Interview with Cecile Despringre by UFUS AFA in Serbia

Originally published as a part of the UFUS-AFA PROTECTION Bulletin, in English and Serbian.

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Authors’ rights protection and their translation in remuneration is not a given and it must be imposed by legislative mechanisms

The Society of Audiovisual Authors (SAA), the umbrella association of European collective management organisations representing audiovisual authors from 25 countries, and of which UFUS AFA is also a member, is celebrating its 15th anniversary this year. During that time, in addition to efforts to ensure that authors are fairly paid for the exploitation of their works, SAA actively participated in the preparation and drafting of new laws concerning copyright.

In an interview for our Bulletin Cecile Despringre, SAA’s Secretary General, talks about the common problems of filmmakers in Europe, today's challenges in terms of copyright protection, attempts by AI companies and streaming services to avoid paying authors' fees and other important topics.

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At the SAA General Assembly, the strategic plan for the period 2025-2027 was presented. Can you summarize the most important details from this plan?

- Indeed, the SAA Board of Directors has begun to discuss the next pluriannual strategic plan for the SAA, but the plan is still a work in progress. What I can say, however, is that we are in a very different place today than we were back in 2022. Some of the new challenges of today are, firstly, the exponential development and application of Generative AI and, secondly, the changing political and regulatory environment. Politically we have seen the rise of far-right political parties in a number of European countries and in the June elections to the European Parliament, which changes the political dynamic and threatens our values of cultural diversity and artistic freedom. The perception of technology has also changed. Politicians deplore that Europe is lagging behind in terms of innovation and competitiveness and some blame our regulatory environment. Industry argues that regulation stifles innovation and that Europe must cut red tape. Copyright is seen as a burdensome legal requirement to comply with rather than a support to authors and cultural diversity that contributes to creativity and innovation. In the same vein, dominant Big Tech operators are openly challenging our cultural diversity regulations, such as Netflix who is taking Belgium to court over the financial contribution imposed on all operators as part of the implementation of the EU Audiovisual Media Services directive. 

This is the new reality that we need to consider carefully as we try to anticipate and prepare for both challenges and opportunities in the next coming years. More than ever, SAA members feel the need for such an organisation that gathers together their knowledge and expertise to defend and improve the situation of audiovisual authors in the European region.

SAA today brings together 33 collective organizations from 25 European countries, so you have an insight into the extent of collective protection in most European countries. What are the common problems of filmmakers in Europe?

- From a copyright perspective, the main problems of audiovisual authors derive from contractual freedom that allows buy-out contracts to be imposed on them in the absence of proper legislative protection. In many countries, audiovisual authors are forced to transfer to producers all their rights for a lump-sum payment and do not receive on-going payments for the exploitation of their works on the different media. The solution for that is well known since the 1990s when the first unwaivable right to remuneration with mandatory collective management was recognised with the directives on rental and lending rights and on cable retransmission. 30 years later one would think that all European authors would be fairly remunerated for when their works are shown on TV channels, copies are made for personal use on storing devices and when films are watched on streaming platforms, right? No, unfortunately not.  

The problem remains. Audiovisual authors do not enjoy the same rights as music authors in all EU countries. EU directives are implemented differently, and the market is fragmented. Whether filmmakers receive collectively managed royalties depends on which media and in which country the audiovisual work is exploited. That is why, since its establishment in 2010, the SAA has been working towards the harmonization of legislation and market to ensure that audiovisual authors have equal rights to fair and proportionate remuneration in all EU countries.

We achieved a milestone with the adoption of the 2019 European directives on copyright in the digital single market on one hand and on retransmission on the other hand, that respectively provided a general principle of proportionate and appropriate remuneration for authors and harmonized the concept of retransmission in a technological neutral way to cover cable, satellite and other means of retransmission. Unfortunately, the implementation of the directive on copyright in the digital single market did not translate in securing remuneration rights to audiovisual authors everywhere.

Whether and to what extent authors copyright can be legally protected, if we keep in mind the progress of digital technologies, the flourishing of AI companies, the increasing number of streaming platforms and online services...?

- I know, we are in a race against time. AI models are being trained on massive copyright protected material as we speak, without the permission and remuneration of the creators nor with the transparency and information necessary for them to take legal action. While we are very much focusing on AI today, there are still many countries where authors are not paid any royalty when their works are screened in cinemas, broadcasted and made available on streaming and online platforms. This is terrible when we know that these are the main means of access to audiovisual works for the audience. Our experience shows that authors’ rights protection and their translation in remuneration is not a given in the audiovisual market and that it must be imposed by legislative mechanisms, whether at national or European level.

At the EU level, we are waiting for the Commission to make an official assessment of the implementation of the 2019 Copyright directives in 2026 and we will do our own assessment in the meantime to identify the gaps to fill with new legislation. In parallel, the SAA is participating in the drafting process of the General-Purpose AI Code of Practice to implement the AI Act on tis copyright aspects. The SAA set up a new internal working group to support the team in the process, where members meet regularly to share their expertise and information about development in their countries. I bring our collective, unique insight and knowledge to the EU Commission’s drafting process. Our aim is to ensure that AI companies fully respect EU copyright laws and that collective management organisations are considered partners to get licences.

There is more and more talk about the misuse of artificial intelligence and copyright infringement. When it comes to the audiovisual sector, actors and screenwriters are the first to be hit. And what happens to the directors? How can AI companies abuse a director's copyright?

- Some AI companies would argue that they are not abusing authors’ rights, because they believe that the training of their models falls under the text and data mining (TDM) exception of the 2019 directive on copyright in the digital single market. The SAA argues that this was never the intention of the legislators when the directive was negotiated (as generative AI was not even considered back then). Moreover, it is not the role of an exception to legitimise the development of an entire new industry on the backs of creators without their consent and remuneration. Training generative AI is not TDM, a view shared by several scholars too (such as Tim W. Dornis).

For now, unfortunately, the EU Commission shares the view that the TDM exception applies and that creators can opt out if they want. But that’s easier said than done, so that’s where collective management organisations come in. They have extensive experience in licensing works and can play a key role in facilitating the authorisation of the use of works in exchange for remuneration. This is an important point that we are currently making in our contribution to the EU General-Purpose AI Code of Practice. Some of our members have approached AI companies on this very issue and none of them have received a response. At the very least, we expect AI companies to be open to a dialogue with CMOs. CISAC recent study evaluating the economic impact of Generative AI in the audiovisual and music sectors shows in concrete figures the profit made by these providers and the loss of revenues for creators. This is not a level playing field!

In Serbia, the drafting of a new Law on copyright and related rights is underway, which was done without the participation of UFUS AFA, the only collective organization for the protection of the rights of film authors, but also without the representatives of film guild associations. The proposal of the new law did not even prescribe a "fair remuneration", so, if it is adopted, Serbian film authors will be deprived of what their colleagues in Europe have had for a long time. Does and how much does SAA work with the European Commission to protect and improve the rights of film authors (can you give us some examples...)?

- The SAA was created in 2010 for this very exact reason: to be the collective voice of CMOs to the European institutions, to influence and advocate for better legislation and policies affecting authors in the audiovisual sector.

Some of our achievements can be measured in terms of EU legislation, not least the 2019 Copyright Directive, which we called for from the start. In fact, Article 18, which is now the principle of fair remuneration in the law, was not in the EU Commission’s original proposal. It took a lot of work and numerous meetings with MEPs and representatives of EU countries, the co-legislators of EU law, to introduce it. In the end, creators were heard, and the principle of fair remuneration was adopted. It wasn’t as ambitious as we would have liked, but it was still a win. However, some of our successes go unnoticed from the outside of Brussels, and this is how we protect authors’ rights from further erosion.

Industry such as private broadcasters, streamers and Big Tech companies (often US companies) are actively lobbying in Brussels, pushing their market interests, often at the expense of creators. In fact, this is not only happening in Brussels, but of course also at national level. For example, Netflix put a stop to the Polish draft law on authors’ remuneration for streaming after a meeting with the Prime Minister. However, thanks to the fantastic work of our Polish member ZAPA and the entire film community they managed to win this tough battle this last summer. Similarly, the French AI start-up Mistral managed to get the French government, who is usually a defender of culture, to oppose the AI Act regulating tech companies. Again, the mobilisation of the cultural and creative sectors was crucial to overturning their opposition.

It is a shame that the Serbian politicians did not involve UFUS AFA in the consultation process of new copyright legislation. Compared to many companies, CMOs are regulated by EU law. The 2014 Collective Rights Management Directive sets out detailed rules on the establishment, functioning and accountability of CMOs to ensure high standards. This should reassure and encourage national policymakers to consult with these organisations when drafting legislation and policies that affect the rightsholders they represent. 

The SAA is working with its members at national level every time there is a demand. During the implementation process of the 2019 Copyright directives, we wrote letters to the authorities in Bulgaria, Finland, Poland, Portugal to name just a few examples. These letters had some impact on the governments and parliaments by showing that our local member was part of a European network of CMOs who were looking at them and expecting action to the highest standards.

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