Sprawiedliwa Muzyka Fair Music

• The EU's DSM (digital single market) Directive, regulates a number of aspects of the use of works and artistic performances in the digital realm.

• Its implementation (implementation into national law) by Member States, was due by June 7, 2021.  

• The Directive's provisions are aimed at, among other things, facilitating licensing agreements, allowing wider access to cultural goods, and ensuring fair remuneration for creators and performers.

• Article 18 of the DSM Directive is of particular importance, it obliges EU member states to provide performers with adequate and proportionate remuneration for the transfer of rights or the granting of licenses. The remuneration in question must reflect the actual revenue generated from the use of music or films by the purchasers of those rights and licensees.

• The Directive makes it unacceptable for the transfer of rights or the granting of licenses for a one-time lump sum payment to be a common market practice, as is currently the case in Poland (see above).

• In Spain, an inalienable right to remuneration for the use of music and films on the Internet has been granted to performers since 2006. In the summer of 2022, such a right was granted to artists in Belgium. Discussions on its introduction are currently underway in other countries as well, including Norway, Sweden and the UK. Artists are also entitled to remuneration for streaming music in Croatia, Germany and Slovakia in certain cases.

• On June 20, 2022, the Ministry of Culture and National Heritage has published a draft amendment to the Law on Copyright and Related Rights, implementing the DSM Directive. As the gov.pl website states, "The DSM Directive introduces, among other things, new rules on the remuneration of creators and performers, designed to ensure that the remuneration due to them is fair."

• Up until now, the Law on Copyright and Related Rights has granted performers of an audiovisual or musical work the right to remuneration for the use of their work in broadcasting, rebroadcasting, public performance or cinema screening, but this right has never included VOD services and streaming platforms. 

• In a new draft published on November 17, 2022, the Ministry of Culture and National Heritage has proposed that performers, both audiovisual and musical, should be entitled to remuneration for making their work available online, to be collected and paid through the relevant collective management organizations. As artists, we support this course of change, necessary in the times of digital consumption of culture. 

• As can be seen from the data cited above, the market for streaming services for both video and music content is growing incredibly fast. Such services are gaining in popularity and are often chosen over radio or landline TV because they offer users the ability to watch or listen to content without time constraints and from anywhere. 

• Under current legislation, according to the Law on Copyright and Related Rights, musical performers are entitled to royalties from, among other things, broadcasts on TV and radio stations and their playback in public places. The law does not stipulate the same obligation to pay royalties from the continuous sharing of movies and series on VOD or music on streaming services. The amendment currently being processed is nothing more than an adaptation of previously existing rules to the new conditions of digital reality.

• Artists most often enter into contracts with producers, under which they are entitled to a one-time payment for their work. While the large corporations are making more and more money as the number of views or listens to a given song increases, the artist will most often no longer be paid a fee commensurate with those profits. In addition, when entering into rights transfer or licensing agreements, performers are usually in a weaker bargaining position. 

• Therefore, it is necessary to strengthen the protection to which performers are entitled by additionally guaranteeing adequate and proportionate remuneration. The principle should thus be a remuneration based on the actual value of the rights. It must be ensured that the artist receives the actual proceeds from the exploitation of their art, which a one-time, lump-sum remuneration - unfortunately common in current practice - does not guarantee.

The draft of the Act grants performers unwaivable right to remuneration, which shall be paid by streaming platforms. The rule will be the same as in case of broadcasting of music in radio and television or its communication to the public.

Remuneration received by performers from music labels (phonogram producers) and proposed unwaivable remuneration for streaming will be independent sources of income for the performers. The proposed bill does not impact contracts between performers and labels/producers. Now in majority of cases the producer pays performers a single, lump sum payment for the use of their music, including in the internet. Only a small number of performers receive remuneration proportional to the popularity of their music in streaming platforms. It depends on individual arrangements between  the performer and the label. When the planned changes, resulting from the DSM directive, are introduced, royalties from streaming will be paid to all the performers. The situation will be identical to royalties for using music in tv and radio.

Now, very often the producer receives remuneration from the streaming platforms but does not share it at all with the performer.

Collective Management Organizations (CMOs)  such as STOART are non-profit associations, whose activities are regulated in detail in the Act of 15 June 2018, on collective management of copyright and related rights. CMOs exist only to monitor, collect remuneration and distribute it to the performers.  Costs of these activities are covered from percentage deductions from collected royalties and their amount must be justified and documented in accordance with the said act. In contrast to music producers and streaming platforms, CMOs do not act for profit.