Article 17 and the Triangle: clock is ticking for creators and performers
After almost two months in which the majority of the industry (and outsiders) spend their time talking about NFTs, and everyone got an (more or less) expert opinion on how and why we could all pack our things and let this automated reality replace the tireless work of all of us, professionals in the sector, the time comes to focus on a far more impacting reality for creators, performers, music industry in the digital landscape and music users. More than NFTs? Yep…indeed. Talking about the deadline for the transposition of 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 (for the sake of our −and your –minds, let’s nickname it CRDIR in this brief article).
So, on June 7th the deadline for transposition of this Directive should have been met by member states, and this would include both article 17 and the triangle (we call it pentagon, discover why below!). We focus on those 2 as they would be far more impactful for the music business (read as creators, performers, industry, etc…).
So, article 17… what is it for and how is it supposed to work? In the long run battle between creators/rights holders and UGC platforms, the piece of paragraphs (named before as article 13! It would fit better, no?) basically provides that online content-sharing service providers need to obtain an authorisation from right holders for the content uploaded on their website by its users. If no authorisation is granted, they need to take steps to avoid unauthorised uploads. Having this in place will mean a heavier bargaining power for right holders and their representatives when sitting down (again) with music users and negotiating fairer conditions for the exploitation of music in that context (yes, and it clarifies as communication to the public such usages…for all of us legal nerds, it means a lot. And for creators too…!).
The prolonged noise about TOV (transfer of value) is now supposed to be on the way to be settled and the market to find more balanced ways to compensate creators. To help with this, the Commission also launched a Guidance on the article 17 which, not being binding, it is intended to help reach a coherent application across the Member States of this important provision of the new EU copyright rules (this is because we couldn’t have a Regulation instead of a Directive…for later talks maybe!). As so many experts have pointed out, namely Eleonora Rosati, member states and courts can use the guidance into consideration in order to decide disputes submitted to them, because of the indirect effect that non-binding law has. Also, as the Commission puts it, the guidance provides practical indications on the main provisions of Article 17, helping market players to better comply with national legislations in their implementation. In UNISON we are ready for the heavy burden of work it will imply (already marching), namely with the quite surprising exception on reproduction rights, which need to be dealt with carefully. We will remain attentive and work on this for our clients.
So what about the “triangle”? No, it’s not the Bermuda triangle we are talking about. When referring to the triangle we point to articles 19, 20 and 21 of the CRDIR, known as the “transparency triangle”. We really like to call it the pentagon, as it has not 3 but 5 important articles if we add articles 18 and 22 to the party. Basically, those articles focus on fair remuneration for authors & performers in a more broader><day to day ><industry focused approach through a) the Principle of appropriate and proportionate remuneration (18); b) Up-to-date relevant and comprehensive information on exploitation (19); c) Contract adjustment mechanism (20); d) Alternative dispute resolution procedure (21) and e) Right of revocation (22). And, yes, we could add article 23 (1) as well as it relates with the triangle and stipulates that Member States shall ensure that any contractual provision that prevents compliance with Articles 19, 20 and 21 shall be unenforceable in relation to authors and performers.
Affirmative: the creative community struggled and really looked forward to having all of this in place and in movement. “In place” it is as the Netherlands, France, Germany and Hungary have already fully transposed the Directive. Now, it is with Spain and the other still non compliant countries to give gas to their shoes and meet the deadlines.
Lock and load: As to “in movement”…it can be seen in some negotiations and already practical approaches but again, due to the legal complexity, some vague concepts and new surprises introduced by the guidance, it will be natural that we expect to hear from the CJEU (soon?) a lot in the following years.
Let’s see it with glass half-full prism and use the legal framework as we always try to do at UNISON: an opportunity to help right holders obtain fairer remuneration, vested in the larger possible transparency and granularity, and count with the symbiosis with music users (UGC platforms, live streaming ones, new models, old digital models) and industry, as only working all together things can really progress. No doubt Martin Luther King’s always wise and strong words fit tailor-made to the times to come “We must use time creatively, in the knowledge that the time is always ripe to do right.”
David Serras,
Licensing and International Manager at UNISON