Authors and artists, creators of an audiovisual work, should receive a share of the revenues of all exploitations of their work. However, currently this is not the case. Indeed, the regulation has established a presumption of transfer of audiovisual rights to the producer of the work. So the authors and artists cannot receive their personal share in the income of audiovisual exploitations.
The codification of our economic regulation tends to repair this injustice in clearly allowing authors and artists to receive now their rights cable. However, the modifications are less clear regarding other audiovisual operations.
Let us focus here on the the good news. We will come back after to the “could have done do better” in audiovisual rights.
What are cable rights ?
Cable rights are the rights that the cable operators are required to pay to the beneficiaries in order to retransmit their works to their subscribers.
Cable operators are Telenet, Brutele, Coditel, Belgacom … The beneficiaries are authors, artists and producers of audiovisual programs.
The current law (Belgian copyright Act of 30 June 1994 on copyright and related rights-LDA) contains a provision that says that the authors / artists transfer their rights of audiovisual exploitations of their works to their producer, unless their contract author/artist -producer says otherwise (this is the principle of the presumption of audiovisual transfer).
These provisions (art. 18 LDA for authors and art. 36 LDA for artists) prevented the authors / artists to be lawfully entitled to receive their rights cable since these rights were legally transferred to the producer.
This issue has led to numerous legal disputes between authors / artists and cable.
The minister wanted to end this situation in his codification.
A split authorization/right to remuneration
It will now be specified (in art. XI.225) that the remuneration for cable retransmission must arrive to authors and artists pockets through their own collective management organisation. The new section provides that where the author or performer or performer has transferred its right to authorize or prohibit cable retransmission to a producer of an audiovisual work, he retains the right to receive a remuneration for the cable retransmission. That right can not be contractually waived.
Authors and performers therefore can not transfer by contract their right to remuneration for the retransmission by cable. In other words, the presumption of transfer to the producer of audiovisual works doesn’t apply to remuneration rights from cable exploitations. This remuneration must revert to authors and artists. The administration of this right to remuneration remains, however, as the right to authorize or prohibit cable retransmission, subject to mandatory collective management.
A real split between the right to authorize or prohibit the exploitation (here via cable retransmission) of a work and the right to receive compensation after this operation was established by the Minister.
The first right (the one originally linked to the concept of copyright) continues to belong to the producers while the latter escapes from them to fall into the hands of the original authors.
But the remuneration of authors / artists continue to unfortunately depend on producers. Indeed, what if they (producers) refuse an exploitation that would have agreed with authors / artists ? Could authors / artists force them to change their minds ? However, producers will have no interest at all to refuse any exploitation since in that case they will lost revenues.
The Minister warned that “the proposed amendments to section 225 don’t change to change the total amount of rights currently paid by the operators of audiovisual works for the retransmission by cable, but rather to ensure a more balanced distribution between the different categories of rightholders.”.
In other words, the modifications will not increase the amount of money that cable companies generally pay today but better to better distribute what they were paying before. Wishful thinking ? Will the producers agree to see a reduction of their income?
Creation of a common platform and a contracts registry
To provide a fluid exploitation of audiovisual works by cable, the codification provides for the creation of a single platform for the collecting of cable retransmission.
This unique platform is expected to enable collective negotiations between, on the one hand, right holders (broadcasters who, for their own emissions, have the right to authorize cable retransmission and companies that manage the exclusive right or the right to pay for cable retransmission) and on the other hand, cable operators, to conclude a collective agreement. This will provide them for the advantage of knowing how much will be the total compensation to cable retransmission.
It is to the Minister to determine the date of entry into force of the single platform. He will also determine after having consulted the committee provided for in Article XI.282, § 1, 2° (new) its composition and scope. The minister even adds : “The broadcasters could then, based on objective criteria, not be a part of the single platform.”. It will therefore be very careful of its composition because not being a member of it could result in not being able to influence prices that will be negotiated.
So long as the single platform is not implemented, the right to compensation can be claimed directly from the cable by the collective management organisations of authors and artists.