The Commission is considering an initiative that would introduce remuneration rules for third country nationals by amending Article 8(2) of the Rental and Lending Right Directive (2006/115/EC). Article 8(2) provides for a remuneration right for performers and record producers, irrespective of nationality (the so called “single equitable remuneration right”), when their sound recordings are broadcast to the public (such as on radio and TV) and played in public places (such as bars and restaurants). The remuneration is collected by collective rights management organisations (CMOs) from the broadcasters and venues and shared between the relevant performers and record producers.

The CJEU ruling in Case C-265/19 Recorded Artists Actors Performers Ltd v Attorney General EU:C:2020:677 (the RAAP Judgment) concerned the relationship between Article 8(2) and the EU’s international obligations under Article 15(1) of the WIPO Performances and Phonograms Treaty (WPPT). The CJEU held that Article 8(2) applies to use in the EU of phonograms published for commercial purposes irrespective of nationality. It also held that Member States do not have discretion to legislate on the equitable remuneration of performers and producers from sound recordings. The CJEU found that it is for the EU and not Member States to limit the single equitable remuneration right of the third country nationals, should it choose to do so.

The judgment highlighted the potential consequences of the EU not having exercised the option of reciprocity as provided in Article 4(2) of the WPPT. In some cases, the fact that Article 8(2) applies to the use of sound recordings from third country nationals where no remuneration right applies in those third countries might prevent some EU performers and producers from being involved in the recorded music business in those third countries on equal terms. The refusal of certain third countries to grant a right to single equitable remuneration might result in nationals of Member States who operate in the international recorded music business not receiving an adequate income and experiencing greater difficulty in recouping their investments.

Accordingly, the Commission has launched this Call for Evidence to collect stakeholder feedback on the application of Article 8(2) and the impact of the RAAP Judgment. This includes feedback on arrangements for the remuneration, collection, and sharing of remuneration between performers and record producers, and arrangements with CMOs. The Commission will also shortly launch a targeted public consultation to gather stakeholder feedback in a more detailed manner, related to certain specific aspects of the problem (e.g., points of attachment, restrictions regarding certain types of use, sound recordings with multiple performers of various nationalities and how to ensure that there is no knock-on effect on the EU’s other international obligations for record producers, performers and authors).

The Call for Evidence is open until 22 September 2022. To access the Call for Evidence, click here.