Summary
Major social media terms of service (i.e., YouTube, TikTok, Facebook, Instagram, LinkedIn, X) impose to users a royalty-free licence covering uploaded content protected by intellectual property rights (IPRs). Consequently, while social media service providers’ revenues are significant, users that are also authors and performers do not directly receive any remuneration in most of the cases.
This bargain has not gone completely unnoticed. However, the doctrine often questioned the workability of any legislative or judiciary intervention aimed at restoring balance, mainly due to the lack of legal basis, the novelty of the phenomenon, or the reticence of the parties. On the contrary, this Article argues that online social media service providers have an obligation under the fundamental rights legal framework and EU law to share the revenues derived from the exploitation of works and performances published on their platforms with authors and performers.
For this purpose, this work discusses the legitimacy of free licences with the fair remuneration principle of authors and performers. In particular, it interprets the so-called “Linux clause” of Recital 82 Directive (EU) 2019/790 (“CDSMD”), and proposes a distinction between “free licences for the benefit of any users” (here referred as “open licences”) and those for the benefit of specific licencees. While the first ones cannot be unfairly imposed by the beneficiaries, the latter are exposed at this risk.
The analysis of the cited terms of service illustrates how an infringement of the fair remuneration principle is possible, given the unbalance of bargaining power and the lack of alternatives offered to authors and performers. Moreover, it is shown how other elements, such as the payment of the service, the chances of public exposure, the initial absence of financial motivations or the narrowness of incomes, cannot justify the absence of remuneration.
This infringement could entail the nullity of the free licences with compensation for damages or, in alternative, the adjustment of the contracts. Further legislative initiatives aimed at simplifying the enforcement could introduce remuneration rights, ideally at international level, taking examples from recent national experiences, such as those of Belgium and Germany. Moreover, providers could consider allowing creators to opt for open licences when uploading their works and performances in order to preserve their free choice.
Regardless of the chosen approach, the remuneration obligation could also cover past exploitations and private international law rules more favourable to authors and performers might apply. Finally, this work tries to predict a position of the CJEU on the matter, since it is currently required to provide an interpretation of Article 18 CDSMD.
