Limitation-based Remuneration Rights as a Compromise Between Access and Remuneration Interests in Copyright Law: What Role for Collective Rights Management?

Abstract

Many European countries have a long-standing tradition in ‘permitted but paid’ uses of copyright protected works; this compromise solution between protection of the remuneration interest of rightholders and the access rationale at the heart of copyright law exempts specific uses from the authorization of rightholders, but at the same time ensures that authors/rightholders receive equitable remuneration. Usually, collective rights management organisations (CRMO) administer such statutory licenses. The paper advances the concept of ‘limitation-based remuneration rights’ as a category that better reflects the societal bargain underlying copyright law, in particular the remuneration interests of creators and wider public interest. While the European Union law already foresees certain CRMO-administered statutory licenses since some time, absent effective harmonization of copyright limitations, these benefits have remained largely hypothetical. This is unfortunate, as ‘limitation-based remuneration rights’ have the potential to enhance innovation and creativity, while at the same time securing fair revenues for creators.

This paper shows why effective harmonisation of copyright limitations represents an opportunity for collective rights management (CRM). It shows why establishing EU-wide ‘limitation-based remuneration systems’ is a promising path worth pursuing, in particular as compromise solution to address remuneration and access interests in the digital environment, such as in the case of the use of copyright protected works for machine learning purposes in the Generative AI context. Moreover, the paper demonstrates that this policy option is fully compatible with current constitutional and international obligations of the EU. In addition, non-exclusive, remuneration-based limitation systems can remove chilling effects on free speech, creativity and innovation. Nevertheless, because of the political sensitivity of such solutions, other options, such as recourse to mandatory and extended collective management will also be explored. In fact, these legal mechanisms have been implemented in EU secondary legislation several times in the past; at the national level, mandatory CRM has been adopted in cases of mass-uses of copyrighted works that are difficult to control. More recently, the option to introduce extended collective rights management has been made available to EU Member States for their respective territories.