Posts Tagged remuneration right
It’s not just the European Commission working on a revision of copyright legislation. Before the different national governments broke up for summer recess, 3 managed to squeeze through copyright legislation.
The first is the Netherlands which has adopted a very interesting law for screenwriters and directors with a number of provisions that should help them secure fair remuneration for their work.
It includes provisions requiring written contracts that clearly state which rights are being transferred as well as providing for an unwaivable right to proportional fair remuneration with compulsory collective management for broadcasting (including catch-up services) and retransmission services. On-demand exploitation isn’t covered by the new agreement but we understand that a voluntary collective agreement is under negotiation. There has been significant conflict in recent years over the application of the Satellite and Cable Directive with Dutch cable operators refusing to pay authors and performers. The new law should help resolve this but discussions won’t be easy as the authors’ and performers’ societies must negotiate with a possibly cartel-like collective body (RODAP) made up of all the cable operators, producers and broadcasters.
Despite the difficult conditions the new law could be a possible source of inspiration for other countries and even the European Commission as it prepares its legislative initiative on copyright? You can read a short summary of the law, which came into force on 1st July, in English here. The authors and performers societies have made a video describing the law here.
Things are less positive in Austria, however. The new law there extended the list of devices subject to private copying levies. While this may seem like positive news for authors, the law contains a number of details which undermine the headline benefits to creators. The law comes into force on 1st October.
In addition, the Austrian government has updated its law on film copyright following the Luksan judgement. The new law doesn’t have much for screenwriters and directors, confirming the presumption of transfer of rights to the producer. There are even concerns that the wording of the law may prevent authors from mandating CMOs to manage certain rights.
Finally, in Portugal, on 5th July, the revision of law concerning private copying levies came into force. The new law, which had an arduous path to adoption including an initial veto by the Portuguese President, extends the range of devices subject to private copying levies as well as the exceptions for payment for certain professional activities. The law also fixes the total value of levies that can be collected by rightsholders’ organisations at €15m while setting governance and transparency standards for these CMOs. Any levies above this figure go to the Portuguese cultural development fund to finance cultural initiatives. An excellent summary of the new law by Pedro Malaquias can be found on the blog of the Journal of Intellectual Property Law and Practice here.
On the issue of private copying, the UK government has now withdrawn its private copying legislation following the final High Court judgement in the judicial review of the regulations brought by BASCA, the Musicians’ Union and UK Music. It is unclear whether a new piece of legislation will be put forward. You can read a more detailed summary on the Kluwer Copyright blog here.
You can now read this post auf Deutsch hier.
The International Literary and Artistic Association (ALAI), a well-known gathering of copyright law experts founded by Victor Hugo in 1878, held its annual international congress in Bonn on 18-19 June 2015. The theme was ‘remuneration for the use of works: exclusivity v other approaches’. ALAI has a habit of ‘looking out for authors’ said Victor Nahban, ALAI’s President, during his opening speech and two days of discussion of all possible mechanisms to guarantee rightholders’ remuneration in the digital world ensued.
Finding a fair deal for authors is one of the issues the Commission is currently working on in the context of the upcoming proposal for EU copyright reform. Authors and performers’ remuneration is on the agenda of the Commission and the European Parliament but no political decisions have yet been taken, said Maria Martin-Prat, the Commission’s head of the copyright unit. Additional hurdles to be tackled which she raised were the unfair contractual position of authors, while stressing Member States’ reluctance for any EU intervention, and the unfair value transfer online in favour of intermediaries.
It was clear from the discussions that authors should be remunerated, not just compensated, but there was disagreement as to the means to achieve this. A number of speakers, including ALAI former vice-president Adolf Dietz, clearly think and repeatedly voiced their claim that statutory remuneration rights are the only way forward to improve the authors’ position, not exclusive rights. Indeed, the simple fact that ‘remuneration for the use of works’ was the topic of the Congress is proof enough that exclusive rights do not allow authors to be fairly remunerated. As such, exclusive rights ‘lose their raison d’être and need to be replaced by another model’ according to Thomas Dreier (Karlsruher Institute for Technology).
In this context, the SAA’s claim for ensuring audiovisual authors’ fair remuneration for all exploitations of their work – an unwaivable right of authors to remuneration for their making available right (based on revenues generated from online distribution and collected from the final distributor) combined with mandatory collective management – was mentioned as a possible solution. Indeed, it is a simple solution to put in place and to include in the revised Copyright Directive to be. It would not interfere with the producer’s role to produce and exploit audiovisual works but would organise the remuneration derived from online exploitation, which would be collected from the final distributor and flow back to authors through their CMOs regardless of the number of links in the audiovisual commercial chain.
The crucial role of CMOs in guaranteeing that authors actually receive the fair remuneration they are entitled to was underlined several times during the Congress, notably by Sylvie Nérisson (Max Planck Institute for Innovation and Competition in Munich) and Jorgen Savy Blomqvist (Copenhagen University, Denmark), explaining that remuneration rights can only work in practice if they go through CMOs because they provide authors with bargaining power. The important role of CMOs and unions in helping authors get better contracts and support in litigation was also raised.
Other interesting ideas to guarantee authors’ fair remuneration were debated during the Congress, all in all giving the Commission plenty of food for thought and concrete proposals on how to make the EU’s Digital Single Market fairer for authors.
I have just got back from Vilnius where I was invited by the Lithuanian Ministry of Culture to make a presentation on the collective management of audiovisual authors’ rights. They are seriously considering improving the protection of audiovisual authors and performers’ rights. The conference aimed at assessing the protection of audiovisual authors and performers at international level, European level and in a specific country, Spain, before entering into a discussion of their situation in Lithuania.
At a time of uncertainty for the future of EU copyright rules due to the changes in the European Commission, it was very refreshing to hear that there is at least one Member State who does care about audiovisual authors and wants to address the current inefficiencies in the legal framework that prevent them from exercising their rights.
After expanding the list of devices subject to private copying levies in 2011, which significantly increased the compensation collected for authors, performers and producers (€3 to 4 million a year in total in a country with 3 million inhabitants), the Lithuanian Ministry of Culture is now preparing a draft law to improve the situation of authors and performers of audiovisual works and enable them to receive remuneration for both the creation of audiovisual works and their subsequent use in the various possible forms of exploitation.
Inspired by existing legislation in Spain, Poland, Bulgaria and Estonia, the draft law will propose distinguishing between the remuneration to be paid to the author by the producer for the creation of the work and the remuneration to be paid by users for the commercial use of the works. To protect the interests of the authors, the draft law proposes that producers will not be able to takeover the rights of authors to remuneration for the use of the audiovisual works. Agreements in which authors waive their right to remuneration would be deemed invalid. In addition, it proposes to provide for the compulsory collective administration of the remuneration which is seen as the only way to ensure authors’ right to remuneration in practice. This argument is strengthened by the Collective Rights Management Directive which now provides for European standard criteria for governance, accountability and transparency of collective management organisations.
Interestingly, the Lithuanian Ministry of Culture invited other Member State representatives to the conference. Was the objective to give them inspiration for their future legislative plans? I hope that the European Commission will hear about this Lithuanian initiative and will address, in its future activities on EU copyright rules, this urgent issue of the remuneration of audiovisual authors in the digital era.
“The existing contractual protection of authors, as included in copyright law and, indirectly, in general contract law, appears not to be sufficient or effective to secure a fair remuneration to authors or address some unfair contractual provisions.
Besides the causes that are generally put forward to explain this unbalance and lack of protection, new elements have emerged. Firstly, the increasingly dynamic markets for exploitation, notably digital markets, lead to the quick obsolescence of a contract agreed upon at any point in time. Secondly, due to the multiplicity of forms of exploitation and of undertakings exploiting works in the current environment, the contract between the publisher/producer and the author is only but one element in a web of contractual relationships and revenues streams. The examples given in this study of the difficulty to secure a fair remuneration in digital exploitations, of the practice of buy-out contracts, of the invocation of the presumption of transfer, of the refusal to pay CMOs remuneration for authors of audiovisual works, are illustrative of the shifting power among the stakeholders to the detriment of creators. A last factor is the cross-border dimension that increasingly characterises the exploitation and use of works, which is likely to enhance the discrepancies of the contractual protection of authors depending on the level of protection they enjoy in each of the countries involved.
The digital economy is based on creative works. A basic principle is that authors should be associated in the exploitation of their works and receive a fair remuneration each time the economic value of their work is exploited. The rules existing in some Member States to protect the creator aim, on the one hand, to define the conditions of negotiation so as to balance the bargaining power of both parties (acknowledging that such a balance is tilted against the author) and, on the other, to impose some basic obligations inherent to the bargain itself. Despite the additional recourse to the general principles of contract law, such rules do not address the following key issues:
- the adequate remuneration of the author is not sufficiently ensured by provisions on copyright contracts;
- the weaker position of the author in the enforcement of the protective legal provisions is largely ignored;
- no adaptive or corrective measures allow to amend contracts governing a dynamic and evolving situation;
- the obligation of an explicit determination of the scope of transfer of rights proves inefficient in preventing an all-encompassing, and time unlimited, assignment.”
This is the conclusion (pages 13-14) of a recently published study commissioned by the European Parliament’s committee on Legal Affairs on “Contractual arrangements applicable to creators: law and practice of selected Member States” which was conducted by KEA and CRIDS (University of Namur). Following this far-reaching conclusion, some recommendations were put forward to improve the level of fairness in copyright contracts such as imposing minimal formalities, an obligation of exploitation, obligations of transparency and reporting of financial streams and revenues related to the exploitation of works, unwaivable rights to remuneration for some kinds of digital exploitations, etc.
After several calls from European authors’ organisations (here and here) to put an end to buy-out contracts, this study provides evidence of the rights’ confiscation phenomenon that many European authors experience in their professional life. The study’s proposed remedies are particularly timely and should be taken into account by the European Commission in the current review of EU copyright rules.
SAA has been promoting the idea of an unwaivable remuneration right for the last two years. Performers organisations have also called for a similar right. Our analysis, put simply, is that while it would obviously be better to strengthen the negotiating position of screenwriters and directors by introducing standard contracts or changing contract law, the reality is that this is unlikely to happen at EU level. Antonio Vitorino recognised this issue in his recommendations on private copying levies:
“I was, however, also made aware of the fact that authors and performers often transfer their exclusive rights in a work or other protected subject matter to the producer or the publisher. Some stakeholders claim that if such a work or other protected subject matter is then licensed to e.g. a service provider, authors and performers do not get a share of the licence fee, and need to be satisfied with the payment they received for the initial transfer of their rights.”
“I understand that such authors and performers sometimes suffer from a lack of bargaining power.”
Remuneration for private copying is one form of payment that is taken out of the contractual agreement. It is collected and split between producers, performers and authors.
However, Mr Vitorino continued:
“I do not think, however, that private copying levies are the right way to address this imbalance.”
So what is the solution?
“Mandatory rules in copyright contract law or labour law would, in my view, be a better manner to ensure that authors and performers receive an adequate share when their works and other protected subject matter are exploited. Another option would be to help them to organise themselves better in order to conduct negotiations more successfully.”
Are these recommendations to be taken on board by the Commission? We would certainly hope so. Unfortunately Mr Vitorino closed with:
“The principle of subsidiarity, however, should be given specific consideration when examining this issue at EU level.”
Which I understand as “no EU-level action will be possible and this needs to be treated at national level.”
His recommendations for the private copying system are tantamount to getting rid of the system. He recognises that this will further weaken authors and performers and suggests that any remedial action will not be possible at EU level.
Getting rid of the private copying system will take away from the weakest link in the chain with no encouragement of any alternative action to counteract these effects.
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