Document Type

Article

Publication Date

10-16-2024

Abstract

The transition from linear to on-demand consumption of music, films and other copyrighted content on platforms like Spotify, Netflix and YouTube has given rise to the question whether authors and performers receive a fair share of streaming revenues. While these revenues are substantial and right holders may have the opportunity to control access to copyright-protected content on the basis of copyright protection, it is often not the creators themselves who benefit from growing streaming revenue and reinforced access controls. The issue has a global dimension. The Group of Latin American and Caribbean Countries (GRULAC) proposed that the World Intellectual Property Organization (WIPO) undertake an analysis of creators’ position – and chances to receive fair remuneration – with regard to digital content earnings. In the EU, the issue of author remuneration featured prominently in the debate on the 2019 Directive on Copyright in the Digital Single Market. It culminated in the harmonization of several aspects of copyright contract law, including the right to fair remuneration, across EU Member States. In February 2024, South Africa passed a Copyright Amendment Bill addressing this issue as well. These initiatives at the international, regional and national level confirm the importance of the remuneration issue in current copyright debates and, more specifically, in streaming contexts.

This analysis sheds light on the European example. As indicated, the EU has introduced several legal mechanisms designed to ensure appropriate and proportionate remuneration of authors and performers in the online environment. Those include, first, rules governing licensing agreements between individual artists and the creative industry, such as ex post contract adjustments, provisions favouring royalties over lumpsum payments, and norms regulating the choice of jurisdiction, among others. Second, a specific liability regime for user-generated content (UGC) on platforms like YouTube seeks to encourage rights clearance initiatives. Additionally, Europe utilizes mandatory collective licensing and remunerated copyright exceptions as legal tools to generate revenue streams for authors and performers. To lay groundwork for the discussion of these legal instruments, Section 1 provides an overview of the exclusive rights that apply to the realm of streaming and provide a basis for remuneration claims. Section 2 then introduces the issue of rights clearance and describes the different legal mechanisms used in Europe to ensure fair remuneration for authors and performers: individual licensing agreements; mandatory collective licensing; and remunerated copyright exceptions. Section 3, in addition, examines the situation of European producers who may also find themselves in a weak position in negotiations with large streaming platforms – and at the same time unable to rely on the legal solutions developed for authors and performers. Section 4 summarizes the results of the analysis.

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