SAA - Society of Audiovisual Authors

Abstract

This article examines how EU Member States have implemented Article 18 of Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market (DSM Directive), which introduced the principle of appropriate and proportionate remuneration for authors and performers. While several countries merely transposed the provision without establishing new mechanisms, other used the opportunity to strengthen the position of audiovisual authors. Belgium, Croatia, Denmark, France, Germany, Lithuania, Poland, Portugal, Romania and Slovenia adopted notable measures that ensured more effective remuneration, particularly in relation to streaming services and user-generated content platforms. These reforms complement pre-existing protection in Estonia, Italy, the Netherlands, Spain and Switzerland. Rather than offering an exhaustive survey, the article highlights the most inspiring legislative practices that advanced the Directive's objective of enabling audiovisual authors to fully benefit from their rights under Union law.

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There are strong similarities between AIPA and the SAA: we are young, committed and active organisations in the protection and promotion of audiovisual authors’ rights. Like AIPA, the SAA is celebrating its 15^th anniversary in 2025 and can be proud of many achievements.

Among these achievements is the adoption of the Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market (hereafter the Directive). The Directive includes an important chapter 3 “Fair remuneration in exploitation contracts of authors and performers” in Title IV “Measures to achieve a well-functioning marketplace for copyright” that aims at helping authors and performers to fully benefit from their rights harmonised under Union law. In addition to the transparency obligation (Art 19), contract adjustment mechanism (Art 20) and alternative dispute resolution procedure (Art 21) proposed by the European Commission in its proposal of 14 September 2016, a principle of appropriate and proportionate remuneration (Art 18) was added to the Directive, thanks to the European Parliament. It reads as follow (the bold parts are my emphasis):

Article 18: Principle of appropriate and proportionate remuneration

1. Member States shall ensure that where authors and performers license or transfer their exclusive rights for the exploitation of their works or other subject matter, they are entitled to receive appropriate and proportionate remuneration.

2. In the implementation in national law of the principle set out in paragraph 1, Member States shall be free to use different mechanisms and take into account the principle of contractual freedom and a fair balance of rights and interests.

Recital 73 provides some explanation:

(73) The remuneration of authors and performers should be appropriate and proportionate to the actual or potential economic value of the licensed or transferred rights, taking into account the author's or performer's contribution to the overall work or other subject matter and all other circumstances of the case, such as market practices or the actual exploitation of the work. A lump sum payment can also constitute proportionate remuneration but it should not be the rule. Member States should have the freedom to define specific cases for the application of lump sums, taking into account the specificities of each sector. Member States should be free to implement the principle of appropriate and proportionate remuneration through different existing or newly introduced mechanisms, which could include collective bargaining and other mechanisms, provided that such mechanisms are in conformity with applicable Union law.

The Directive should have been implemented by the 27 EU Member States by 7 June 2021 but suffered delays in many countries due to the COVID-19 pandemic. Only three countries implemented the directive by the deadline (The Netherlands, Hungary and Germany). We had to wait until the summer of 2024 and Poland’s implementation for the completion of the transposition process.

I would like to review the implementation of Art 18 in the Member States in the light of the Directive’s objective of improving the position of authors and performers and providing them with further protection to enable them to benefit fully from their rights (recital 72).

While this objective was not achieved in many countries who just copied-pasted Art 18 without introducing any remuneration mechanisms (Austria, Bulgaria, Cyprus, Finland, Hungary, Ireland, Latvia, Luxembourg, Malta, Sweden and to a lesser extend Czech Republic, Greece, Slovakia), a significant number of countries improved the legal protection of audiovisual authors (Belgium, Croatia, Denmark, France, Germany, Lithuania, Romania, Poland, Portugal, Slovenia). These ten Member States joined the group of European countries with pre-existing legislation protecting audiovisual authors (Estonia, Italy, the Netherlands, Spain, Switzerland).

In this article, I will not provide an exhaustive review of the implementation legislation but will focus on a selection of the best legal practices that provide effective protection and remuneration to audiovisual authors for the exploitation of their works, in particular on streaming services and UGC platforms.

1. Countries who seized the opportunity of Article 18 to strengthen audiovisual authors’ rights

Several Member States which did not previously provide mechanisms for the remuneration of audiovisual authors in their national law, have taken the opportunity provided by the Directive to introduce positive provisions in their transposition law aimed at improving the remuneration of audiovisual authors for the exploitation of their works. The best legislative changes are presented below in the alphabetic order of the names of the countries.

Belgium

Belgium introduced statutory remuneration rights for audiovisual authors who have transferred their exclusive right of communication to the public to a producer (Law voted on 16 June 2022, published on 1^st August 2022, amending the Code of Economic law). When there is no collective bargaining agreement in place, the management of the statutory remuneration right of the author can only be exercised by a collective management organisation (CMO). With the new law, Belgium modified its previous system of voluntary collective management agreements regarding VOD exploitation and introduced a non-transferable and unwaivable right to remuneration, with mandatory collective management (Article XI.228/11). Moreover, following the German example, Belgium provided for a similar unwaivable right to remuneration for authors in cases of communication to the public by online content-sharing providers (OCSSPs), with mandatory collective management (Article XI.228/4).

In Belgium, audiovisual authors already had an unwaivable and non-transferable right to remuneration, with mandatory collective management for the cable retransmission of their works, which was extended to also cover retransmissions by other means (Article XI.225 of Code of Economic Law). Similarly, the law provided an unwaivable and non-transferable right to remuneration, with mandatory collective management, for direct injection (Art XI.227).

Business operators opposing statutory remuneration rights for authors and performers sued the Belgian government for its implementation of the Directive to the Constitutional Court. In its decision 98/2024 on 26 September 2024, the court referred 13 questions for a preliminary ruling of the CJEU (Case C-663/24) mostly copied-pasted from the requests of the applicants (Google, Spotify, Meta, Streamz, Sony Music and Others).

Among the 13 questions, two of them directly refer to Art 18 DSM, one of which asks if Art 18 DSM must be interpreted as precluding a provision of national law establishing an inalienable and non-transferable right to compulsory remuneration for authors and performers of a sound or audiovisual work, which can be exercised only through compulsory collective rights management, in the event that they have assigned their right to authorise or refuse the communication to the public of their works by a streaming service provider, in particular where the right of making available to the public has already been licensed to the abovementioned provider. SAA members in Belgium are involved in the case to defend Belgian implementation and they are supported by the whole SAA community.

France

In France for many years, an exclusive right to remuneration through voluntary collective rights management agreements have enabled audiovisual authors to receive remuneration for the exploitation of their works for many types of exploitation of their works (broadcasting, VOD exploitation, communication to the public by OCSSPs, etc.) in a context where the principle of ‘proportional’ remuneration already existed in the law for authors (Article L131-4 § 1, Intellectual Property Code). French authorities have nevertheless implemented additional provisions to secure respect and implementation of this principle of proportional remuneration with the transposition of the Directive. It was added that it was not possible to derogate from this principle by agreement (the provisions are then of public order) and a new Article L.132-25-2 requested that collective professional agreements specify the modalities of the remuneration of authors per mode of exploitation.

The Directive’s transposition also embodied a step forward regarding transparency obligations for online platforms. Article L. 132-18 required audiovisual media services to send CMOs, with which they have concluded a general representation contract, information on the number of downloading’s acts, consultation, listening or viewing of works. They must transmit this information "at appropriate intervals for the distribution of rights". The CMOs are entitled to communicate to individual author members the information on the consumption of their own works.

Moreover, the Ordinance of 21 December 2020, implementing the EU Directive 2018/1808 on Audiovisual Media Services excluded from the quotas of European works and public financial support the works whose production contracts do not respect the moral rights and the exclusive right to receive a proportional remuneration of the authors.

Germany

Germany transposed Art 17 of the Directive with a separate Act on the Copyright Liability of Online Content Sharing Service Providers, introducing an appropriate remuneration right for authors for the exploitation of their works by OCSSPs. It is due from the service provider for the contractually authorised communication to the public of the work, even if the author has granted a third party the right to communication to the public. The author may not waive this entitlement to direct remuneration and may only assign it in advance to a CMO.

In Germany, the Copyright law already provided for an unwaivable right to remuneration for audiovisual authors for the cable retransmission of their works with mandatory collective management (Article 20b (II)). With the implementation of the SatCab II Directive[1], the remuneration right was extended to cover all retransmissions (Article 20b (II)) and the newly introduced direct injection (Article 20d (II)).

Lithuania

Lithuania implemented a hybrid system, which combines voluntary and mandatory (for retransmission, direct injection, add-on services, private copying) collective management models. The law amending the Copyright and Related rights law, clarified that once the author's rights or the right to receive remuneration are administered by a CMO, the right to receive remuneration for the use of such rights is irrevocable (contracts by which the author renounces it are invalid) and non-transferable (Article 11(3)). The amount of royalties must be appropriate and proportionate for each use of the audiovisual work.

Romania

Romania implemented the Directive with Law no. 69/2022, amending Law no. 8/1996 on copyright. New article Art 40¹ transposed Art 18 and recital 73 of the Directive providing for the use of mechanisms such as collective agreements or collective bargaining agreements when implementing the principle of appropriate and proportionate remuneration. Moreover, a new Art 44 (1¹) was introduced in the law stating that in addition to the remuneration provided for in (1) regarding the copyright assignment agreement, the author has the right to collect, through the collective management organisations, the remuneration due from the real use of the work, if there are no contrary provisions in the assignment agreement. This new provision Art 44 (1¹) aimed at securing that the money collected by CMOs was to be distributed to authors and performers, and not producers, despite the presumption of transfer of rights to the latter.

Poland

Thanks to the mobilisation of filmmakers and their representative organisations, Polish screenwriters and directors now enjoy an unwaivable right to remuneration with compulsory collective management for the exploitation of their works online. Poland was the very last country to implement the Directive, five years after its adoption and three years after the deadline for implementation. The new law came into force on 20 September 2024. By amending Art 70 of the Polish Copyright Act, the law now provides audiovisual authors with an unwaivable and inalienable right to remuneration for the on-demand (streaming), online uses (user generated content platforms) and retransmission of their works, to be paid by the platforms and managed collectively. It builds on the positive experience of the collective management of audiovisual authors’ rights in Poland and levels the playing field by extending the rules to the new modes of exploitation.

Prior to implementation, the Polish Copyright Act already granted co-authors of an audiovisual work the right to a proportionate and equitable remuneration for the exploitation of their works by broadcasters, cinemas, hotels, restaurants, public transport, etc. This remuneration had to be paid by the users through a CMO.

Portugal

The Decree-Law 47/2023 of 19 June 2023 implementing the Directive allows for the management of copyright through extended collective licensing mechanisms. New Art 36-A and 36-B of the Law 26/2015 on Collective Management Organisations transposing Article 12 of the Directive now provide the CMOs operating in Portugal with the possibility to extend the effect of their licences to non-member rightsholders. CMOs need to communicate such intention to the General Inspection of Cultural Activities (IGAC) and publicize it on their respective website.

Slovenia

Last in alphabetical order but not least in importance, Slovenia transposed the Directive by amending both the Copyright Act and the Collective Management Act, securing statutory remuneration rights for audiovisual authors with mandatory collective management. The implementation law resulted in several statutory remuneration rights, to be managed by CMOs. Article 107 “Film production contract” of the Copyright Act was amended to provide that the co-authors of an audiovisual work have among others, unwaivable rights to remuneration for retransmission, communication to the public by OCSSPs, communication to the public by VOD services and the making available not covered by OCSSP and VOD uses. These new remuneration rights, as part of the communication to the public right, are mandatorily managed by CMOs. AIPA was of course instrumental in this result by mobilising the creative community in Slovenia and supporting the changes with economic studies showing the added value of associating audiovisual authors to the exploitation of their works.

2. Pre-existing positive legislation for audiovisual authors

The issue of buy-out contracts whereby authors’ rights are transferred to a producer for a lump sum payment is not new to the European audiovisual industry and was addressed by several countries before the adoption of the Directive. European countries like Estonia, France (see above), Italy, Poland (see above), the Netherlands, Spain and Switzerland have been proactive in defending author’s rights and securing authors’ remuneration for the exploitation of their works on different media by establishing statutory remuneration rights with mandatory collective management.

Estonia

Since 1999, Estonia’s Copyright law (Article 14 (6)) has been providing that when the author of an audiovisual work transfers her economic rights to a producer, she retains the right to obtain an equitable remuneration from the broadcaster or any other operator who uses the audiovisual work. Any waiving of this right to equitable remuneration is void.

Italy

Since 1997, the Italian Copyright law (Article 46bis) has been providing authors who transfer their broadcasting rights to a producer, with a right to equitable remuneration paid by broadcasters for broadcasting and each use of their work which constitutes an act of communication to the public. For all other types of uses of the audiovisual work, the authors have a right to equitable remuneration for each act of exploitation to be paid by those who exercise the exploitation rights. The law also confirms that the author cannot waive this right.

The Netherlands

Since 2015, the Dutch Copyright Law (Article 45d) has been requiring that anyone carrying out a communication to the public of an audiovisual work, must pay a proportionate and equitable remuneration to the co-authors of the work who have transferred this right to the producer. This right cannot be waived and shall be exercised by organisations representing authors’ interests. The creation of this remuneration right in the Netherlands aimed to fix significant problems in the country with the remuneration due for cable retransmission.

In 2020, an evaluation report of the Copyright Contract Law made by IViR[2] concluded that the system of voluntary collective management for the on-demand exploitation of audiovisual works did not work in the Netherlands and suggested extending the remuneration right for broadcasting and retransmission to on-demand exploitation, to be paid by video-on-demand services, with mandatory collective management. Since then, however, no progress has been made.

Spain

Since 1996, the Spanish Copyright law (Article 90) has been providing authors with the right to receive remuneration for the exploitation of their works from the operators who exploit them, irrespective of the contract signed with the producer. This right is inalienable, unwaivable and mandatorily exercised by CMOs.

Switzerland

Switzerland provides for a combination of voluntary collective management practices and unwaivable rights to remuneration. Since April 2020, the Swiss Federal Copyright Act has been providing for an unwaivable and inalienable right to remuneration for authors of audiovisual works, with mandatory collective management, for the making available of the audiovisual works (Article 13a).

3. Statutory rights to remuneration with mandatory collective management are the way forward for audiovisual authors

The legislation of the above-mentioned European countries contains elements that combine statutory rights to remuneration with mandatory collective management to secure that audiovisual authors receive remuneration for the different types of exploitation of their works from the users that distribute them. This model of a statutory unwaivable, non-transferable and inalienable right to remuneration for audiovisual authors for the communication to the public of their works, paid by the operators who exploit the works and managed by the authors’ collective management organisations (CMOs) has been spreading across Europe in the recent years, in particular to address the on-demand exploitation of the audiovisual works.

An efficient model for both authors and users of their works

The reason for the success of such a model is its efficiency: the remuneration is paid by the distributors of the works according to their exploitation of the works on their services, based on an agreement negotiated by the authors’ CMO that represent an important repertoire of national and EU authors. The burden of payment falls not on the producers but on the services that exploit the works.

Such a statutory remuneration mechanism is not only good for the authors, but it also sustains a healthy development of the industry. As demonstrated by the national case studies[3] conducted by CISAC and the SAA, collectively managed statutory rights have no negative impact on the operations of audiovisual services. For example, Spain has been a European production hub for global video-on-demand platforms for years now. In addition, where the legislation effectively protects and remunerates audiovisual authors for the exploitation of their works, it encourages the creation of original quality works that can compete in a globalised market. Far from being an obstacle, the legal recognition of non-transferable and unwaivable remuneration rights to audiovisual authors with collective management, helps to attract and retain the best authors and to support the growth of the audiovisual sector.

According to the recommendations of eminent Professors of law (Raquel Xalabarder[4], Bernt Hugenholtz[5]), such a remuneration mechanism needs its four ingredients to be provided in the law to be effective: a statutory right, unwaivable and non-transferable, paid by the users and collectively managed. This is the best and only secure way to ensure that audiovisual authors receive royalties for all types of exploitation of their works (broadcasting, retransmission, video-on-demand, public performance, online content sharing service providers (OCSSPs) uses, etc.).

The practice has shown that when the statutory remuneration right is regulated with mandatory collective management, CMOs guarantee the effective enforcement, collection and distribution of royalties. Collective management is a win-win solution for users, securing legal certainty and a lower bureaucratic and economic burden due to the centralisation of the system. The European Commission’s Report on the application of Directive 2014/26/EU on collective management of copyright and related rights[6] demonstrates further the effective role of CMOs.

The need for further EU harmonisation

While a majority of EU countries have now remuneration mechanisms with unwaivable remuneration rights and collective management in place, the situation is far from being harmonised, preventing many European authors from receiving any remuneration for the exploitation of their works on different media in their own country and other EU countries. Due to the heterogeneity of the legal systems in place, CMOs cannot always provide reciprocal agreements that would bridge the gaps.

There is an urgent need to further harmonise the remuneration due to authors for the exploitation of their works, in particular for the modern forms of distribution of their works such as video-on-demand and streaming, so that European audiovisual authors can continue create the highest quality works and their CMOs can fully play their role in supporting them. Let’s hope that the CJEU will support this approach in the case C-663/24.

 

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[1] Directive (EU) 2019/789 of the European Parliament and of the Council of 17 April 2019 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes.

[2] S.J. van Gompel, P.B. Hugenholtz, J.P. Poort, L.D. Schumacher & D.J.G. Visser.

[3] https://www.saa-authors.eu/en/pages/767-national-cases-studies.

[4] R. Xalabarder, The principle of appropriate and proportionate remuneration for authors and performers in Art.18 Copyright in the Digital Single Market Directive, InDret, 2020, Vol.4.

[5] P. Bernt Hugenholtz, Three cheers for the DSM Directive’s rules on author’s contracts – and a cautionary note from the Netherlands, 14June 2021, Kluwer Copyright Blog.

[6] Commission Report on the application of Directive 2014/26/EU on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market, 19 November 2021.