The European Composer & Songwriter Alliance has asked European governments to not subsidise movie and TV companies that fail to respect music creator rights under European law, in particular around transparency and fair remuneration. That request is one of a number of recommendations in a new report on composer contracts for music commissions in the audio-visual sector.
Some TV and film producers - and especially US-based global video streaming platforms - are increasingly adopting unfair practices when commissioning new music, says the ECSA report, and then exploiting their market dominance and non-disclosure agreements to force those practices onto European creators.
“As a result”, says ECSA, “composers often find themselves negotiating in the dark with large entities who pressure them to give up their royalties or a significant part of them in exchange for a single - and often meagre - lump-sum payment, reducing their remuneration and the sustainability of their professions”.
The report also calls on lawmakers and governments across the European Union to ensure that the principles of the 2019 EU copyright directive are properly enforced within the audio-visual industry.
Article eighteen of the 2019 directive says that creators and performers should receive “appropriate and proportionate remuneration” for the exploitation of their works, while article nineteen adds that producers and publishers should be transparent about the nature of that exploitation. However, the report says, the growth of ‘buyout contracts’ and ‘pseudo-publishing’ deals in the audio-visual sector, combined with the use of non-disclosure agreements, are challenging the principles of fair remuneration and transparency.
Alongside the new report, ESCA says it “calls on all policymakers and stakeholders to renew their efforts to tackle buyouts and pseudo-publishing practices in composers’ contracts”, adding that that intervention is necessary to ensure creators can “truly benefit from appropriate and proportionate remuneration from the exploitation of their works”.
With buyout contracts, a production company commissioning new music sets out to own as many of the rights associated with that music - in some cases all the rights - in perpetuity. That stops creators from receiving future royalties from the use of their music, royalties that would traditionally flow directly to the creator through the collective licensing system.
With pseudo-publishing deals, the producer becomes the publisher of the work, but, says ECSA, that simply means the producer can claim more of the rights and royalties without providing any of the investment or support of a traditional music publisher. These deals, it adds, are simply about “rights-grabbing”, allowing the producer to receive “a share of the royalties without engaging in any of the work duly performed by legitimate publishers”.
These practices have traditionally been more common in the US, where the ‘work-for-hire’ principle in copyright law means the commissioning entity can be considered as the author of the work. However, at least some of these practices have started to be adopted in other Anglo-American markets, and more recently in Continental Europe, not least because of the increased dominance of US-based global digital platforms in the EU market.
The report confirms that issues around composer contracts in the audio-visual sector have “been compounded by the increasingly high level of concentration of the European audiovisual market, and the rising market share of non-European video-on-demand platforms”.
In such a concentrated marketplace, it is hard for individual creators to push back on these unfair practices. Partly because a lack of transparency means it’s not always clear to creators what practices they could push back on, plus “if they refuse such contracts or wish to challenge their terms, they face the risk of being blacklisted and excluded from future work opportunities”.
More transparency and more collective bargaining, alongside more interventions from lawmakers, could all help address these issues. The ECSA report concludes with seven recommendations for EU officials and lawmakers, and governments across Europe, as follows...
- Prohibit buyout contracts and work-made-for-hire provisions by making sure that EU law cannot be circumvented and fully applies in the EU, ensuring that article eighteen achieves its original aim.
- Ensure that composers are properly informed about the exploitation of their works – as provided by article nineteen of the directive.
- Ensure that composers can protect their rights through alternative dispute resolution procedure with their contractual counterparts as set out in article 21 of the directive.
- Encourage composers’ counterparts to engage in collective bargaining agreements and model contracts with composers’ associations.
- Ensure that EU and member states’ public subsidies and tax incentives cannot benefit entities that circumvent laws related to the fair remuneration of creators by making this support conditional on compliance with the directive.
- Promote more transparency and information on contractual practices by empowering independent authorities, civil servants and academics to review and collect confidential information on contracts and to draw up anonymous reports on harmful practices.
- Promote and support educational initiatives for composers to raise awareness about their rights and how to protect themselves from harmful contractual practices.