Neighbouring rights

Neighbouring rights are the exclusive recording rights of the performing artist on his or her performances, and the exclusive exploitation rights of the performing artist and phonogram producer on the recordings they have made.

Neighbouring rights are rights derived from copyright (and therefore called “neighbouring” rights). In the past, performers and phonogram producers were unable to invoke their own exclusive rights, which the (European) legislator found unacceptable. Neighbouring rights are valid for a period of 50 years after the date of publication of those recordings. This means that well-known recordings by, for example, the Beatles will soon be in the public domain.

How can I receive neighbouring rights?

As a performing artist or phonogram producer, you can receive royalties for neighbouring rights when your recording is made public – for example, when your music is played on the radio, on television, in shops, in restaurants and cafés, or at events. The condition is that you actually contribute to the performance or are responsible for the recordings. In the Netherlands, the distribution and payment of fees is regulated by SENA, the organisation that collects and distributes royalties on behalf of rights holders.

In order to exercise your rights, you must register with SENA and register your recordings. In doing so, you indicate which performances you have delivered and which recordings you have released as a producer. Please note: DJs, producers and mixers are not always automatically recognised as rights holders, unless they also perform as performing artists or have specific agreements laid down in contracts.

Would you like to be sure that you are getting what you are entitled to, or are you unsure about your position within a recording process? We are happy to advise you.

Infringement of neighbouring rights

In addition to infringement of neighbouring rights, legal proceedings are occasionally brought concerning the meaning of performing artist and the meaning of phonogram producer. The phonogram producer is the person who is financially and organisationally responsible for the recordings, with the emphasis on financial responsibility, to the detriment of the producer. Producers, mixers and DJs cannot usually be regarded as performers, even though their creative contribution to the making of recordings is often significant. Session musicians, on the other hand, can. Various creative contractual solutions are now in vogue in the entertainment industry to achieve a distribution of rights and income that is acceptable to all parties involved in the making of a recording.

In the Netherlands, SENA is responsible for collecting and distributing royalties and rights in connection with the public performance of music recordings (such as playing music on radio and television or in restaurants, shops and offices).

What legal steps can be taken in the event of an infringement of neighbouring rights?

If someone uses a recording to which you hold the rights without permission, this constitutes an infringement. You can then take various legal steps to protect your rights. This often starts with a letter of formal notice, in which the infringement is established and immediate cessation is demanded, possibly under threat of a penalty payment.

If this does not lead to the desired result, you can apply to the civil court for an injunction prohibiting further use and also claim damages for the unlawful use. In urgent cases, such as large-scale online distribution, summary proceedings or even an ex parte order may be possible to enforce immediate action.

For more information about neighbouring rights, please contact one of our lawyers.