Performers IP Rights - Details

26.06.2017

EU Copyright review: in the heat of the action

Two comprehensive legislative initiatives are entering their most critical stage in Europe, with both the European Parliament and the Council discussing possible amendments.

The first is a new directive aiming to introduce some changes to the copyright acquis, including new rights for press publishers for online use, a very controversial provision addressing the value gap and the licensing of content sharing platforms and also measures promoting a more balanced contractual environment between artists and producers. In this framework, FIA is campaigning for comprehensive transparency measures, a collective endowment to claim a revision of the original contract when revenues outperform the initial forecasts and alternative settlement mechanisms to become the affordable norm when dealing with contractual disputes. FIA, together with FIM, AEPO-ARTIS and IAO, is advocating also for a complementary right of performers to receive an equitable remuneration from on demand platforms for the making available of their fixed performances, subject to mandatory collective management. Various EP Committees delivered close to 1.000 amendments, irritating Commissioner Ansip who wishes this reform to be completed during the incoming Estonian Presidency semester.

Whilst some of these amendments are positive, others are – as it often happens – a not so veiled attempt by the producer lobby to water down the draft directive and preserve the status quo. The CULT Committee, which one would expect to be most eager to help performers and audiovisual authors out of precariousness, is in fact making a mockery of the Commission proposal. The vote on the CULT opinion, scheduled for June 23, has now been postponed to July 11 and FIA has actively reached out to all members of this Committee to suggest reasonable improvements. The Committee for Internal Market and Consumer Protection has agreed to grant stronger contractual rights to performers and audiovisual authors but has completely ignored the claim for an unwaivable equitable remuneration right. Meanwhile, deliberations over possible compromise amendments at the Legal Affairs Committee have only just begun.

A new rapporteur was appointed to replace MEP Comodini Cachia, who headed back to Malta having won a parliamentary seat at recent elections. As the member States are only halfway through their initial round of discussions and the summer break is looming, no one is expecting much progress now until September. Meanwhile, FIA has attempted to unite performers and audiovisual authors around a common proposal that, we hope, will strengthen our voice when the time comes.

The second initiative in the field of IP is a draft regulation to facilitate the cross-border online provision of "ancillary" broadcast services and extend mandatory collective management to retransmissions other than by cable. Whilst the second part is less controversial, other than with respect to how "direct injection" will be dealt with, the first leg of the draft regulation threatens to extend the "country of origin" principle to the provision of online services, encroaching on territorial licensing and de facto promoting pan-European licenses for the online distribution of audiovisual content.

FIA has joined a large coalition of stakeholders calling for the sustainability of the audiovisual industry to be preserved and the licensing of content to continue to be on a country-by-country basis. The European Parliament seems inclined to embrace the Commission's point of view and is at times pushing for a more ambitious regulation that would, for instance, expressly extend to all online broadcasts - i.e. not limited to ancillary services like simulcasting and catch-up television - and also clearly include acquired content like films and television series. The Council, on the other hand, has a more reasonable view. However, only a few strong member States are calling for the outright deletion of this proposal and, with the Parliament moving quickly towards a final vote, time may be running out for them to form a solid minority. They may thus have no other alternative but to seek a daring compromise that may make a few consumers (and public broadcasters) happy and many industry players mystified about the future of audiovisual production in Europe.