How to Best “Sell” the “Best-seller” Clause? A review on whether the Contract adjustment mechanism proposed by the EU draft Digital Single Market Directive can secure fair (additional) remuneration for authors and performers.

Abstract

The current - and very relevant - debate about the way authors and performers lose control over exploitation, and more importantly, revenue generated through use of their works and performances in the digital world somewhat overshadows the fact that there are existing scenarios arising from the normal course of dealings in such works where the same occurs and were remedy of any such “injustice” has not been fully enshrined in law. A right to additional fair remuneration is a concept recognised to various degrees in some Member States of the EU but not all, scaling from (seemingly) zero in the UK to quite an elaborate regulation in Germany. Where they are recognised, application and enforcement of relevant provisions also vary. The EU sought to harmonise the issue of author´s and performer´s access to fair share of revenue generated from exploitation of their work or performance (for normal dealings and in digital spheres of copyright exploitation) in its new draft Directive. The Proposal for a Directive on Copyright in the Digital Single Market published in September 2016 dedicates its Chapter 3 of Title IV to Fair remuneration in contracts of authors and performers; contract adjustment mechanism introduced in Article 15 attempts to tackle the issue by proposing a statutory right to additional remuneration being introduced throughout the EU Member States. Or, was the aim of this provision originally even broader? In this work, three main areas are addressed: (i) the background and justification of inclusion of such provisions into the Draft DSM Directive; (ii) current applicable law in Germany, Czech Republic and the UK; three countries each representing different historical and doctrinal approach to copyright law and thus providing unique benchmarks for the analysis, (iii) reconciliation of the first two parts: analysing what – if any – change in the national legislation would be needed for the three Member States to transpose the provision into the national laws. By way of conclusion, recommendations to amend Article 15 of the draft Directive is based on the analysis made in the third part.