Updated: Nov 12, 2020
The Spanish system for equitable remuneration has been operating successfully since 2006 when the Law, which implemented the European Union Information Society Directive 2001 came into force. The Spanish law introduced an exclusive right for performers to make their recorded performance available to the public which is then presumed to be transferred from the performer to the phonogram producer or to the film producer as part of their contractual relation, preserving an unwaivable right to equitable remuneration: the remuneration right allows performers to be paid for the music and audiovisual works played in radio and TV broadcasts as well as in online music and audiovisual services, including streaming services and at the same time the producer retains the exclusive right to manage it with the users.
Therefore in addition to the exclusive right so transferred, the performer retains an unwaivable right to equitable remuneration; i.e. they get paid for the use of their performance in an online music service but they cannot control the use (as they would have been with an exclusive right). This equitable remuneration has to be administered by the relevant national collective management organisation under European and Spanish legislation; anything else would be impractical for individual performers. Collective management organisations collect remuneration from users for, and distribute it to, their members, in this case individual performers.
Such unwaivable remuneration right for performers subject to collective management benefits all stakeholders:
Online music services and VOD services / OTT platforms can be sure that they pay all performers and not just a few.
Record companies and film producers retain their licences with platforms and their contracts with performers.
Artists receive remuneration for their talent.
Equitable remuneration operates in parallel with the exclusive right transferred by contract; it does not interfere with the management of exclusive rights. It guarantees fair remuneration for performers who have transferred their exclusive rights in a full contract as well as for performers who have no such contract, e.g. session players or orchestra musicians.
The Spanish system managing equitable remuneration for performers is based, and complies with mandatory provisions in international copyright treaties (in particular the Rome Convention 1961, the WIPO Performances and Phonograms Treaty 1996 and the Beijing Treaty on Audiovisual Performances 2012) as well as the European Union Directives (specifically the amended Rental Directive 2006 and the Information Society Directive 2001). The recently adopted DSM Directive builds on the existing framework when mandating fair remuneration for performers in Article 18. Find the full report on how the Spanish system operates right here: