In September 2020, the CJEU held that the right to equitable remuneration for music producers and performers under Article 8(2) of the Rental and Lending Rights Directive (“RLR Directive”), extends to non-EU performers and producers, whenever their recordings are broadcast or publicly played in the EU (Case C-265/19, Recorded Artists Actors Performers Ltd v Phonographic Performance (Ireland) Ltd and Others) (the “RAAP Judgment”). You can read the RAAP Judgment here.
Following the RAAP Judgment, the European Commission (the “Commission”) published a call for evidence in July 2022, regarding the remuneration for the recorded music of non-EU performers and producers in the EU.
Following the submission of evidence, the Commission published a study in April 2023 that examined the international aspect of the single equitable remuneration right for phonogram performers and producers, and the effect that this right could have on the European creative sector. The study attempted to build on the RAAP Judgment, by exploring the ways in which non-EU-based performers and producers could be paid when their records are played in the EU.
The April 2023 study published a number of interesting findings, in particular it flagged that a number of stakeholders fear that the effects of the RAAP judgment could be extended to any copyright area where (i) renumeration or compensation is collected, and (ii) distribution to third-country rightsholders is based on reciprocity.
Other concerns included private copying; legal uncertainty; and potential retroactive effects of the RAAP judgment, such as back payments and/or state liability for incorrect application of the RLR Directive. Whilst 13 of the 18 Member States analysed envisage material reciprocity in their legislation with respect to third-country rightsholders, only half of them apply the exception in practice in relation to single equitable renumeration.
The April 2023 study explored potential policy options, one of them being the introduction of a legal basis for the application of material reciprocity at an EU level. Notably, there were some rather divergent views from stakeholders as to the need for EU intervention in order to address the effects of the RAAP Judgment. It, therefore, comes as no surprise that the Commission is consulting stakeholders and EU Member States on the issue, possibly with a view to legislating on the matter.
The Commission’s consultation
The consultation, announced on 11 September 2023, aims to gain feedback on:
- the application of the single equitable remuneration right in different EU Member States;
- the consequences of the RAAP Judgment; and
- the possible impacts of a legislative proposal, which would seek to establish material reciprocity with third countries for remunerating non-EU/EEA music performers and phonogram producers.
It aims to complement the Commission’s study, by targeting a broader range of stakeholders and EU Member States. It also offers an additional opportunity for EU stakeholders to provide the Commission with their input.
The consultation is specifically aimed at stakeholders in the recorded music industry, such as performers, record producers, collective management organisations (‘CMOs’), and commercial users of recorded music, including TV and radio broadcasters, bars, restaurants, clubs and hotels, or their industry organisations.
If you wish to give feedback, please note that stakeholders only have until 12 November 2023 to respond to the consultation. A link to the consultation is available on EU Survey in English, French and German. You can answer in any of the EU official languages.