EFJ responds to EP Greens Paper on Creation and Copyright in the Digital Era



                                                                                                                                             Brussels, 16th  December 2011

To Members of the Greens/ EFA group of the European

Parliament

The European

Federation of Journalists (EFJ) represents journalists' unions and associations

across Europe.

We

defend press freedom and social justice through strong, free and independent

trade unions of journalists. We also call for journalists to be recognised as

authors of the works they create to be able to control further use of their

works and negotiate equitable remuneration for these uses.

 

We would like

to raise our comments and concerns over the statement on Creation and Copyright in the Digital Era adopted by the Greens on

28th September 2011.

This paper

rightly points at the effects new technologies have on the production,

dissemination, access and use of cultural productions and at the role policy

makers should play in providing "a proper regulation framework for artists and

creators" to ensure them "a better recognition and remuneration for their

work".

The statement

accurately acknowledges that consumers and artists should not be in conflict

with one another.  Clearly, both can

benefit from each other. In fact every consumer needs intellectual property

protection, since new technologies allow anyone to become a "published" or

"broadcast" creator online, whether of words, images or sound. Consequently all

creators/authors - whether occasional or full-time - need the right to be

credited as creators/authors, to oppose any modification of their work and to

receive equitable remuneration for the use made of the creation.

We strongly

welcome the Greens' call to improve the situation of artists and creators and

to change contract law at European level in order to stop buy-out contracts.

We believe

that this step is essential to put creators in a better negotiating position

when facing their employers and clients. Too many journalists find themselves

in a very weak position when it comes to negotiating contracts and authors'

rights remuneration - when there is any negotiation - not to mention the

abusive use of "oral contracts". We believe in particular that collective

agreements negotiated by unions and media owners need to be reinforced in all

media sectors and allow for journalists working as freelancers to be covered.

The statement

also raises a number of concerns that could have damaging effect on journalists

and creators as a whole.

1.       

Authors' rights and copyright are two different regimes

The current text mixes the authors' right system - which

recognizes rights to an individual that remain with this individual- with the

copyright system based on a property right that is fully tradable. Journalists

should benefit from an authors' right system which consists of moral rights and

a number of exclusive rights that give him/her sole power to authorize use of

his/her works and enter into agreements on payment, royalty and precautionary

conditions for various uses of the work.

2.       

Moral rights should be reinforced 



Moral rights

are personal rights vested in the author and cannot be waived. Journalists have

the right to be identified and to oppose any distortion, mutilation or other

alteration of their work which could affect their honor or reputation.

We believe

that the definition of authors' rights provided in the statement is misleading

when describing moral rights. In fact giving the author the opportunity to

"comment" on the use that has been made of his/her work is different from them

either authorising modifications prior to this use, or having the right to

object to - to take legal action over unauthorised modifications that are

contrary to the author's "honour or reputation".

The right to

use extracts and quotations - accurately and with proper credit - is at least

as essential to journalists as any other citizen; but the moral rights must be

respected for all uses, quotation or in full.

3.       

No distinction should be made between commercial and non-commercial uses

of copyright material

We don't

believe that copyright should only regulate "copying for commercial purposes".

For a journalist, the simple act of reproducing his/her work on a third party's

web site without his/her authorisation can lead to a lack of revenue for

him/her. Indeed, many freelance journalists work on the basis of syndication.

This means that they can re-sell their work to several publishers and get paid

for it. Reproducing an article for free on any web site reduces opportunities

for journalists to re-sell their work.

Additionally, many

of the major peer-to-peer sharing sites are commercial, selling ads and making

profit without remuneration for artists.

4.       

Copyright is necessary to journalists' income

Copyright does

not "only represent a small part of income" for a majority of artists and

creators. Copyright (authors' rights) is in one sense the "foundation" of all their income.

In the

journalistic field, we face situations where some of journalists' income is

covered by authors' rights revenues and some by their salary. Additionally, journalists

may receive yearly remuneration for reprography (photocopying), private copy,

cable distribution and so on of over €900.

5.       

No formality required to enjoy authors' rights protection

The Berne

Convention clearly states that "the enjoyment and the exercise of these rights

shall not be subject to any formality".

Journalists,

whether they are freelance or employed, can produce up to four stories a day;

photographers, hundreds of images. Requiring them to register their work in

order to benefit from intellectual property protection would be practically

impossible and would impose impossible administrative burdens.

The need for

identification systems to allow authors to be recognised as creators of their

work should be seen as a priority. The "orphan work" debate has so far failed

to address the necessity to all creators of enforceable moral rights to avoid

orphan works in the future. Subjecting the commercial use of a work to a

compulsory registration within 5 years after the production would contradict

the fundamentals of authors' rights protection, in which authors' rights

protection is vested in the author from the first day of the creation of the

work.

6.       

Collective management systems in Europe support creators

We do not

agree that collecting and redistribution systems are "problematic and unfair in

most countries to a majority of creators". While their functioning might be

improved by more transparency, more open governance and extended mandates in

some countries, the collecting and distribution systems function well in others

where journalists are represented in these bodies' boards. They allow them to

receive remuneration for secondary uses (such as reprography, cable

distribution and private copying) - and sometimes for primary uses, when a

collecting society has been specifically mandated for that purpose. Their role

in the management of online uses of journalistic work is  key if journalistic works are to be made

available to the widest public as it is practically impossible for an

individual journalist to manage secondary uses of his/her work online.

We also

believe that extended collective licensing managed by duly representatives CMOs

offers a good solution to the digitisation of orphan works.

7.       

Remuneration for private copying must be strengthened

Directive

2001/29/EC acknowledges authors' and performers' exclusive right to authorise

or prohibit the reproduction of their works. The Directive however authorises

member states to provide exception to this rule with regards to reproduction

made for private use for ends that are not commercial and on condition that the

author receives fair compensation for these uses.

We do not

believe that the introduction of a "content flat rate" would solve the problem

of unauthorised peer-to-peer copying. The introduction of an "online

subscription fee" would go against the right for authors to authorise or

prohibit the reproduction of their work and decide on the use that can be

made of their works. For example, it is fundamental to codes of journalistic

ethics that neither advertisers nor political parties should be able to use

journalists' work without permission. Additionally, a content flat rate would

not differentiate between heavy and light downloaders of content.

Lastly, it is worth noting that many of the major

peer-to-peer sharing sites are commercial, selling ads and making huge profits

while not paying anything for the content being used.

 
8.       

The term of copyright protection

should not be reduced

Directive

93/98/EEC sets the term of protection of authors' rights to last 70 years after

the death of the author, and 70 years after the first publication for anonymous

works and those published under pseudonyms. Journalists are authors of their

work and are allowed, as well as their heirs, to decide on future uses of their

works. A seventy-year term of protection stimulates creation, respects the

author's moral right and allows for remuneration when the work is used again.

We do not believe that a patent-like term of protection would meet the same

objectives as authors' rights does, that is maintaining a personal link between

the author and his/her creation.

We thank you

for your attention and look forward to discussing our concerns further with

members of the Greens in the future

Yours

respectfully


Arne König

EFJ President