A new case referred to the Court of Justice of the EU (CJEU) may establish whether it is permissible for EU countries to create new remuneration rights for streaming uses despite creators having signed away all their economic rights to publishers, writes Elena Izyumenko, Assistant Professor at the Institute for Information Law at the University of Amsterdam. 

The case concerns a referral from the Belgian Constitutional Court on the validity of a number of provisions of the Belgian Law of 19 June 2022, which transposed the 2019 Copyright in the Digital Single Market Directive (CDSMD). Belgium, like Spain, has created non-transferable, non-waivable “residual” remuneration rights that remain with authors and performers even after they have contractually transferred their exploitation rights. These rights apply to streaming services such as Netflix and Spotify (Article XI.228/11 of the Belgian Code of Economic Law) as well as to online platforms like YouTube (Article XI.228/4 of the Belgian Code of Economic Law). 

The case tests whether residual remuneration rights are compliant with the EU’s major copyright directives — the CDSM and “Infosoc Directive.” It also tests the new rights against the freedom to provide services established in the Treaty on the Functioning of the European Union and against the freedom to conduct a business established by Article 16 of the EU Charter of Fundamental Rights.

Professor Izyumenko concludes in her article that the “judgment in this case promises to be one of the most significant upcoming pronouncements in EU copyright law.” She continues:

“This is especially true given that an additional remuneration right related to fully licensed audiovisual platforms already exists in Spain for a number of years, where national courts have rejected, among other things, the double payment argument. Moreover, Germany has recently introduced an additional remuneration right for online streaming platforms, similar to Belgium’s, following its own transposition of the CDSMD. The CJEU’s ruling could therefore have far-reaching implications for the remuneration frameworks governing the use of authors’ and performers’ works by online streaming platforms across the entire EU.”

Professor Izyumenko’s full article on the EU case is available at: https://copyrightblog.kluweriplaw.com/2024/09/30/additional-remuneration-rights-for-online-streaming-on-reference-to-the-cjeu/