Neighboring rights

What we do

A neighboring right governs the exploitation of copyright. Neighboring rights ensure that those who have contributed to a product protected by copyright are protected. Consider, for example, a record company. The record company enjoys a neighboring right to the musician's copyright. In other words, a neighboring right protects the contractual exclusivity and exclusive exploitation rights of the copyrighted creation. This also occurs in other professional fields, such as in the television industry or as an artist. Should a neighboring right be violated, damages may be claimed, among other things.

We have the knowledge and expertise to assume diverse roles: from advice to dispute resolution. We have an experienced team of lawyers and legal experts in the field of neighboring rights. Contact us to discuss the possibilities.

What are neighboring rights?

Neighboring rights are the rights that protect the performances of performing artists, producers, and broadcasters. They are called “neighboring” because they closely resemble copyright but do not protect the original creation itself. Copyright protects the work (the composition, the script, the lyrics); the neighboring right protects the performance by which that work is made audible or visible: the musician’s performance, the record company’s recording, the broadcaster’s broadcast. Both rights can apply simultaneously to a single sound recording or film and must therefore, in practice, be managed alongside each other.

This protection is enshrined in the Neighbouring Rights Act (WNR) of 1993 and aligns with international treaties such as the Rome Convention and the WPPT, as well as European directives. Whether you are an international record label or a local band releasing its first recording, the law gives you control over the exploitation of your performance and the right to fair remuneration for commercial use.

Who has neighboring rights? The four categories

The WNR recognizes four categories of rights holders, each with its own starting point in the law:

• Performing artists (Articles 1 and 2 WNR): the actor, singer, musician, dancer, and any other person who performs a work of literature, science, or art, as well as the artist who performs a variety or circus act or a puppet show. They have the exclusive right to record, reproduce, distribute, and make public their performance.
• Producers of phonograms (Article 6 WNR): the person who first produces a sound recording (phonogram), such as a record company or music producer. They have the exclusive right to reproduce, distribute, and make the phonogram public.
• Film producers: the person who brings about the first recording of a film and bears the financial and organizational risk.
• Broadcasting organisations (Article 8 WNR): they have the exclusive right to rebroadcast, record, reproduce and make public their programmes.

Whether you are advising a listed media group or a freelance session musician who wants to know if they have rights to a recording, the starting point is always the question of which category someone falls into and which actions fall under that category.

How long do neighboring rights last?

The duration of protection is stated in Article 12 of the WNR and varies by category:

• Performances: in principle 50 years, calculated from 1 January following the year of the performance. If the performance is lawfully released on a phonogram within that period, the protection of that performance recorded on a phonogram runs for 70 years.
• Phonograms: 70 years, calculated from 1 January following the year of the first lawful publication. This period has been extended from 50 to 70 years since 1 November 2013.
• Broadcasting: 50 years, calculated from January 1 following the year of the first broadcast.

In practice, the precise starting point of the term is often decisive for reissues, remasters, and the re-exploitation of old material. We calculate this for you so that you know whether a recording is still protected or may now be used freely.

Fair remuneration and collective management (Sena)

A special regulation applies to commercially released phonograms (Article 7 WNR): broadcasting or making public in any other way is permitted without prior permission, provided that fair remuneration is paid for it. This remuneration accrues to both the performing artist and the producer. In practice, this remuneration is collected and distributed by collective management organizations: Sena for the broadcasting and public performance of music recordings, and organizations such as Norma for, among other things, home copying and lending rights royalties for performing artists.

For radio stations, the hospitality industry, retail, fitness chains, and streaming services, this raises concrete questions: when is a fee due, how is the amount determined, and what falls outside the scope of the scheme? From an international streaming service to the corner café with the radio on: we advise on liability, rates, and disputes with management organizations.

Transfer and licensing of neighboring rights

Neighbouring rights are property rights: they are inheritable and can be transferred in whole or in part (Article 9 WNR). A deed drawn up for that purpose is required for a legally valid transfer. Anyone who does not wish to transfer the rights but does wish to permit exploitation operates by means of a license. A carefully drafted agreement specifies which rights are granted, for which territory and for what term, whether exclusive or non-exclusive, and for what consideration.

In music, film, and media practice, copyright and neighboring rights often overlap; a single recording can have multiple rights holders. We draft and review artist, producer, and exploitation contracts, in conjunction with our licensing, to ensure you are not faced with any surprises.

Infringement of neighboring rights: enforcement and compensation

If your performance, recording, or broadcast is copied, reproduced, or made public without permission, this constitutes an infringement. The WNR declares a large part of the enforcement instruments under the Copyright Act to be applicable by analogy. You may claim, among other things, an injunction (if necessary via summary proceedings), damages or surrender of the profits derived from the infringement, and an order for costs pursuant to Article 1019h of the Code of Civil Procedure. In addition, intentional infringement may be prosecuted under criminal law.

Conversely, we also defend parties wrongly accused of infringement. Our mixed teams of lawyers and in-house counsel switch between negotiating, issuing demands, and litigating, depending on what your case requires.

Neighboring rights within intellectual property

Neighboring rights rarely stand alone. They are part of the broader Intellectual Property (IP) law and, in practice, touch upon copyright, contract law, portrait rights, and media law. We therefore approach your question holistically: from the exploitation of a music catalog to a dispute concerning an unauthorized sample. For the international corporation as well as for the baker on the corner who plays music in his shop, we translate the law into a workable answer.