One of the certainties in copyright policy discussions is that most arguments are made purportedly on behalf of individual creators. Case in point is the EU copyright reform, where the music industry is claiming that Article 13 will benefit creators, where publishers are claiming that they need a publishers right so that journalists get properly rewarded, and where YouTube is claiming that Article 13 will hurt creators. In most of these cases creators are merely used as pawns in the game, in which large intermediaries on both sides of the debate try to ensure that they can gain or maintain as much control as possible over the distribution chain for themselves.
With all this attention for the wellbeing of individual creators it is surprising how little attention has been paid to another provision of the proposed copyright directive. Even worse, a proposal by the European Parliament to include a measure that would directly benefit authors and performers (at the expense of rightsholders pretending to act on their behalf) is currently is facing opposition from Member States.
Under the title “Measures to achieve a well-functioning marketplace for copyright” the Commission had proposed a number of measures aimed at strengthening the position of creators in contractual relationships with intermediaries. Specifically Article 14 introduces a transparency obligation for intermediaries towards rightsholders and Article 15 contains a contract adjustment mechanism intended to give creators some recourse if their works ends up being much more successful than originally envisioned and after which they have already signed their rights away.
From the get go these measures had been criticised by organisations representing performers as not strong enough to really improve the negotiation position of creators. These have been advocating for an unwaivable right to receive equitable remuneration (something that we considered to be problematic because it would limit the ability of creators to use open licenses).
These calls for such an unwaivable right were ignored, but in september the European Parliament included the addition of a right to fair and proportionate remuneration. It is one of the few positive elements in an otherwise disastrous position. Where an unwaivable right would have made it impossible for creators to freely share their output (if they wanted to do so), the language proposed by the European Parliament should help to get more money into the hands of those creators that actually want it.
The new Article -14 (read “fourteen minus”) proposed by the European Parliament would require Member States to ensure “that authors and performers receive fair and proportionate remuneration for the exploitation of their works and other subject matter, including for their online exploitation“. This provision would be intended to ensure that creators get remunerated fairly in situations where currently they often have to sign away all their rights from the start, for any future use of their performances in return for inadequate compensation if any at all.
Creators need rights not filters
By granting a right to creators, Article -14 would significantly improve their negotiation position and ensure that they get a fair(er) share of the revenue generated by the exploitation of their works (think the money streaming services pay out to rightsholders). This stands in stark contrast to the approach taken by Article 13 which does not directly improve the situation of creators. Even if one assumes that Article 13 will somehow result in more income for rightsholders in the music industry (which as we have argued before is unlikely) that would not mean that this would also be passed on to the individual creators in whose name the fight for Article 13 is carried out.
If lawmakers want to be serious about improving the position of individual creators then they should support Article -14 which is much more meaningful from the perspective of creators. Unfortunately in the ongoing trilogue negotiations, Article -14 seems to be facing a lot of resistance from both the European Commission and the Member States, which is illustrative of the hypocrisy of the proponents of Article 13 who claim that they are acting in support of individual creators.
