It has been more than a year since the deadline for the implementation of the Copyright Directive (2019/790/EU) and only 15 of the 27 Member States have finalised the transposition. Many Member States have disregarded the reasoning behind Article 18 on appropriate and proportionate remuneration for the license or transfer of exclusive rights, but Belgium, when implementing the Directive, seized the opportunity to reflect on the real needs of authors and performers.
Most Member States have just copied-and-pasted Article 18 without introducing any efficient mechanisms ensuring authors’ and performers’ right to remuneration. Some of them even legislated that lump sum payments constitute proportionate remuneration even though it is explicitly provided in the Directive that lump sum payments should not be the rule (recital 73). Belgium, however, has implemented the principle of Article 18 introducing efficient mechanisms that translate this principle into actual royalties.
Belgium modified its previous set system of voluntary collective management agreements for video-on-demand uses and provided for a non-transferable and unwaivable right to remuneration for authors and performers, mandatorily collectively managed. It is timely, in fact, that Belgium chose now to strengthen its framework by implementing a mandatory system, as since the COVID-19 pandemic, there has been rapid market developments regarding streaming platforms.
Second, following the example of the German legislators, Belgium also implemented Article 17 of the Copyright Directive with a right to remuneration for authors and performers, mandatorily collectively managed, for the exploitation of their works by online content sharing platforms such as YouTube and Facebook.
Belgium is clearly the frontrunner in attending to authors’ and performers’ needs.
While they have realised that the right to remuneration for on-demand exploitation is a win-win situation for the audiovisual industry at large, streaming platforms in other countries see this right as a threat. In Denmark, “Create Denmark”, grouping authors and performers, after years of infructuous negotiations with Netflix, reached an agreement with the Danish Producers Association. The agreement guarantees that authors and performers will receive a yearly remuneration for the use of their works. As a reaction, Netflix, Viaplay and other streaming platforms have decided to stop all productions and displace them to other markets in case such an ongoing remuneration is established.
In the same spirit as Belgium, the Dutch Ministry of Culture has launched a public consultation on the review of the 2015 Dutch Copyright Law, proposing to expand the existing remuneration right collectively managed for audiovisual authors to cover video-on-demand uses. Last, despite the delay, several draft laws implementing the Copyright Directive (Slovenia, Poland) are quite promising, in terms of introducing a right to remuneration for video-on-demand uses.
At the SAA we will continue to demonstrate that the introduction in national legislation of statutory, non-transferrable and unwaivable rights to remuneration with mandatory collective management is the best way to ensure that screenwriters and directors receive ongoing payments for the exploitation of their works on all media. This is vital for a sustainable cultural and creative ecosystem, and the only way that the audiovisual industry and its creative talent can flourish.
Now it is up to the remaining EU countries to follow the Belgian example of a positive and effective transposition addressing audiovisual authors’ needs. These Members States have a last opportunity to implement the Copyright Directive in a fair way, allowing authors the obvious; to be able to make a living out of their works.