Creating Statutory Remuneration Rights in Copyright Law: What Policy Options Under the International Legal Framework?

Abstract

Statutory remuneration rights are progressively attracting the attention of policy makers as regulatory tools since they constitute a middle way between exclusivity and free uses. Remuneration rights have the potential to realise the delicate balance between access to and protection of copyrighted works, while at the same time potentially safeguarding the interests of all parties involved in the process of cultural production. Scholars have also increasingly advocated the use of remuneration rights when the enforcement of exclusive rights is hardly achievable. This is particularly the case with regard to addressing infringing mass uses in the digital environment such as streaming or peer-to-peer file sharing, or unlocking the blocking effects of exclusivity in order to foster the reuse of copyright-protected material. In these cases, the use of statutory remuneration rights would help the copyright system to fulfil its basic function and to safeguard important fundamental rights such as freedom of expression. However, despite their attractiveness, the creation of statutory remuneration rights has also some constraints as they need to comply with obligations resulting from international copyright law. Therefore, it is crucial that legislators know exactly what their room for manoeuvre is when using this tool to regulate copyright law. Surprisingly, this policy space remains until now quite blurry. This article attempts to bring clarity to the discussion: it analyses possible ways of creating remuneration rights in the light of international treaty obligations and maps all options. It argues that international copyright law provides far more policy space than often assumed to create statutory remuneration rights, offers a classification of remuneration rights based on their relationship with the exclusive rights, and invites legislators in the future to better use the full range of possibilities when reforming their copyright laws in order to reach more balanced solutions and to enhance the acceptance of the system among citizens.