Progress Made on Intellectual Property Rights in Europe

November 9, 2019

Alan Willaert  -  AFM Vice President from Canada

On October 1 and 2, President Hair and I attended the 108th Executive Committee (EC) meeting of the International Federation of Musicians (FIM) in Zurich. President Hair attends as a member of the Presidium (one of the five vice-presidents), and I represented Canada as part of the Executive Committee. Of the 60-plus member countries of FIM, only a few are represented on the EC. Besides Canada, the others are Australia, Austria, Finland, France, Germany, Greece, Hungary, Israel, Italy, Kenya, Japan, Norway, Romania, Sweden, and the United Kingdom.
One of the most interesting aspects of the meeting was the progress made in terms of intellectual property rights, specifically in Europe. The following is contained within the European Directive:

Article 14 – Principle of fair and proportionate remuneration

1. Member States shall ensure that authors and performers receive fair and proportionate remuneration for the exploitation of their works and other subject matter, including for their online exploitation.
2. Paragraph 1 shall not apply where an author or performer grants a non-exclusive usage right for the benefit of all users free of charge.
3. Member States shall take into account the specificities of each sector in encouraging the proportionate remuneration for rights granted by authors and performers.
4. Contracts shall specify the remuneration applicable to each mode of exploitation.

So what does that mean? In a nutshell, performers will be able to negotiate a fee and get paid for the use of their music on streaming platforms.
Essentially, an unwaivable right is created for performers to receive an equitable remuneration for all online uses of their recordings, collected from streaming platforms and administered by performers’ Collective Management Organizations (CMO), in addition to their exclusive right of making available on demand. The proposal also introduces a collective bargaining component, allowing unions to bargain the remuneration in order to achieve an equivalent result. So essentially, either national law or collective bargaining can be used to set the conditions.
Further, the recommendations include for payments to be based on “actual value” or “potential value,” and allows for lump-sum payments under certain circumstances. The details and text are too extensive to include here, but suffice to say that the European Union (EU) has made significant progress in intellectual property rights.
As I have pointed out in previous articles, it is the responsibility of each member state to adopt and enact legislation which comports with the directive. However, at the FIM meeting, several members reported on the progress made with the governments in their respective countries, which is an extremely positive sign.
It’s important to understand that this is not applicable in Canada. Currently, performers are stuck with Re:Sound’s Tariff 8, which, unfortunately, still pays only 10% of similar tariffs in other countries, such as the United States or the EU. Perhaps in the future, if and when our recommendations during the Copyright Review are enacted, Canada’s Copyright Board will have a more streamlined methodology to respond to market conditions and trends (such as the convergence of media on the streaming platform), and be able to respond with a more appropriate tariff structure and remuneration levels. Canada’s musicians are counting on it.

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