Mandatory Payment and Copyright in Chile and Why That’s Bad for Artists

In Chile, authors, musicians and other creative types might soon be prohibited from sharing their work online unless those works are under copyright protections.

This could sound like a move of protection, to ensure artists are paid, fairly, for their work. The proposed legislation, currently before the Chilean senate, would make sure artists are entitled to collect payment for videos long after copyrights are transferred to another party.

But don’t let all that promise get in the way of the reality. “It would make licensing audiovisual media more expensive and complicated. It would also close the door to nontraditional licensing options,” writes the Electronic Frontier Foundation (EFF), an online advocacy organization focused on civil liberties in the digital world. “Creators’ rights should include their right to opt out of their ability to control a work.”

If adopted, the law would amend existing legislation demanding creative content creators to not only secure copyright protections but require payment for the use of their works. This goes beyond sampling a snippet of a song without paying for the right to use it; it demands that all work be registered and would have to be removed from availability if the rights were not secured and payment exchanged.

Imagine if YouTube pulled all songs that weren’t protected by their original artists. How would singers just starting out find an audience?

“The amendment stipulates that all contributors to an audiovisual performance whom the law regards as authors would be entitled to payment whenever their work is used online, even if they never asked for a payment and don’t want it,” continues Advox. “This would apply for the duration of the copyright and would apply to both local and foreign works.”

There’s the kicker – if a composer in Canada makes work available without charging a fee, and an artist in Chile wanted to use it, a payment of some kind would have to change hands in order for the Chilean artist to use it (or at least that’s how it appears at this point).

Advox spoke with Luis Villarroel of Innovarte, a non-government organization focused on “promoting balanced approaches to intellectual property.” He says the legislation has been embraced by the International Confederation of Societies of Authors and Composers in addition to Chilean collecting societies, which he stresses would be the organizations administrating the fees.

“It is difficult to imagine how regulators would implement such a policy in the digital realm, as websites like YouTube and Vimeo are not built to accommodate such specific requirements within a particular country’s borders,” the website says. “One can imagine that platforms that are entirely Creative Commons-based, such as Free Music Archive, could be rendered obsolete altogether.”

As it stands, the Chilean law states that performers of audiovisual works have a “right to receive compensation when their performances are broadcast, rented or made available to the public,” EFF says. “The kicker is that this right to compensation is independent of the copyright—even if the performer transfers their copyright to someone else, they are still entitled to the royalties, and the law doesn’t even permit them to waive that right.” EFF says this is problematic because performers, or the companies that hold the rights to the work in question, “could create new roadblocks to the creation of parodies, mash-ups or new versions of their performances, independent of copyright. It would further complicate the process of clearing rights to audiovisual works, and cast a new legal cloud of uncertainty over the activities of creators, producers and journalists who build on audiovisual works in compliance with copyright law.”

The difference between the current law and the proposal, other than the mandate that all works be copyrighted without the ability to waive those protections should a creator wish to, is the demand for payment.

“This might sound like a benefit to authors, but it comes at a very high price for the public and for authors themselves,” EFF explains. Public domain would cease to exist. Creative Commons licensing? Ditto. If an artist creates a piece for charitable use, that organization or foundation would still have to pay to use the painting, photograph, play or piece of music, even if the author refused to take a single cent for it.

By the way, it might be nothing for the YouTubes of the world to pay authors for their work, but any smaller, local and niche sites? Kiss them g’bye.  Further, what’s the guarantee that a fair or living-wage percentage of the copyright use fees would go to the artists who are allegedly protected by this law?

“We can only speculate about how much of this booty would end up going back to the authors, and how much would end up lining the pockets of the collecting society,” EFF says.

It’s not clear when the Chilean senate might vote on this legislation; stay tuned for updates as they become available.


Amber Healy

I write about music policy and lawsuits because they're endlessly fascinating.

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