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 reflect 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.
Clearly, 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 with respect to 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.
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 a very limited 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 complex, long, costly and uncertain procedures to try to remedy an unfair situation. In addition, 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.