ATRESMEDIA: Rethinking Equitable Remuneration After 30 Years

1. Introduction: The Atresmedia judgment

In its 2020 Atresmedia judgment[1] the Court of Justice of the EU (CJEU) found that, when a phonogram is incorporated into an audiovisual work, it no longer qualifies as a “phonogram”. Consequently, the rights in the “phonogram” cease to be applicable (although the phonogram regains its quality when published later separately).

The CJEU has deduced from this finding that, as long as a phonogram is incorporated with permission in an audiovisual work, the right of performers and producers to a single equitable remuneration for such “phonogram” is not applicable.

This marked a dramatic change in the neighbouring rights landscape in the Netherlands – after 30 years, since broadcasters and other users of music in audiovisual productions, such as commercials, films, TV series and videos, now refuse to pay separately for the broadcasting of music in audiovisual productions. However, despite Atresmedia, Dutch performers and phonogram producers of commissioned and fixated music, demand fair market conditions. 

2. Neighbouring Rights – Pay for Play

Since the introduction of the Neighboring Rights Act (NRA) in the Netherlands on July 1st, 1995, broadcasters and other users of audiovisual productions have been accustomed to paying to the collective rights organization Sena, an “equitable remuneration” for the broadcast or other public disclosure of audiovisual productions containing music. 

Under international, European and national legislation, performers are granted protection for their performances in the field of music, audiovisual, dance or any other category of performing arts. Those rights are generally called performers’ rights or neighbouring rights (“neighbors” to the copyrights). Apart from the recognition of their creative contribution, the introduction of performers’ rights has been mainly justified on economic and cultural grounds. Financial rewards give artists the necessary incentives to create new works and contribute to their income while also supporting cultural development. It also safeguards employment and encourages new job creation.

For the producers of phonograms, which were very expensive to make in 1961, the legislators wanted to grant them neighboring rights in order for these investors to be able to recoup their investments.

However, since 2024, broadcasters and other users have refused to do so, based on Atresmedia, which now seems to have major implications for the creators of commissioned and pre-existing music. However, it is questionable whether the CJEU intended this to be the case, and an important commentator is convinced that the CJEU got it all wrong in any case.