Better late and effective than early and toothless
The adoption of the EU Directive 2019/790 on Copyright and Related Rights in the Digital Single Market (The Directive) was a great victory for authors after three years of intense negotiations and strong opposition from content sharing platforms like YouTube.
The Directive represents an important achievement in EU legislation. It sets out a general principle of appropriate and proportionate remuneration allowing authors to share in the economic success of their works (Art 18), provisions strengthening authors’ right to information on the exploitation of their works (Art 19), reinforcing their bargaining power (Art 20 and 21) and establishing a right for revocation (Art 22). It also clarifies that content sharing platforms perform an act of communication to the public when they give to the public access to copyright-protected works uploaded by users and shall therefore obtain an authorisation from the rightholders (Art 17).
Article 18 is of particular importance for audiovisual authors. It establishes in EU law a right to appropriate and proportionate remuneration for authors and performers when licensing or transferring their exclusive rights for the exploitation of their works. Although it is a binding provision, Member States are free to implement this principle through different existing or newly introduced mechanisms. As a result, the implementation can vary a lot among EU countries.
By the beginning of January 2023, 21 Member States had transposed the Directive into their legislation (the deadline for the transposition expired on 7 June 2021). While the majority implemented Art 18 ‘toothless’, i.e., without any efficient mechanisms to ensure authors’ ongoing remuneration for the exploitation of their works on the different media, some late Member States effectively introduced statutory remuneration rights for authors, collectively managed.
Some examples of countries with an effective implementation:
Lithuania designed a hybrid system, combining voluntary and mandatory collective management for retransmission, direct injection, add-on services of TV distributors and private copying levy. The adopted law clarifies that once the author's rights were transferred to a collective management organisation (CMO), the right to receive remuneration for the use of such rights is unwaivable and non-transferable, i.e., contracts by which the author renounces the remuneration are invalid. The law added that the amount of royalties to be received must be appropriate and proportionate for each use of the audiovisual work.
Belgium introduced an unwaivable and non-transferable right to remuneration for authors and performers, with mandatory collective management, for the on-demand exploitation of their works. Moreover, the Law of 16 June 2022, amending the Code of Economic law, provided for an unwaivable and non-transferable right to remuneration for authors and performers in cases of communication to the public by Online Content Sharing Service Providers (OCSSPs, e.g. YouTube), with mandatory collective management.
On 11 October 2022, Slovenia transposed the Directive by amending both its Copyright Act and Collective Management Act, securing statutory remuneration rights for audiovisual authors. The implementation resulted in numerous statutory remuneration rights, mandatorily managed by CMOs. Now, the Copyright Act provides the co-authors of an audiovisual work with unwaivable rights to remuneration for the rental, retransmission, communication to the public by OCSSPs, communication to the public by video-on-demand services and other uses involving the making available right. These new remuneration rights deriving from the communication to the public right are to be mandatorily managed by CMOs.
"These new laws add on the existing remuneration rights for audiovisual authors established before the adoption of the Directive."
Germany was the first country to introduce a remuneration right for authors for the exploitation of their works by content-sharing platforms in their Act on the Copyright Liability of OCSSPs of 31 May 2021. The remuneration is due from the service provider for the contractually authorised communication to the public of the works, even if the author has granted a third party (e.g., a producer) 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. However, this does not apply to VOD-platforms and the other general provisions on remuneration of the authors have not been amended.
These new laws add on the existing remuneration rights for audiovisual authors established before the adoption of the Directive, as in Spain or Italy where authors of audiovisual works had been guaranteed a remuneration through their CMOs for almost all types of exploitation well before.
France had already a right to proportional remuneration for authors in its legislation, applied via voluntary collective agreements between CMOs and users. The implementation of the Directive however clarified that this provision could not be circumvented by contract.
In Poland, the implementation of the Directive is expected to further improve the remuneration system for authors of an audiovisual work, in particular for VOD uses.
In the Netherlands, since 2015 the Copyright Law has provided for a right to fair and proportional remuneration that can only be exercised collectively, for all forms of communication to the public of film works, except for VOD exploitation. In April 2022, a public consultation was launched on the review of the law to also cover VOD uses.
The Society of Audiovisual Authors and its CMO members are actively calling on the remaining EU countries to seize this historic opportunity to adapt their legislation to the needs of audiovisual authors. The best way to implement the Directive is to introduce into national law, unwaivable and non-transferable remuneration rights with mandatory collective management. This is the safest way for audiovisual authors to receive royalties for the exploitation of their works on all media. The CMOs are in place to guarantee the effective enforcement, collection and distribution of royalties to the authors, for the benefit of European cultural diversity.
Legal and Policy Officer, SAA
 The Netherlands, Hungary, France, Germany, Malta, Croatia, Spain, Italy, Ireland, Estonia, Austria, Slovakia, Romania, Lithuania, Luxembourg, Belgium, Cyprus, Slovenia, Greece, Sweden and Czech Republic.
This article was written in January 2023 for SAA's member SSA in Switzerland and first published in Le Journal de la SSA (no 132, 2023)