Dear Minister of Justice, Dear Ms Lauri,
Dear Minister of Culture, Dear Ms Ott,
Brussels, 2 August 2021
Last week twenty three member states, among which the Republic of Estonia, received a formal
notice from the European Commission requesting information on how the rules of the Copyright
Directive (2019/790) and the Online broadcasting and Retransmission Directive (2019/789) are
being enacted into their national law.
The Commission's timing is not coincidental. The European Parliament has also prepared a
resolution on the situation of artists and the cultural recovery in the EU (2020/2261(INI)) in which it
‘calls on the Member States to transpose Directive (EU) 2019/790 on copyright in the digital single
market and, in particular, to guarantee fair remuneration for authors and performers’.
AEPO-ARTIS is a non-profit making organisation that represents 36 European performers’ collective
management organisations from 26 different countries. The number of performers - actors,
musicians and dancers - represented by the 36 member organisations of AEPO-ARTIS is more than
650.000.
AEPO-ARTIS is particularly concerned about the Estonian situation and we support the request
from the Commission and the Parliament to work on transposing these directives without any
further delay. Both directives aim to modernise EU copyright rules and to enable consumers, media
distributors and creators to make the most of the digital single market. And this has become an
urgent matter.
COVID has accelerated the transition to the borderless digital world. In 2020, the worldwide use
of music streaming services increased by no less than 22,6%. In the audiovisual the digital
turnaround also become a fact with more than 37 million new subscribers for Netflix and 87 million
for Disney+ in its first year after launching. Online platforms such as Facebook, TikTok, Youtube and
Twitch have also been able to turn the COVID-year into a success of growth. One does not hear the
shareholders of all these companies complaining.
Unfortunately, the same cannot be said for the Estonian actors and musicians and the hundreds
of thousands of performers who are represented by our members. During COVID, they were not
only confronted with the impossibility to practice their skills in front of a live audience. They were
also confronted with the painful reality that while their works kept reaching audiences online, they
received little or no compensation for this. If we want to guarantee a rapid recovery for our cultural
sector, a reform of the online landscape of which performers are increasingly dependent is
absolutely necessary.
Both the Copyright Directive (recitals 3, 72-73) and the Online broadcasting and Retransmission
Directive (recitals 4, 15 and 18) are very clear in the fact that the new online exploitation possibilities
should be a source of income for all rights holders. They emphasize the need to adapt and
supplement the existing Union copyright framework, while keeping a high level of protection of
copyright and related rights in the digital environment.
However, rather than offering new concrete rules, the European legislator refers to the balance that
it has achieved through years of harmonization via copyright directives and urges member states to
transpose this balance to the online environment. Even though it is the quickest way to avoid further
steps in the infringement procedure, a literal implementation of these directives will not change
the reality for Estonian performers. The need for urgent transposition must not come at the
expense of protecting the performers who are the face of our cultural sector.
This mainly applies to Article 18 of the Copyright Directive that introduces the principle of an
appropriate and proportionate remuneration for performers when they transfer their exclusive rights.
AEPO-ARTIS is convinced that this objective can only be achieved when performers are protected
with an unwaivable remuneration right. This mechanism already exist in all EU member states for
certain exploitations, but only few have made it applicable to the making available right, which is
the legal basis for almost all online exploitations.
This also applies to Article 17 of the Copyright Directive. Although this article ensures that large
platforms such as Youtube, Facebook and TikTok can no longer hide behind the safe harbour of the
e-commerce directive, it does not provide any guarantee that revenues that result from this new
obligation to pay, will be shared with the performers. Here too, the introduction of a unwaivable
remuneration right that performers can obtain through their collective management organisations
is the best - if not the only - solution to guarantee that performers receive an appropriate and
proportionate remuneration. We would like to refer to recent German legislation in this regard.
When transposing the Online Broadcasting and Retransmission Directive, care must also be
taken to ensure that existing mechanisms that offer performers the opportunity to claim
remuneration from end users through their collective management organisation are extended to
new forms of exploitation. After all, it is not the intention of the Directive that when broadcasters
and distributors use new technologies to serve their customers with the same content, this should
lead to the loss of the guarantee for performers to be remunerated.
All performers rely on you that your national implementation provides the necessary basis for their
fair share in the value generated with their creative contribution by the mechanisms mentioned.
We urge you not to miss the chance to achieve this balanced situation and remain at your disposal
to discuss this further.
Your sincerely,
Ioan Kaes
General Secretary AEPO-ARTIS
AEPO-ARTIS - Avenue de Cortenbergh 116 - 1000 Brussels – Belgium - www.aepo-artis.org -
[email protected]