Authors and other creative professionals are the key actors in the creative value chains and deserve to be treated fairly. Their rights should be recognised and their contribution to society and the economy valued, writes EU Member States’ expert group in its recent report on the status of the artists. Their proposal, a legal status for artists and creative professionals is not a privilege nor an honorary title, it is a way to reduce social and economic disadvantages.
The report of the OMC (Open Method of Coordination) working group of Member States’ experts looks at artists’ status and social security, fair practices, skills and lifelong learning and artistic freedom. The aim is to inform policymaking and share good practices. The OMC group suggests setting up a European platform for further exchange and to improve transparency for artists and other actors within the cultural and creative sectors.
The question about a status for artists has been on the agenda for a while. It isn’t new that artists and cultural and creative professionals face precarious working conditions (project based, freelancers, fluctuating income, unpaid work, unpredictability of success), the pandemic further reminded us about it. About one third of all cultural professionals are self-employed (which is higher than the average of 14% for all professions, Eurostat) and their working conditions often exclude them from social security protection and require them to have a secondary job. As a result, they struggle with having enough time to devote to their creative endeavours. The report recommends that diversity of work practices should not be an obstacle to obtaining rights.
A legal status for artists and creative professionals throughout the EU is a way to recognise atypical work and give access to revenues, funding and benefits. It can consist of a professional regime/dedicated legislation covering labour, social protection and taxation. Some countries already have such models in place (e.g. Belgium, Germany, France, Lithuania, etc.) and others are reforming legislation to improve the working conditions of artists and cultural workers (e.g. Ireland, Spain, Luxembourg, Poland, Portugal and Romania).
Research and data
The OMC group recommends improving existing EU cultural statistics by comparable employment figures, including income/remuneration from dependent and independent work. The report mentions collective rights management organisations, together with professional associations and public and administrative bodies, as sources of accurate and reliable data that can inform evidence-based policymaking. It is acknowledged that the atypical nature of activities in the cultural and creative sectors can otherwise make the collection of data difficult. Indeed, collective management organisations (such as SAA members) collect and distribute royalties to authors and other rightholders, which they disclose in their transparency reports (as regulated by the CRM directive). The OMC group outlines several eligibility criteria for accessing the status of artists. One criteria not detailed is membership in a collective management organisation, that should count to establish audiovisual authors’ eligibility to an artists’ status.
The OMC group proposes setting up an EU framework for artists’ and creative professionals’ working conditions, providing guidelines and minimum standards via a Council Recommendation or Council conclusions for non-binding measures. The SAA on the other hand favors binding measures when possible. In terms of remuneration practices for the exploitation of the works created, it is proven (Xalabarder) that statutory unwaivable rights to remuneration with mandatory collective management are the most effective. Optional principles and guidelines don’t have the same effect.
The OMC group acknowledges the “power dynamics between the artists and those that present, promote and distribute their work, leaving them in a weak negotiating position and putting them at risk for abusive practices”. It notes the EU Copyright legislation and highlights that the 2019 DSM Directive is expected to strengthen the position of creators in the digital environment, helping them to get fair remuneration for the exploitation of their works.
“Member States should work to fully realise the potential of the DSM copyright directive to strengthen artists’ ability to obtain fair remuneration for exploitation of their copyright, and the Commission should monitor the effectiveness of its implementation.” (Recommendation 6)
Furthermore, it highlights Chapter 3 of the directive and in particular Article 18 (principle of appropriate and proportionate remuneration).
“The implementation of the DSM copyright directive is a unique opportunity to address shortcomings, correct revenue streams and strengthen artists’ rights. It is recommended that Member States continue to develop copyright legislation, provide supporting tools and facilitate appropriate mechanisms to better ensure that authors and performers can share in the economic value of what they create.”
“It is important that the Commission monitor the impact of the DSM copyright directive in regard to how its implementation has benefited authors and performers.”
Another key recommendation is addressing buy-out contracts:
“The Commission should ensure the proper application of EU rules, promote fair commercial practice between creators and content distributors, and address the buyout and work-for-hire clauses that are imposed on creators and deprive them of their rights.” (Recommendation 7)
The OMC group describes how the phenomenon of buy-out practices has grown in recent years, particularly in the video-on-demand market. The group emphasises the importance of supporting fair mechanisms based on transfer of rights in return for royalties, and do not exclude the idea of the need for further legislation in case such unfair commercial practices continue becoming an established practice. The EU Commission is recommended to further analyse the contractual practices imposed on creators to ensure the proper application of EU rules.
Among other issues being raised in the report is the freedom of artistic expression, and the need for it to be reflected in a binding fashion in EU treaty reforms, national legislation and policy. A gender equality perspective runs throughout the report, including recommendations on fair treatment and data collection. Furthermore, it makes the point that a multidisciplinary approach is needed, involving not only the ministry dealing with culture. As a remark, the report does not dedicate a lot of attention to AI technologies but it mentions (footnote 48) that “the use of copyright-protected works as input for text and data mining for other purposes than scientific research, which is now covered by a copyright exception under the DSM directive, raises some questions about the ways creators can express their opt-out from this use of their works”. This is a concern we share and that we are monitoring with regards to the negotiations on the AI Act (see the SAA statement).
The report is coming at a time when the European Parliament’s Employment and Culture committees are drafting their own joint report with recommendations to the Commission on an EU framework for the social and professional situation of artists and workers in the cultural and creative sectors ((2023/2051(INL)). The committees’ vote is expected in October and plenary’s vote in November. The SAA is conveying the voices of audiovisual authors to ensure that their rights and fair remuneration are adequately addressed.
Public Affairs and Communication Director, SAA