Atresmedia
Sena collects – pursuant to Article 7 of the Neighbouring Rights Act – fair remuneration for the use of commercially released phonograms, including by TV broadcasters and cable operators. On 18 November 2020, the European Court of Justice published the Atresmedia judgment. In non-legal terms, this judgment states that TV broadcasters merely broadcast audiovisual works and are no longer liable to pay fair remuneration to master owners and performers. According to the judgment, the broadcasting of phonograms released for commercial purposes would no longer apply if permission has already been obtained for the synchronisation of the relevant phonograms in the audiovisual works.
Update March 2025
PROMOTIONS AND BILLBOARDS NOT INCLUDED IN THE ‘SORTED’ CATEGORY
For music used in adverts broadcast on RTL Nederland and Talpa TV channels, no further royalties will be paid to Sena from the 2024 music year onwards. Based on RTL’s and Talpa’s interpretation of the Atresmedia ruling, the one-off equitable remuneration is deemed to have been paid once a synchronisation agreement has been reached. They state that they arrange the rights for music use in commercials themselves.
As a result, commercials fall into the so-called ‘is geregeld’ category. Selection of this music usage is carried out using the codes of the Stichting Kijk Onderzoek (SKO). Music in commercials has SKO code 71.000. However, it has emerged that SKO also labelled promos and billboards under SKO code 71.000. A correction will be made with retroactive effect from 1 January 2024, as promos and billboards remain covered by the standard Sena licence.
Update November 2024
RTL Nederland has announced its intention to reverse its decision to classify foreign films and series as ‘already settled’ from 2024 onwards. This means that RTL will now pay the fee for music used in this category of programmes (determined on the basis of SKO codes).
The distribution of this revenue will resume for the 2024 music year with the December 2024 payment round.
On both Talpa’s television channels and RTL Nederland, only the category of music in commercials has been classified as ‘settled’ from 2024 onwards. Following comments received, an investigation is underway to determine whether ‘promos’ – announcements of television programmes that are also reported within the ‘commercials’ category (determined on the basis of SKO codes) – can be excluded from this. As soon as clarity on this matter is established, another Atresmedia update will be published.
Annex
Rights holders who wish to negotiate directly with parties seeking to use their music in TV broadcasts were able to make use of an opt-out scheme until 1 October 2023. Rights holders who wish for nothing to change could, from 4 April 2023, use the online tool MySena to agree to the so-called ‘Atresmedia fix’, an annex to the exploitation agreement. This allows us – in the event of any doubt – to continue collecting royalties for the collective and to continue negotiating fair remuneration on behalf of our rights holders.
Synchronisation agreements
Sena has been engaged in lengthy discussions with national TV broadcasters. Working agreements have been reached whereby the term ‘is geregeld’ is used for specific music usage. This concerns music use for which contractual synchronisation agreements have already been made with the relevant rights holders. In such cases, we will no longer collect or pass on remuneration for the designated programme categories. This will come into effect in the 2024 music year.
No result
Negotiations with the market leader in cable distribution have not yielded a result. We were therefore compelled to initiate legal proceedings in 2022 to obtain clarity on how the Atresmedia judgment should be interpreted. In view of this ongoing legal uncertainty, the Minister for Legal Protection has decided not to grant us an extended licence for the time being.
Agreement
Since September 2023, Sena has once again been collecting and distributing royalties for all phonograms released for commercial purposes that are broadcast on NPO channels. An agreement was also reached with Talpa TV and RTL Nederland at the end of 2023. As a result, the playlists of the RTL and Talpa channels could be included in the distribution of 15 December 2023, covering the period from January 2022 to October 2023.
‘Is geregeld’ objection reporting procedure – Atresmedia
MySena provides an overview of tracks for which it has been indicated that, for the RTL and Talpa television channels, the remuneration for the use of the music has been settled between the producer and the television channel. If, according to your records, this is not the case, you can follow this reporting procedure.