Имуществени права на артистите-изпълнители

Imagine the following situation: you signed a contract as a musician twenty years ago. Back then, “streaming” was an unfamiliar word, artificial intelligence existed only in films, and your music was sold on discs. Today, however, your performance is streamed on Spotify, appears on YouTube, and may already have been used to train some AI model. The question is – do you receive any money for all of this? And if not, can you do anything about it?

To answer that, we first need to clarify a few basic points.

Who actually is a “performing artist”?

It sounds like a clear concept, but legally it has a precise definition. According to the Law on Copyright and Related Rights (LCRR), performing artists are persons who present, sing, act, recite, dance, conduct, comment on, or otherwise perform a work, a circus act, or a variety act.

This is a broad category – it covers musicians, singers, actors (both theatre and film), dancers, conductors, circus artists, and in general all stage performers. What they all have in common is that they are not the creators of the work – the work is the creation of the author. They interpret it and bring it to the public. And it is precisely this interpretation that is the subject of independent legal protection as a right neighbouring to copyright.

Why is this distinction important? Because the scope of your rights depends on it. The author (the composer, the playwright, the choreographer) enjoys the full set of copyright protections. The performing artist enjoys the regime of related rights, which is similar but not identical, and in some respects more limited.

What do the economic rights actually include?

This is where we get to the heart of the matter. Article 83 of the LCRR governs what exactly the performer may do with their rights. In short, the performer has the exclusive right to authorise – against remuneration – the following acts:

broadcasting of the performance by wireless means;
transmission and retransmission by cable;
fixation on a sound or video carrier;
reproduction of the recordings;
distribution of the recordings;
публично изпълнение by means of a recording;
online access – the formulation is complex (“the offering, by wireless means or by cable, of access to an unlimited number of persons … from a place and at a time individually chosen by each of them”), but translated into plain language this means streaming and online distribution..

Importantly, each of these rights is independent. That is, you can assign one without assigning the others. You can do so for remuneration or free of charge, by way of a contract. The flexibility is considerable – but this is exactly where the problems begin.

Assignment of rights and the pitfalls that lie in wait

Unlike moral rights (which are tied to your person and cannot be transferred), economic rights can be assigned. This is the main mechanism by which your performance reaches the public – you assign rights to a producer, a record company, a broadcasting organisation, or another user.

And this is where the real practical problems begin.

Problem No. 1: The scope of the assigned rights. In the music and film industries, it is common practice for contracts to contain wording such as “all known and future modes of use”. It sounds broad – and that is precisely the problem. To what extent did you really understand what you were assigning, especially if the contract was concluded decades ago?

Recall the example from the beginning – streaming platforms simply did not exist when many of today’s active contracts were signed. Was the exclusive right under Article 83, paragraph 1, item 5 of the LCRR (that is, the right of online access) effectively assigned under contracts concluded before that technology existed? The answer is not clear-cut.

Problem No. 2: Remuneration. The LCRR provides that the use of performances takes place “against remuneration”. That sounds fine, but the law does not establish any mandatory minimum thresholds and does not provide for a revision mechanismshould circumstances change substantially.

Here, the European Union has taken a step forward. Directive (EU) 2019/790 introduced the so-called contract adjustment mechanism (Article 20) which gives authors and performers the right to claim additional remunerationwhere the originally agreed remuneration turns out to be disproportionately low compared to the actual revenues generated by the exploitation. However, how effective this mechanism will be in practice depends on how each Member State transposes it into its national law.

Collective management of rights – a solution and a problem at the same time

A large part of performers’ economic rights is managed collectively – through collective management organisations. In Bulgaria, this is PROPHON (for the related rights of performing artists and producers). Collective management is even mandatory for certain types of use – for example, for the public performance of recordings and for their broadcasting.

The system has its own logic. The reality is that an individual performer has no way of monitoring and negotiating every use of their performance on their own – imagine a single musician trying to negotiate with every bar, restaurant, or radio station that plays their song. Impossible.

At the same time, collective management raises questions of its own:

Transparency. The distribution of the collected funds follows rules set by the organisations themselves and is not always sufficiently transparent for the individual performer.
Oversight. Oversight of these organisations’ activities, although provided for by law, is in practice not always sufficiently effective.
Small performers. For artists with a smaller market share, collective management often means minimal payments that do not reflect the actual volume of use of their work.

The term of protection

How long do the economic rights of the performer last? The LCRR provides for 50 years from the date of the performance. If the recording has been lawfully published or communicated to the public within that period, the term becomes 70 years from the relevant act. This extension from 50 to 70 years was introduced in line with Directive 2011/77/EU and primarily concerns sound recordings.

This sounds excellent – more years, more opportunities for income. But there is one question: what happens to contracts concluded before the term was extended?

If you once assigned your rights “for the entire term of protection”, does that mean that the producer automatically receives the additional 20 years as well? The Directive provides for safeguards – including a right to annual supplementary remuneration during the extended period and a “use-it-or-lose-it” clause that requires producers to actually exploit the works. But the application of these mechanisms does not always run smoothly.

The digital environment and new challenges

Here we come to the hottest topic. The modern digital environment places the economic rights of performers before challenges that the LCRR was simply not designed to address.

Стрийминг платформите generate revenue under a model in which an individual performance carries an extremely small unit value, distributed among many intermediaries. That is, a single play on Spotify earns you fractions of a cent – and this raises the question of what “fair remuneration” actually means in such an environment.

Generative artificial intelligence opens an even more complex question: does the use of recordings to train AI models constitute “use” within the meaning of the law? And if so – is the performer entitled to remuneration for it?

Neither of these questions has a definitive answer under the current legal framework. Directive (EU) 2019/790 addresses some of them, but a comprehensive solution does not yet exist – neither at the European nor at the national level.

Conclusion

The economic rights of performing artists under the LCRR provide you with real but imperfect protection. The law outlines the framework, but leaves serious questions without a clear answer – what exactly you assign under the contract, whether the remuneration is adequate, how effective collective management is, and how the rules are applied in the digital environment.

For performers , the safest strategy is a combination of three things: being informed (knowing what you are signing), negotiating carefully (because what you fail to contest today will weigh on you for years to come), and a readiness to seek legal protection when necessary.

For the legislator , the challenge is to adapt the framework to the realities of the contemporary market without disturbing the balance between performers, producers, and the public.

And if you are a performing artist currently reading this with the slightly uncomfortable feeling that you may have signed something you do not fully understand today – it would be a good idea to take a look at your old contracts. A small check today can save you a major headache tomorrow. For any questions, do not hesitate to contact the team at KGK Law Firm.