Levelling the playing field for independent music companies and their artists across Europe
European performance income & US repertoire
IMPALA has set up a working group to look after the question of European performance income and repertoire from countries with no domestic right such as the USA.
A decision in the European courts (C 265/19 Recorded Artists Actors Performers Ltd v Phonographic Performance (Ireland) Ltd) has created a strange anomaly that we expect to be fixed promptly by the EU as it could have significant consequences.
It is important to bear in mind the following:
This decision only relates to Ireland and Irish law for now. All other societies should continue to follow their national position already in place unless/until national legislation changes.
The European court said it was obliged to reach the conclusion because of the way the EU directive is drafted, but expressly acknowledged that this legislation could be changed.
EU legislation as now interpreted by the courts is currently incompatible with international copyright law and should be changed.
We estimate that 125m euros per annum are at stake – that is what we calculate would be transferred out of Europe away from European performers and labels to the USA alone each year. In addition, there is the question of the past – Sound Exchange has already launched litigation for the future and the past in France.
We would be sceptical that this judgement could result in higher performance revenues in Europe, not least in the current climate. Instead we are concerned it would transfer value away from European producers and performers.
No payments should be made by European societies unless or until national laws is changed.
The very first question is whether or not the EU legislation will be adapted to reflect the original intention and implement international copyright law properly (national freedom to decide about whether to recognise US recordings and other countries which don’t have a domestic right).
Paying out on US recordings without a US domestic right is not going to help the US secure a performance right. It cuts across IMPALA’s efforts to increase rights protection for all with Europe’s trading partners.
This is not just about the financial aspects. It’s also about basic principles and fundamental copyright protections. What we are seeing is the unpicking of settled understanding of an EU directive over many years.
Our overall priority is to increase the level of protection across the board in all countries and reciprocity is a fundamental part of that. Without reciprocity the general level of around the world would be a lot less.
Even China for example had just introduced rights protecting performers and labels.
Our view is that the now apparent hole in the EU legislation will make it more difficult for us to achieve maximum rights for all and it will harm the US’s ability to secure a domestic right. The EU should not agree for example to national treatment in trade negotiations as that would be the worst possible outcome for both American and European labels and performers.
Listen to Jérome Roger here talking about this to Juliana Koranteng in our podcast series 20MinutesWith.