solu­tion to make Internet fair for all European per­form­ers, by pro­vid­ing for enti­tle­ment to unwaiv­able remu­ner­a­tion, col­lect­ed from plat­forms and man­aged collectively.

The Fair Internet Campaign ‑in which FIM is involved- will con­tin­ue to address the European Parliament in order to cor­rect the short­falls in the Commission’s text, includ­ing the word­ing of arti­cles 14 to 16.