Comment of the European Copyright Society Addressing Selected Aspects of the Implementation of Articles 18 to 22 of the Directive (EU) 2019/790 on Copyright in the Digital Single Market

Author:The European Copyright Society
Pages:132-148
 
FREE EXCERPT
2020
The European Copyright Society
132
2
Comment of the European Copyright Society
Addressing Selected Aspects of the Implementation of Articles
18 to 22 of the Directive (EU) 2019/790 on Copyright in the
Digital Single Market
by The European Copyright Society
© 2020 European Copyright S ociety
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conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obta ined at http://nbn-resolving.
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Recommended citation: Europe an Copyright Society, Comment of the ECS on A rts. 18 to 22 DSM-D, 11 (2020) JIPITEC 132 para
1.
A. EXECUTIVE SUMMARY
1
The European Copyright Society (ECS) was founded in
January 2012 with the aim of creating a platform for
critical and independent scholarly thinking on European
Copyright Law. Its members are renowned scholars and
academics from various countries of the European Union,
seeking to promote their views of the overall public interest.
The Society is not funded, nor has been instructed, by any
particular stakeholders. This ECS Comment concerns the
implementation of Articles 18 to 22 of the Directive on
Copyright in the Digital Single Market (DSM Directive or
DSMD)1 into national law.
2
The European Copyright Society (ECS) welcomes
the protection that Articles 18 to 22 of the Directive
on copyright in the digital single market offer to
authors and performers in their contractual dealings
with economic actors to whom they transfer or
license their rights. The ECS advises the Member
States to give full force and efciency to this part
of the Directive.
3 The fundamental objectives of Articles 18-22 are to
entitle authors and performers to an appropriate
and proportionate remuneration; to information
about the exploitation of their work/performance;
and to mechanisms to complain about or revoke
an unfair contract. The protection of authors and
performers is thus the core principle which should
1 Directive (EU) 2019/790 of the European Parliament and
of the Council of 17 April 2019 on Copyright and Related
Rights in the Digital Single Market and Amending Directives
96/9/EC and 2001/29/EC, Ofcial Journal of the European
Communities 2019 L 130, 92.
inform the interpretation and implementation
of these provisions in the Member States. That
principle implies the following:
Articles 18-22 have a binding nature and cannot
be contractually overridden, except insofar as
expressly permitted by the Directive.
Exclusions from the scope of application of the
Articles 18-22, despite their role in balancing
the different interests of all stakeholders, have
to be interpreted in a strict manner and should
not serve as ways to exclude some contracts
or situations from the protective provisions to
the detriment of authors and performers. In
particular, Member States should ensure that
any of the permissible derogations for computer
programs, employment contracts, contracts by
CMOs, open access licences, do not circumvent
the protection that the Directive provides for
authors/performers;
The choice of law applicable to transfer or
licence contracts should not deprive the authors
and performers of the benet of the mandatory
provisions of the Directive;
Articles 18-22 should apply, as a matter of
principle, to existing contracts, as laid down by
Article 26.
Authors and performers are entitled to an equal
level of protection, as a matter of principle, but
performers may choose to accept a differentiated
treatment if this is better for them in the light
of their specic circumstances.
Comment of the European Copyright Society
2020
133
2
4
The Directive does not provide for a maximal
harmonisation as far as the contractual protection
of authors/performers is concerned. Its primary
objective is to ensure the principle of an appropriate
and proportionate remuneration, and the means to
guarantee it, as well as a right to revoke the contract
where there is insufcient exploitation. Member
States are permitted to maintain or enact greater
protection to authors and performers relation to
transfer/licensing contracts.
5
Even though Articles 18-22 apply to all contracts,
not just those related to digital exploitation of
works/performances, the ECS suggests that Member
States particularly consider, when transposing and
interpreting these measures, the specic economic
conditions of digital modes of exploitation and
markets, to enable authors and performers to benet
fully from the opportunities of the information
society. Such attention to the digital environment
would be in line with the overall objective of the
CDSM Directive to ensure a fair digital single market.
6
The ECS believes that the Articles 18-22 and the rights
they confer, could benet from collective bargaining
agreements, establishing sectoral codes of practices
or model schemes and conditions, or agreeing upon
adaptations of standard legal provisions. Member
States are encouraged to have recourse to such
collective negotiations in specic sectors and to
ensure their fairness and the representativeness of
all stakeholders.
As to individual articles, the ECS recommends:
Article 18 – Right to an appropriate and proportionate
remuneration: “Appropriate” and “proportionate” are
two distinct elements of the remuneration to which authors
and performers are entitled. Proportionate refers to a
percentage of the actual or potential economic value of the
rights and constitutes a principle that may be substituted
by a lump sum only under strict and limited conditions.
Sectoral collective bargaining agreements could help
better dene the factors of a fair remuneration and the
limited cases where a lump sum could be admitted. The
ECS reminds that Member States may achieve the principle
of an appropriate and proportionate remuneration by
other mechanisms, such as the granting of unwaivable
rights of remuneration.
Article 19 – Transparency obligation: Authors and
performers are entitled to receive relevant information
necessary to ascertain the revenues yielded by the
exploitation of their works, which should comprise all
revenues generated, all nancial ows between exploiters
as well as expenses occurred. The ECS underlines that
Member States should consider the issue of sanction,
should the transferees or licensees not comply with
their obligation to provide the required information. In
addition, the ECS welcomes the possible extension of the
transparency obligations to sublicensees when necessary,
including to obtain information about the revenues
generated by Internet platforms exploiting creative
content.
Article 20 – Contract adjustment mechanism: The
ECS is of the opinion that the contract adjustment
mechanism is broader than a best-seller provision, where
the remuneration can be readjusted in case of unforeseen
commercial success of a work. Instead, authors/performers
should be entitled to receive an additional, appropriate
and fair remuneration, in any situation where the
originally agreed-upon remuneration is disproportionately
low compared with all the subsequent relevant revenues
derived from the exploitation of the works or performances.
Article 22 – Revocation right: The Directive conditions
the right for authors/performers to claim back their rights
from their counterparty upon the lack of exploitation of
rights they have acquired. To ensure a better and more
efcient protection of authors and performers, Member
States are advised to broaden the scope of the right
of revocation so that it can operate in cases of partial
exploitation that do not meet the customary standards of
the sector concerned. However as the revocation might be
a problematic and risky option for authors and performers,
other possibilities, such as a right to revise the contract on
a regular basis, may be provided by Member States.
B. COMMENT
I. General observations
1. Objectives and extent of harmonisation
7
Articles 18-222 of the CDSM Directive provide
harmonized protection for authors and performers
when they have transferred or licensed their rights
to a contractual counterpart. This is a rst and
important step in the EU copyright acquis to deal
with the contractual protection of creators.3
2 The third chapter of the CDSM Directive includes Articles
18 to 23, Article 23 dealing with the binding nature of the
protection and the exclusion of computer program from its
scope. For sake of simplicity, this comment includes Article
23 in its analysis, but refers to Articles 18-22, which concern
the substantive protection granted to authors/performers.
3 “Creators” or “artists” will be used here to refer to authors
and performers, as individuals.

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