The Principle of Appropriate and Proportionate Remuneration of ART.18 Digital Single Market Directive: Some Thoughts for Its National Implementation

Abstract

Directive (EU) 2019/790 of 17 April 2019 on Copyright and related rights in the Digital Single Market [DSMD] has taken a significant step towards improving fair remuneration of Authors and Performers across the EU, by establishing a set of harmonized mandatory principles and rights to strengthen their contractual position. Now, it is up to Member States to complete this job by implementing them in national laws. Member States must ensure that Authors and Performers effectively obtain fair remuneration for the exploitation of their works and performances. To that end, Member States must rely on a variety of mechanisms at their disposal. Statutory contract rules (already existing in most national laws) are necessary, but not enough. Sectorial collective bargaining, where available, may help define minimum remuneration schemes as well as other rules for the enforcement of the transparency, contractual adjustment, alternative resolution and revocation provisions mandated by the DSMD. However, conditions for a successful negotiation and enforcement of collective bargaining agreements are only a reality in a handful of countries and for specific sectors and, even then, with a limited scope (affiliated members and new productions). Statutory residual remuneration rights, granted by law as unwaivable (and inalienable) rights to receive remuneration subject to collective management (mandatorily, if necessary) and paid by users/licensees remain the best mechanism to secure effective fair remuneration for Authors and Performers, especially in the audiovisual and music sectors. Residual remuneration rights, retained by Authors and Performers after transferring their exclusive rights to producers, are in compliance with EU acquis and international instruments. They neither “duplicate” the transferred exclusive right nor “substitute” it for a statutory license. Residual remuneration rights are “merely” a statutory mechanism to secure that Authors and Performers receive fair remuneration for the transfer of their exclusive rights to Producers, especially when dealing with specific means of exploitation which - due to contractual and/or factual circumstances - are not conducive to provide fair remuneration for them. The principle of fair remuneration in Art.18 DSMD not only confirms the important role of national legislators in securing that goal, but obliges them to explore and implement the full potential of these several mechanisms, adjusting them to different sectors as necessary. Let’s hope national legislators successfully complete the important task started by the Directive.