European performance income & US repertoire

IMPALA has 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.

IMPALA has a one-pager explaining the impact of the RAAP ruling on European performers and producers and the organisations’ key asks to the European Commission, see here.

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.
  • The principle of reciprocal treatment remains valid under EU law, as long as it is specific and drafted properly.
  • EU legislation must now be clarified to respond to the court’s views and expressly provide for reciprocal treatment, so as to remain compatible with both international and EU copyright law.
  • 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. 
  • There is little prospect of increasing licensing revenues in Europe to compensate for the loss. Even if increases were possible, we would still need reciprocity as it is fundamental to ensure basic protection worldwide (more on this below).
  • The very first question is amending EU legislation 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). Several member states and European parliamentarians are asking the European Commission to change the relevant EU directive. In June 2021, in an official answer to a question posed by several European parliamentarians the Commission acknowledged concerns about the impact of the ruling and confirmed the launch of a study to evaluate the consequences. IMPALA welcomed the Commission’s response as a first decisive step.
  • 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 protection around the world would be a lot less. Thanks to this, even China for example has now 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. It cuts across IMPALA’s efforts to increase rights protection for all with Europe’s trading partners. Trade talks between the EU and the USA are important and IMPALA issued a statement on this in June 2021. 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.
  • IMPALA supports the campaign by USA rightholders for a national terrestrial radio right and paying out on US recordings without a US domestic right will harm the US’s ability to secure such a right. (Note that the campaign is for terrestrial broadcast, not radio, but the EU and its members, and indeed most countries across the globe, have both rights in their domestic law to protect performers and producers)
  • If the USA gains a broadcast right but not a public performance right, we still need the principle of reciprocal treatment to protect European performers and labels from losing their European public performance income. 
  • Performance revenues have already plummeted because venues are closed due to the Covid-19 pandemic. Now is not the time to further impoverish European performers and their independent label partners, who account for 80% of all new music releases and would be affected disproportionately. Two recent reports (here & here) underline the vital contribution music makes to the EU economy and the losses already caused by the crisis. 
  • Urgent action is needed by the EU to avoid damaging our economy and weakening cultural diversity further.
  • Listen to Jérome Roger here talking about this to Juliana Koranteng in our podcast series 20MinutesWith
MEMBERS ONLY
 
 

IMPALA – Independent Music Companies Association

Coudenberg 70, 1000, Brussels, BELGIUM

+32 2 503 31 38

info@impalamusic.org