The proposed Directive aims to ensure that creators and performers get appropriate remuneration for uses of their works by strengthening their negotiation position, with regards to agreements where they license or transfer their rights to exploit their works.
Many authors and performers are not able to negotiate with publishers and producers for a fair share of the revenues generated by the exploitation of their works and performances. Some authors and performers transfer all their rights for all types of exploitation of their creations and receive only a one-off or symbolic fee. Only a minority of (successful) creators and performers manage to negotiate the payment of additional royalties for the online exploitation of their creations.
Creators and performers should receive an adequate remuneration for the exploitation of their creations and performances. The right to receive adequate payment should be granted by law in order to significantly improve the bargaining position of creators and performers to prevent situations where they sign away their rights in return for inadequate compensation. However, that right should be waivable, otherwise it will interfere with the operation of open licensing and impose unjustified limitations to the ways creators can exercise their rights.
To protect creators and performers, the European Parliament proposed adding a new article "minus 14" to the text of the proposed Directive that would 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”. During the trilogue negotiations the language changed, and now only gives authors and performers the right to receive “appropriate and proportionate remuneration” when they license or transfer their exclusive rights for the exploitation of their works. The final text further clarifies that “lump sum payments can also constitute proportionate remuneration but they should not be the rule”. Together with the provisions on contract transparency, contract adjustment and revocation rights, the remuneration right is a step towards strengthening the position of individual creators.
Currently, there is no provision in the EU law granting authors and performers the right to receive a fair compensation for all uses of their copyrighted materials.
Under the title “Measures to achieve a well-functioning marketplace for copyright,” the Commission proposed a number of measures aimed at strengthening the position of creators in contractual relationships with intermediaries. Specifically, Article 14 introduces a transparency obligation for intermediaries towards rights holders, and Article 15 contains a contract adjustment mechanism intended to give creators some recourse if, after they sign their rights away, their works end up being much more successful than originally envisioned. These measures were criticised by organisations representing performers as not strong enough to adequately improve the negotiation position of creators.
The negotiation mandate adopted by the Member States did not contain any amendments dealing with the remuneration rights of authors and performers. In its report, the European Parliament proposed to add a new article "minus 14" that intends to 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.” This addition enjoyed broad support across the political spectrum and was regarded by many members of the EP as an important addition to balance out some of the more problematic aspects of the proposed directive, such as Articles 13 and 11.
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