ABSTRACT
The fair remuneration of authors and performers for the exploitation of their work is at the core of the rationales of copyright and related rights. Furthermore, the remuneration of creators benefits from strong fundamental rights justification at the international and European level. However, the copyright system has since its inception poorly delivered on this objective, the revenues generated by the exploitation of creative works being still often unfairly distributed to authors and performers. Most recently, their revenues have also been affected by crises like the Covid-19 pandemic and the increasing use of generative AI technologies to output works potentially competing with those of human creators.
The EU Digital Single Market Directive introduced for the first time in EU law general copyright-contract rules to protect the authors and performers in their contractual relations with derivate rightholders (Arts 18-22 Directive (EU) 2019/790 (‘CDSMD’)). However interesting and positive these rules are in theory, there are doubts that a ‘contractual-only’ protection brings the expected results in practice since it requires the creators to turn against their producers to demand the revision of their agreement, which very often carries negative consequences for creators. National experiences with copyright contract rules have shown little results so far. Therefore, other mechanisms securing that a fair remuneration flows directly back to creators should urgently be considered.
Effective implementation of the principle of appropriate and proportionate remuneration of authors and performers pursuant to Art. 18 CDSMD and, more generally, of the fair remuneration rationale of copyright law, thus must result from the combination of several mechanisms that cannot be easily circumvented and which secure efficient revenue flows to creators without burden them excessively with enforcement obligations.
In this context, the article argues that wider use of remuneration rights appears the better way forward. Tracing the latest developments, it explores the policy options to implement the different types of remuneration rights (ie, residual, other per se, and ‘limitation-based’). It analyzes several national experiences and pending CJEU referrals to identify clear principles for the development, at the EU and international level, of better-functioning remuneration systems for creators, thus securing that the copyright system can (finally) fulfil one of the main functions for which it has been established.
Geiger, Christophe and Scalzini, Silvia and Bossi, Ludovico, Time to (Finally) Reinstall the Author in EU Copyright Law: From Contractual Protection to Remuneration Rights (June 30, 2025), Innovation Law and Ethics Observatory (ILEO) Research Paper Series No 25-05.
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