Proposals to Directive on copyright in DSM – Contract and remuneration matters

As authors and performers tend to be in a weaker contractual position when they grant licences or transfer their rights, they need information, to assess the continued economic value of their rights, compared to the remuneration received for their licence or transfer, but they often face a lack of transparency. Therefore, the sharing of adequate information by their contractual counterparts or their successors in title is important for the transparency and balance in the system that governs the remuneration of authors and performers.

In order to ensure that exploitation-related information is provided to authors and performers also in cases where the rights have been sublicensed by the first contractor to other parties who exploit the rights, this Directive obliges the sublicensees to provide the licensors at their request relevant information on the exploitation of the rights. Member States should have the option, in compliance with Union law, to provide authors and performers a higher level of transparency through national provisions.

When implementing transparency obligations, the specificities of different content sectors and of the rights of the authors and performers in each sector as well as the significance of the contribution of authors and performers to the overall work or performance should be considered. Member States should consult all relevant stakeholders when determining sector-specific requirements. Collective bargaining should be considered as an option to reach an agreement between the relevant stakeholders regarding transparency.

Members States should be free to implement the transparency obligations by providing that agreements between authors, performers and their contractual counterparts subject to or based on collective bargaining agreements are considered compliant with the national provisions implementing this Directive when the relevant collective agreement provides for regular reporting to authors and performers on the exploitations of their works and performances in compliance with this Directive. To enable the adaptation of current reporting practices to the transparency obligations, a transitional period should be provided for. The transparency obligations do not need to apply to agreements concluded with collective management organisations as those are already subject to transparency obligations under Directive 2014/26/EU.

Certain contracts for the exploitation of rights harmonised at Union level are of long duration, offering few possibilities for authors and performers to renegotiate them with their contractual counterparts or their successors in title when the economic value of the rights turns out to be significantly higher than initially estimated.

Therefore, without prejudice to the law applicable to contracts in Member States, a remuneration adjustment mechanism should be provided for cases where the remuneration originally agreed under a licence or a transfer of rights is disproportionately low compared to the relevant revenues and benefits derived from the subsequent exploitation of the work or fixation of the performance.

The assessment of the situation should take account of the specific circumstances of each case as well as of the specificities and practices of the different content sectors, including whether the contract is based on a collective bargaining agreement. Where the parties do not agree on the adjustment of the remuneration, the author or performer should be entitled to bring a claim before a court or other competent authority.

Authors and performers are often reluctant to enforce their rights against their contractual partners before a court or tribunal. Member States should therefore provide for an alternative dispute resolution procedure that addresses claims by authors and performers or their representatives related to obligations of transparency and the contract adjustment mechanism. For that purpose, Member States may either create a new body or rely on an existing one that fulfills the conditions established by this Directive. This alternative dispute resolution procedure should be without prejudice to the right of parties to assert and defend their rights by bringing an action before a court.