Abstract: Securing creativity and fair remuneration for creators in the digital era: from contractual protections to remuneration rights and beyond

The remuneration for creators is at the core of copyright’s rationales. Indeed, copyright provides incentives for authors to create for the benefit of society, by securing them a fair remuneration for the use of their works and by fostering the well-functioning of (fair) markets. Remuneration secures personal autonomy of creators, allowing them to create and to express themselves freely. Furthermore, the remuneration for creators benefits from strong fundamental rights. Despite the importance of securing a fair remuneration, the distribution of the revenues for the exploitation of works protected by copyright (and of performances) is, however, not always fair for creators and artists. The digital single market strategy has finally paved the way to the acknowledgement of the need to find stronger and harmonized strategies to secure fair remuneration for authors and performers, by introducing for the first time copyright-contract rules as an element of “fairness” of copyright focused markets (Directive (EU) 2019/790 of 17 April 2019). This paper argues that a genuine implementation of the remuneration rationale of copyright law can only be the result of the combination of several mechanisms and explores whether unwaivable right(s) to equitable remuneration may be a viable alternative in order to secure the effectiveness and the efficiency of the principle especially in digital settings. The paper concludes with an illustration of a setting where a statutory-remuneration-right eventually in the form of a statutory license might be a future proofing solution in order to generate fair earnings for creators, while at the same time allowing re-uses of works and, ultimately, fostering creativity. Indeed, the implementation of a right to equitable remuneration for the initial creator for online commercial creative uses could be a workable option in order to design the future of copyright law in the digital era by safeguarding its rationales and its engine.