Posts Tagged Directive

Authors’ Remuneration – The last resort: going to court

There is an interesting court case underway concerning the remuneration of an author that is attracting interest on both sides of the Atlantic.

Harry Shearer, a composer and co-writer behind the cult film “This is Spinal Tap” (among many, many others) is taking Vivendi’ Universal Music Group and Studio Canal to court (interviewed in Le Monde on 1st December 2016) seeking 125 million dollars in compensatory and punitive damages for unpaid royalties from the exploitation of the film.

Mr Shearer’s complaint echoes the story of SAA patron, Roger Michell, when he spoke about his experience as the director of Notting Hill at the launch of the SAA White Paper last year.

These cases are striking examples of the many problems that screenwriters and directors face. Even those authors who are able to negotiate fair deals often find it difficult to enforce them or have any visibility on whether the reporting received is accurate. This isn’t about demonising producers, they’re not bad by nature and they play a vital role in the financing and production process. It is about ensuring that screenwriters and directors, who negotiate their contracts before filming is even guaranteed, are connected economically to their works for the duration of their exploitation.

It is rare for an individual creator to go to court, the risks of ruining relationships and being blacklisted are very real. As demonstrated in our Infographic, they are facing very big players.

unbalanced-negotiating-position-crop

In its proposal for a Directive on Copyright in the Digital Single Market presented on 14 September 2016, the European Commission proposes to generalise an exploitation transparency obligation (authors should receive on a regular basis information on the exploitation of their works) and a contract adjustment mechanism for authors considering that the remuneration originally agreed is disproportionately low compared to the revenues derived from the exploitation of the work. These are welcome provisions to start addressing the issue even if they need some amendments to ensure that they deliver the intended effect and are not easily avoided.

However, is it really the solution? Going to court each time the audiovisual industry neglects or ignores the authors’ right to be connected economically to the exploitation of their works? At SAA, we believe that another solution is possible, in particular for the online exploitation. Audiovisual authors urgently need a EU legal basis for remuneration schemes providing them with income for the online exploitation of their works across Europe. SAA calls for the introduction in the proposed Directive of an unwaivable and inalienable right to remuneration for audiovisual authors that would be collected and distributed by collective management organisations from the online platforms who distribute audiovisual works to the public. It is now up to the Council (Member States) and the European Parliament to introduce this proposal to ensure that the digital challenges of audiovisual authors are also addressed by this Directive.

It will be very interesting to see how Harry Shearer’s case plays out and how the European legislators will strengthen the situation of screenwriters and directors in Europe so this sort of thing doesn’t happen.

In the meantime follow Harry Shearer’s progress on his Fairness Rocks website and SAA’s website for updates on the progress of the European legislation.

JT/CD

 

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Look! a Netflix tax!

And while you were distracted by that, you didn’t notice all the extra TV advertising.

While headlines spoke of another big tech tax (a Netflix Tax to add to your iPod tax, Google tax and YouTube tax – see “Fair Remuneration is not a tax”), last week reporting on the new AVMS Directive to be presented by the European Commission on 25 May failed to lead with the fact that the future of TV in Europe is more advertising.

With the new “flexible rules”, product placement and sponsorship are encouraged on all audiovisual media services and broadcasters will be able to cram more advertising into primetime (when there are more eyeballs) and advertising for programmes from the same media group don’t count.  Advertising during films used to be limited to every 30 minutes, but even that has been cut down to 20 minutes.  It’s a massive shift.  The Commission claims that the competition in the sector will prevent any excesses and that more money will flow into production – we’re not convinced.  What we do know is that the integrity of an authors’ work will be put under even more pressure from advertising and that media services’ attractiveness to consumers will decrease.

But of course, don’t worry about that. Worry about the already-met 20% European content quota and the optional financial contributions services like Netflix might have to make.

And definitely don’t look at the new definition for video sharing platforms – responsible for the organisation of the stored content, but with no editorial responsibility over this content to maintain the liability exemptions of the E-Commerce Directive…

JT

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Implement or copy-paste?

I am back from Vilnius again where the Mykolas Romeris University, in cooperation with the Ministry of Culture of the Republic of Lithuania organized a conference on the collective management of authors’ and neighbouring rights in Europe, focusing on the implementation of the 2014/26/EU Directive on Collective Rights Management.

Professors of copyright law from Lithuania, Estonia, Latvia, Poland and Germany discussed the necessary changes to their national copyright law to comply with the Directive and the possible need to develop a separate legislative corpus on the collective management of copyright and neighbouring rights. They highlighted the growing use of the term “rightholders” which dilutes the original authors among their licensees (producers, distributors) and the poor reference to authors’ rights in the 2014/26/EU Directive.

I presented the challenges of the implementation of the Directive for audiovisual authors’ societies.  Today – at the implementation stage – they face the same problems they denounced at the time of the negotiation and adoption of the Directive: a text targeting music societies because of their dominant position, but applicable to all kinds of collective management organisations (CMOs) whatever their size and the rightholders they represent, thus ill-adapted to audiovisual authors’ CMOs.

The remaining question will concern the attitude of Member States towards this text. How will the Directive fit with their existing supervision mechanisms? Will they rethink their existing systems or adapt the Directive’s requirements to their local mechanisms?

When a Directive (Wikipedia definition) requires Member States to achieve a particular result without dictating the means of achieving that result (which is the usual process) Member States normally have a certain amount of leeway as to the exact rules to be adopted. But when a text like Directive 2014/26/EU goes into such detail on the way CMOs have to be organized and governed, on their distribution plans, the way they communicate with their members, their reporting requirements – which make CMOs some of the most regulated private non-profit organisations in the world! – it leaves little room for Member States to enact real implementation. If Member States are left with nothing to decide, then the temptation to just copy-paste the Directive is strong.

Is this an example of better regulation?

CD

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