A recently published report on “The Impact of the DSM Directive on EU Artists and Musicians”, based upon a survey of 9,542 artists from Belgium and 18 other EU countries, shows that the 2019 DSM Directive has been very far from a success. Conducted by PlayRight, AEPO-ARTIS, and in collaboration with IAO, this is the largest EU-wide survey ever done on issues related to performers in the music industry. It reveals that only 7.41% of Belgian artists are satisfied with their remuneration from streaming.

In June 2019, the EU adopted the Copyright in the Digital Single Market Directive (“DSM Directive”). Its Chapter 3 recognised the weak position of musicians and obliged EU countries to put in place legislation that would ensure all artists receive fair remuneration. Specifically, that legislation must guarantee artists effective rights: to receive appropriate and proportionate remuneration, to receive transparent information on all exploitations of their recordings, to claim additional, appropriate and fair remuneration and recover rights from record labels in certain situations, and to request alternative dispute resolution. 

In anticipation of the DSM Directive turning 5 years old this month, throughout the first quarter of 2024, PlayRight, AEPO-ARTIS and its members conducted a survey in collaboration with IAO (the International Artists Organisation) to assess what effect the DSM Directive has had on musicians. 

The findings of this survey are analysed by independent music business researcher, Daniel Johansson (Inland Norway University of Applied Sciences) in his report “Streams & Dreams Part 2 – The Impact of the DSM Directive on EU Artists and Musicians”. He concludes that: 

“This study has primarily demonstrated that, although Articles 18-22 were designed and implemented in national legislation to strengthen the position of artists and musicians in the market, gaps in the effectiveness of the legislation still remain. Consequently, this report suggests that additional measures are required by the EU, Member States, and the music industry. It is hoped that the data presented will serve as a catalyst for the development and implementation of such additional measures.” 

Key findings across the EU include:

• Only 5.1% of signed artists consider their streaming revenue to be satisfactory, with significant disparities being shown between Member States. 

• With regard to transparency, approximately 77% of EU signed artists did not receive the level of detailed information that they were legally entitled to receive. 

• Only 35 out of 4,215 signed artists managed to adjust their contractual terms and receive additional remuneration. 

• Only 5.9% of EU artists attempted to recover their rights, and of them, 69.4% failed. 

• The possibility of alternative dispute resolution (designed to avoid costly litigation and minimise hostility between those in dispute) was barely used and when it was, a majority of artists (60%) did not find it helpful.
  

With regard to session musicans, who receive no remuneration for streaming, the author stated that: 

“As session musicians do not possess a remuneration right for streaming, it is imperative to provide EU-level recommendations on whether Member States should introduce such a remuneration right.” 

When completing the survey, 1228 artists opted to provide comments on their career and the music industry in general. A sentiment analysis of these found that only 21 could be considered positive. Among the comments submitted: 

“I am a person who in my career sang 50 big hits for 20 million people…and I get a fee that doesn’t even feed a dog, funny isn’t it?” 

“I haven’t received a penny for the recording that was a top seller for several weeks… I’m broke so I can’t afford to hire a lawyer…” 

“I think we as session musicians should be paid for streaming on Spotify.” 

One artist asked: “When will performers’ rights be in place for streaming?” 

Only the governments of the 27 EU Member States can answer that question. It is their responsibility to put in place legislation that makes the DSM Directive effective and this report shows beyond doubt that so far they have failed to do so. 

President of PlayRight Christian Martin commented: 

“This is precisely what the previous federal government intended to do by securing the effectiveness of article 18 of the DSM Directive in Belgium for the currently non-remunerated or poorly remunerated uses of artists’ performances on commercial streaming platforms (such as Netflix, Spotify and Disney+) and content-sharing platforms (such as Tik Tok, YouTube and Instagram) via new non-transferable remuneration rights subject to mandatory collective management.  

We regret the current delay caused by a coalition of music producers and online platforms disputing these long awaited and much needed statutory remuneration rights before the Constitutional Court. This remuneration model has proven a track record in terms of effectiveness and legal certainty in Belgium and abroad for other types of exploitation, including cable retransmission rights, private copy levy, and equitable remuneration for public performances and broadcasting, and even for online exploitations in other EU Member States such as Spain or Italy. 

However, we regret the current delay caused by a coalition of music producers and online platforms disputing these rights before the Constitutional Court. This remuneration model has proven a track record in terms of effectiveness and legal certainty in Belgium and abroad for other types of exploitation, including cable retransmission rights, private copy levies, and equitable remuneration for public performances and broadcasting, and even for online exploitations in other EU Member States such as Spain or Italy. 

The latest survey results underscore that the new contractual provisions of the DSM Directive are beneficial in theory but remain wishful thinking for artists if they are not activated via concrete mechanisms, such as statutory remuneration rights. It is to us the only viable solution, especially as mandatory collective management, which is subject to strict (legal) control by the authorities, is the only way for all artists (most of whom have very little to no bargaining power) to guarantee the necessary level-playing field to negotiate tariffs with users, including online platforms, but also warrant complete transparency, limit costs for all parties, and allow a fair distribution. 

We urge the upcoming federal government to continue the good work and extend the successful model of statutory remuneration rights in order to ensure the enforcement of article 18 of the DSM Directive for other currently non remunerated forms of exploitations, such as the uses of artists’ performances by AI technologies, and an equitable remuneration for the public executions of the audiovisual performances of actors and dancers.”