Performers' equitable remuneration rights after Brexit: High Court ruling analysis

The High Court of Justice delivered a significant judgement on 30 July 2025 in Trustees of the AFM and SAG-AFTRA Intellectual Property Rights Distribution Fund v The Secretary of State for Science, Innovation and Technology, addressing fundamental questions about performers' rights to equitable remuneration in the post-Brexit landscape.

The case concerned approximately 33,000 US performers who allegedly received inadequate remuneration for sound recordings broadcast or communicated in the UK from 2016 onwards. The claimants, representing various music performer organisations, argued that the UK's failure to properly implement EU directive obligations resulted in systematic underpayment compared to UK performers receiving equivalent treatment.

Legal Framework and Claims

The proceedings, initiated through a Part 7 Claim Form on 22 December 2022, centred on Section 182D of the Copyright, Designs and Patents Act 1988, which establishes performers' entitlement to remuneration when sound recordings are exploited commercially. The claimants invoked the Francovich v Italian Republic doctrine, seeking damages where member states fail to implement EU directives effectively.

The complexity of the case emerged from the intersection of multiple legal frameworks. The WIPO Performances and Phonograms Treaty (WPPT), EU Directives, and domestic UK legislation created a multifaceted legal environment requiring careful judicial interpretation. The court examined how these overlapping obligations affected performers' rights, particularly those from non-EU jurisdictions.

Jurisdictional Challenges and Representative Actions

The Secretary of State raised several applications challenging the claimants' capacity to pursue representative actions. Concerns focused on potential conflicts of interest where individual performers might hold copyright interests alongside performance rights. However, the court indicated that such conflicts should not automatically preclude representative action, provided class interests remain sufficiently aligned.

This aspect of the judgement carries broader implications for collective litigation in intellectual property matters. The court's approach suggests a pragmatic recognition that complex rights structures need not prevent legitimate collective claims, particularly where performers face systemic disadvantages in individual litigation.

Audio-Visual Works and Evolving Rights

The judgement addressed claims relating to audio-visual works, where sound recordings intersect with visual media—a particularly complex area of performer rights. Rather than dismissing these claims summarily, the court acknowledged the need for detailed examination, recognising the evolving nature of media consumption and distribution.

This consideration reflects the contemporary reality of cross-platform content distribution, where traditional boundaries between audio and visual media increasingly blur. The court's reluctance to apply rigid categorisations suggests awareness of technological developments affecting rights exploitation.

Post-Brexit Implications

The judgement's significance extends beyond the immediate parties, highlighting tensions between retained EU law principles and post-Brexit sovereignty. The court's analysis of continuing obligations under international treaties, despite EU withdrawal, provides crucial guidance for rights holders navigating the changed legal landscape.

The case demonstrates how Brexit creates ongoing uncertainty in cross-border intellectual property matters. While the UK retains certain international obligations through treaties like the WPPT, the mechanism for enforcement and the scope of protection may differ substantially from the pre-Brexit position.

Wider Impact on Rights Administration

The judgement's implications extend to collective management organisations and rights administration systems. The recognition that systematic underpayment of foreign performers may constitute a breach of international obligations could prompt legislative review and administrative changes in how remuneration is calculated and distributed.

The case also highlights the global nature of the music industry, where performers contribute to recordings exploited internationally but may receive differential treatment based on nationality or residence. The court's approach suggests movement towards more equitable treatment regardless of geographical origin.

This landmark judgement establishes important precedents for performer rights in the post-Brexit era, clarifying obligations while highlighting areas requiring legislative attention. The decision's emphasis on international treaty obligations suggests that performer protection transcends simple domestic legislative frameworks, requiring continued attention to global standards and equitable treatment principles.