(Document prepared by the chair of the Authors’ Rights Expert Group of EFJ, Anne Louise Schelin for the summit meeting: “Authors’ Rights for All” in June 2000)
Moral Rights: A Prerequisite for Other Human Rights
The right to be named as the author (or performer, for that matter) and the right of protection of the artistic or journalistic integrity of a creator and his or her work are rights of immense importance. They help preserve our cultural heritage and they ensure public access to authentic scientific, documentary and artistic works.
Moral rights are also a prerequisite for a decent press characterised by editorial independence, high standards and quality. The sound development of democratic society depends on the ability of the press to secure free access to information and freedom of expression. It also depends on the ability of the press to fulfil the role of public watchdog.
There is a strong and close connection between the moral rights of journalists and their personal press liability and their personal press ethical standards.
Rights That Should Never Be Signed Away
Authors have to make a living, whether they write novels, film scripts or work in journalism. In countries where moral rights can be waived by contract, waiving them becomes the rule rather than the exception. The economic and other pressure that publishers and producers are able to bring to bear is simply too great for the individual to withstand.
It is, therefore, essential for legislation to protect authors against such pressure by stating that moral rights cannot be waived by contract (unless it concerns a very specific and very limited use of the work involved).
Global harmonisation of authors’ rights legislation (and copyright legislation) is consequently high on the agenda for authors (and performers) but only – and this goes without saying – if harmonisation takes place at the highest level.
Personal and Professional Ethics and Moral Rights
Most people find that personal integrity and high professional and ethical standards are important
qualities for an author. Most likely everyone would agree that these are essential qualities in a journalist.
Living up to the role of public watchdog, maintaining good press conduct, and being liable for everything one writes or otherwise creates are big personal responsibilities that journalists throughout the world take upon themselves.
Authors’ moral rights are linked to these responsibilities and are necessary for the journalist in order for him or her to be able to exercise influence on the authen¬tic and proper use and, not least, the further use of his or her articles or photographs.
When a journalist for an editorially independent newspaper or magazine has written an article informing readers and consumers of the positive qualities of wooden window frames in comparison with plastic window frames, he or she should not have to endure that this article be used in brochures and advertisements for a firm producing wooden window frames.
A photographer who has been permitted by the parents to take a photo of a child with AIDS for use in a scientific journal must be able to react if a third party without permission uses the photo in another context.
Guaranteed moral (and strong economic) rights enable a journalist (or photographer etc.) to sue those (typically third) parties that exploit independent editorial material for advertisement, marketing or political purposes or otherwise violate the integrity of the work and/or the journalist.
In Appendix A (below) there are descriptions of the above mentioned and other selected cases in which individual journalists (staff as well as freelances) have taken legal action against infringements that have relevance to both moral rights and press ethics.
In principle, editors have just as good reason to pursue infringements. But in practice they fail to do so. Many third party infringements of moral rights (and often also of good press conduct) are made by advertisers (customers) of the media in question, and for this reason editors are often not happy to raise such matters.
However, when journalists pursue third party infringements, media managements rarely try to block the actions and sometimes even offer support. In countries where journalists have inadequate or simply no authors’ rights protection the field is wide open for cynical and commercial exploitation of what should remain independent editorial material.
No conflict between the right of anonymity and moral rights
For good measure it should be mentioned that there is no conflict between the moral right to be named the author whenever your work is used in public and the fact that the editor of a mass medium can allow material to be published anonymously. The right to anonymity is essential for press freedom as it ensures a greater freedom of expression. It is counter-balanced by the responsible editor taking on full ethical and legal liability for the anonymous author.
Professional journalists rarely make use of the right of anonymity for themselves except in circumstances of extreme danger.
Why We Need Stronger Moral Rights In The Online World
There are many reasons why there is an even greater need for strong protection of moral (and economic) authors’ rights in the online environment.
a) Convergence and Media Concentration
The merging of text, still photo, moving pictures and sound, and the lucrative position of those who own both the content and the delivery system, combined with the effect of market forces, poses a real threat to traditional publishing and broadcasting.
The concentration of ownership that is taking place has the potential to put an end to pluralistic national newspapers, radio- and TV-broadcasts and magazines that are rooted in our respective democracies, diverse cultures and differing standards for media ethics.
The traditional professional press media of Europe are unlikely to survive the process of restructuring and increased competition as the huge monopolised multinational media, entertainment and online industry redefines the global media landscape.
It is not pleasant to envisage a new world of centralised information and entertainment services created by global companies with near monopoly status, in which the national press and publishing houses exist in a franchise system much like those that may be excellent at providing us with standardised burgers and petrol stations.
This is not as distant a prospect. It is a reality when one examines what has already taken place in the field of commercial satellite and cable TV.
There is a genuine risk of a few media monopolies owning practically all rights to publish and otherwise use the knowledge, information, history, pictures, music, films and stories of our human culture.
Against this process we rely on antitrust legislation, support for public service broadcasting and other regulations that try to maintain a balance in favour of national and traditional cultural values and community rights to diversity and plurality.
The individual author’s moral (and economic) rights are a very important bulwark against the negative effects of monopolisation of media resources. These rights enable the author (individually or collectively) to exert at least some influence over his or her work, and this acts as a counterbalance to purely commercial interests.
b) Risk of Violation of Integrity and Other Unauthorised Use
Another reason for even stronger moral rights protection in the online and digital environment is the added risk of manipulation of information concerning the identity of the author and of alterations of the content. Just as worrying is the ease by which information can be misused or used in a derogatory context that violates the integrity of the author or his or her work. It is a “cut and paste” mentality in which quality and standards suffer.
Computer specialists are often asked to handle journalistic material and, having no qualifications or experience in this field, they can add to the many infringements of moral rights taking place.
Below are some examples of common occurrence:
• Independent editorial material is mixed with advertisements in such a way that the public cannot see which is which;
• Sensitive material intended for publication in a serious and sober context only is used in a frivolous or detrimental way.
• Independent editorial material is made available online without directions on use or technical safeguards, and is thus beyond the control of any editorial guidelines and open to misuse in a fashion that traditional newspaper cuttings or analogue copies of radio and television programmes have never been.
• Satirical cartoons are separated from the text that is an integral part of the work.
The incentive to combat or prevent these infringements is mainly rooted in the professional integrity and pride of journalists. It is, therefore, essential that they be equipped with the capacity to do something about it. Strong protection of moral (and economic) authors' rights is an absolute precondition.
Authors’ Rights Promote Constructive Co-operation
Constructive co-operation between editors of news media and the journalists who provide its content is of considerable importance. Where journalists have both moral and economic authors’ rights the atmosphere is created for sound co-operation with editors.
Moral (and economic) rights necessitate negotiations between journalists and their editors at the onset of employment or assignment, and later if the editor wishes to make further use of the material (beyond that agreed in the original contract). In these talks journalists are able to influence the manner, for example, in which their journalism is made available online, and what precise guidelines must be followed by anyone granted rights to use the material.
It can be substantiated that this does not hinder the use of new information technologies. Nor does it reduce the competitiveness of companies in the countries where these practises are already in place.
Appendix B (below) gives some examples of collective agreements between publishers and broadcasters and staff and freelance journalists. In each of these agreements a great deal of effort has gone into ensuring that any use of the material must respect the moral rights of the author and the guidelines on good press conduct of the country in which the collective agreement has been entered into.
Authors’ Rights, or Anglo-American Copyright?
The continental European model of authors’ rights and the Anglo-Amercian system of copyright co-exist under the auspices of the Berne Convention, WIPO treaties, and the UN Declaration of Human Rights etc. Over the years the systems have converged on many points, but major differences still remain.
This section is not a comparative study of the different legal systems. Its purpose is to focus on the differences regarding moral rights, statutory transfer of rights and legal presumptions.
a) The Differences Regarding Moral Rights
The continental European system of author’s rights builds on the concept that there is an everlasting bond between the author and his or her work, which forms the basis for claims of moral jurisdiction. Only the rights of use (economic rights) can be transferred by contract (or through statutory transfer or exemptions). The moral rights cannot be signed away. This is elaborated in law (or through court practice) in most Continental European countries. This elaboration permits the author to waive his or her moral rights for a very limited and special use of the work.
The Anglo-American system of copyright, however, builds on common law and the principle that authors’ rights are copyrights and that ownership of all copyrights can be transferred by contract. Moral rights are not considered to be copyrights and are in principle not assignable. But the moral rights may be waived in writing by the author. And an act of ownership will not be considered an infringement of the moral rights if the author has consented to this act, even if it would otherwise constitute an infringement. Consequently, authors are routinely pressured into waiving their moral rights at the same time that they are pressured into signing over all the rights of present and future use.
Not only can the moral rights be waived as described above. Only certain types of works are protected by moral rights. Among works that are exempted in UK legislation are “works made for the purpose of reporting current events”, and “anything done by the author as a result of the work having been made in the course of the author’s employment”.
All in all, it must be said that moral rights do not protect most journalistic work whether the work has been produced by freelance journalists or during employment.
Strong protection of moral rights is essential for journalistic standards and a pluralistic and independent press and, not least, when it comes to exploitation of journalistic works online. The almost total lack of protection of moral rights in countries that adhere to the Anglo-American system is a cause for major concern, not least in the field of journalism.
It also distorts competition in the market.
For both of these reasons it is very important to seek harmonisation of moral rights legislation at the highest level, both within the European Union (EU) and globally.
b) Works Created in the Course of Employment and Work-for-Hire
In the continental European system of authors’ rights the rights originate in the author. The author will always have the right to be named the author and the right to claim protection against derogatory alterations or other use that is an infringement of the artistic or professional integrity of the author and/or his or her work. The author can transfer the economic rights by contract or through statutory transfer and/or legal presumptions of transfer.
In the UK and in the USA, for example, the authors are, in principle, considered to be the first owners of the copyright. However, there are quite a few exceptions to this overall rule of principle. The most important of these is that when an employee in the course of his or her employment, under a contract of service or apprenticeship, creates a protected work, the employer is the first owner of the entire copyright in the work.
In the US Copyright Act of 1976 a work made for hire is defined as “a work prepared by an employee within the scope of his or her employment or a work specially ordered or commissioned for use… if the parties expressly agree in writing that the work shall be considered a work made for hire.”
In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author and, unless both parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised within the copyright.
The UK copyright act distinguishes between those who work “under a contract of service”, however temporary, and those who will be “under a contract for services (independent contractors).”
As a result, neither in the US nor in the UK is a journalist considered to be the author of his or her work if he or she is an employee or does commissioned work or works under a contract of service.
This has the effect that a great many journalists (and other authors), whether working on a temporary or steady basis, have no possibility of exercising influence over either present or future uses of their editorially independent works.
Legal rules that transfer rights from the author or presume the transfer of rights unless otherwise stated in the contract can also be found in a few states in continental Europe. These rules completely undermine the authors’ rights of free negotiation and thereby also the author’s possibilities of exerting influence on the future use of his or her work.
It is essential for authors to be able to negotiate terms that will enable them to prevent infringements of their moral rights by third parties, and to be able to take legal action against third parties who do so. (See appendix A.,for substantiation of this.)
The employers (publishers, producers, broadcasters etc.,) are by far the stronger party and do not require strong legislative support at the bargaining table. On the contrary, they need to be coerced by necessity to co-operate with journalists and other authors who create the content of their media.
Conflict with Berne Convention and Human Rights Law
The lack of moral rights protection of journalistic works (and other works) in the countries that follow the legal tradition of the Anglo-American system of copyright is in conflict with the Berne Convention and basic human rights as expressed in the UN Declaration on Human Rights. The relevant Articles are cited below.
a) The Berne Convention Article (6bis)
In the Berne Convention the relevant Article (6bis) reads as follows:
”(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.
(2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorised by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.
(3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.”
The USA, UK, Ireland and several other copyright countries have been allowed full membership of the Berne Convention, even though their legislation and legal practises concerning moral rights does not live up to either the wording or the spirit of the Berne Convention.
b) Universal Declaration of Human Rights
The right to be named the author and the right of protection against alterations or public use in a context that violates the integrity of your work or your professional or artistic integrity are basic human rights. They were first expressed in legislation in 1791 and 1793, following the French revolution.
They are also proclaimed in Article 27 (2) in the Human Rights Declaration of the United Nations:
“Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”
Journalists and many other authors do not have these rights in countries with legislation on copyright that accords with UK and USA law.
Business interests tend to give priority to rentability over cultural considerations and high standards, and seem always to seek markets in countries with the lowest level of protection of authors’ rights, regardless of the fact that there may be many good reasons for this being unsound practice in the long run.
In the 21st century keen competition will be felt when it comes to high quality content. Democratic values and the rights of the individual will be prominent. The public and their governments want information, news and reporting of current affairs that they can trust.
For that reason, authors and journalists all over the world support strongly the need for global harmonisation of moral rights at the highest level of the Continental authors’ rights system.
A) Summary of court cases and settlements on infringements of moral rights involving press ethics.
B) Examples of clauses in contracts and collective agreements that prevent or enable enforcement of infringements of moral rights by third parties.
Summary of copyright cases involving
Infringement of press ethics
The editorial freedom of journalists is essential. The public should be able to trust that journalists are not influenced by economic interests when they do consumer surveys, comment on business affairs, evaluate new cars, taste wines etc.
Journalists and photographers need moral and economic authors rights to be able to exercise influence on the use of their articles, photographs etc. especially regarding use outside the normal editorial environment.
Legal proceedings of the type dealt with below are instigated by individual journalists, photographers etc. primarily owing to the wish to protect his/her editorial integrity, and to protect his/her sources from being photographed/quoted in any circumstances other than those to which such sources agreed originally.
Legal proceedings concerning damages for non-financial claims are often combined with claims for compensation for financial infringements.
Here are some examples of legal rulings and settlements in recent years:
Legal settlement (Denmark) 1999. Case against a number of banks for using journalist article for advertisement purposes. A journalist wrote an article to a magazine called Money & Private Economy in which he criticized the pension plan offers from a German bank and insurance company. This article was copied without the authorization of the journalist and distributed by a large number of banks to their customers in order to advertise their own pension schemes. Six banks paid damages to a total amount of DKK 65,000.
The municipal court of Cologne (Germany) pronounced a decision in March 1998 which underscores this. A (German) journalist was awarded 5.000 DM to cover the damages it had caused to his reputation that a newspaper had used his name on an article that had been subjected to editorial changes to such an extent that it violated the right of integrity of the journalist.
The State Court of Mannheim, ZUM-RD 1997,405 (Germany) has established that the right of integrity can be infringed by the distribution of a distorted photography. The damages were awarded to cover the economic loss incurred by the loss of integrity.
The Local Court of Hamburg (Germany) has passed a ruling on 30th December 1997 (36a C 3007/97) that establishes the right to receive damages for the economic loss incurred by not being named the author and the consequential loss of recognition and credit.
The Swedish supreme court has in a judgement from June 11th, 1996 - in a case where the artists were credited for their performances in television but not the composers of the music - distinctly emphasized that authors, not only for moral reasons but also on economical grounds, have a right to attribution of authorship.
1996. A (Danish) journalist had allowed a film director to bring a two minute long excerpt from a televised interview in a movie. The film director did not credit the journalist in connec¬tion with bringing the excerpt in the movie. The journalist received 5.000 DKK to cover the economic damages.
1995. Case (Danish) against tabloid newspaper for unauthorized use of photographs of AIDS sick 3 year old. A press photographer was allowed to take pictures of a 3-year-old baby girl who was dying of AIDS for sole use in a serious medical magazine. A tabloid newspaper copied the photographs without authorization from the photographer (or the parent). The tabloid newspaper admitted to infringing both the moral and economic rights of the photographer and paid damages to the amount of DKK 4,750.
Legal settlement of 5th January 1995 by the Municipal Court of Copenhagen. A housing investment company had persuaded a number of customers to invest in French chateaux, by showing them an article written by a journalist for the Danish newspaper "BT" entitled "Køb fransk slot for pensionen" ("Use your pension to buy a French chateau") and an article written by another journalist for the Danish newspaper "Børsen" entitled "Frynsegoder kun for aktionærer" ("Fringe benefits for shareholders only"). The court settled the case by awarding compensation and damages to the journalists amounting to a total of DKK 16,000. The company acknowledged that the use of the articles had infringed on the rights of the journalists.
Ruling of 21st February 1992 by the Danish Eastern High Court (U92.549) A press photographer had taken a photograph of a person during a reception held to celebrate this person's appointment to a new position. Over one year later, the person was accused of sexual abuse of minors in the previous job. A tabloid newspaper published the photograph from the reception (the person was smiling broadly and having a drink) several times over the course of several days, using a large-scale, somewhat blurred enlargement. The photograph had also been cut so the original context was no longer apparent.
The municipal and high courts both agreed that there had been an infringement of the integrity of the press photographer (editorial and press photographer integrity), and awarded DKK 3,000 compensation and DKK 2,000 damages.
Ruling of 4th July 1991 by Glostrup Court (Denmark). A journalist had written an article about various offers made by banks to young people, and a cartoonist had illustrated the article. A branch of the bank offering the best terms to young people according to the article enlarged the article and drawing, changing the caption to its own advantage.
The court ruled that the enlarged article and drawing clearly constituted an advertisement for the bank concerned, thus representing an infringement of the integrity of the journalist and cartoonist (editorial integrity etc). A total of DKK 25,000 damages were awarded.
Legal settlement of 7th October 1991 by Odense Court (Denmark) A journalist who attended the Building/Cultural Committee set up by the Danish Ministry of the Environment had written an article under the headline "Forbyd plastvinduer i gamle huse" ("Plastic windows in old houses should be banned"), which was published in a national and regional Danish newspaper respectively.
A company that sold wooden windows printed the article using its own notepaper and used it in a sales catalogue, giving customers and competitors the impression that the journalist had recommended the company's products. The case was settled by the ruling of the court following payment of DKK 10,000.
Case against election brochure in 1989. (Denmark). In connection with the municipal election campaign in Aabybro, Denmark, a political party used several articles earlier published by the Danish newspapers "Aalborg Stiftstidende" and "Vendsyssel Tidende" in an election brochure.
The case was settled out of court by the payment of DKK 10,000 damages, because the political party acknowledged that this use had infringed on the integrity of the journalists (editorial integrity etc).
Excerpts From Selected Collective Agreements
Collective agreement between the photographers working for two daily Swedish national newspapers Dagens Nyheter and Expression and the pictorial agency “Pressens Bild”. It gives Pressens Bild the right to license rights of use of the photographs worldwide.
The enclosed agreement is in Swedish. In point 2 in the agreement it is stipulated that the third party who is licensed to use the photographs must be put under obligation to respect the moral rights of the photographer as these are expressed in the Swedish legislation on authors rights.
It means that photographs cannot be licensed for use in for example the UK unless the third party has been specifically and contractually bound to respect the above-mentioned moral rights.
As this is not practicable the actual effect is that these photographs cannot be licensed for use in the UK.
“Clause 2. The parties of this agreement declare that any third party who is given permission to reuse the photographs is obligated to make sure that articles 2 and 3 in the Swedish Act on the Protection of Photographs are observed and that the same applies regarding the journalistic reputation of the photographer (the journalist agreement clause 4 j). Pressens Bild must organize its work so that non compliance with the above cited rules of law are actively counteracted, and so that the third party users are reminded of the prescribed regard for the journalistic reputation of the photographers.”
Collective agreement between the German Union of Journalists (DJV) and MTV Zeitschriften concerning licensing of further rights of use of journalistic material produced by employees.
In point 2 of the agreement it is clearly stated, that the author retains his or her right to prohibit any use that is likely to lead to an infringement of the moral rights of the author as these are defined in the German legislation on authors rights.
Excerpts from six different collective agreements between the French Union of Journalists and Dernières nouvelles d’Alsace (DNA), Radio France Internationale (RFI), Le Médecin généraliste, Les Echos, L’Expansion and VNU.Fr.
The excerpts all demonstrate that the journalists make it a condition for licensing their rights of further use that the journalistic material is guaranteed the same moral rights protection as the one defined in French legislation on authors’ rights.
Dernières nouvelles d’Alsace (DNA) (1998)
2. objet de l’accord et produits concernés
(…) Cette cession s’applique à une première publication dans les DNA en ligne pour le monde entier. Toute autre diffusion dans quelque autre publication ou support que ce soit sera soumise à une nouvelle autorisation de la part des auteurs concernés.
A chaque œuvre, l’auteur conserve un droit moral sur son œuvre.
Toutes les pages du site doivent comporter la mention « copyright DNA »
Radio France Internationale (RFI) (1999)
Art.5 : modalités de la cession
Les auteurs précités restent titulaires de l’ensemble des prérogatives que leur confèrent les dispositions prévues par la loi et la jurisprudence sur le droit moral dans le cadre des règles de fonctionnement normal d’une rédaction. À ce titre, il ne peut y avoir de modifications substantielles sans leur accord préalable.
Dans l’hypothèse où ces documents feraient l’objet d’une utilisation préjudiciable par un tiers, RFI saisira les tribunaux compétents afin de faire cesser ces agissements.
Les salariés visés au II du présent accord pourront, si de tels agissements sont portés à leur connaissance, en informer la direction de la société qui, à leur demande, mettra les mêmes moyens en œuvre pour faire cesser ces agissements
Le Médecin généraliste (1999)
Article 2 : objet de l’accord et produits concernés
(…)A chaque cession, l’auteur conserve un droit moral sur son œuvre ;
La page de garde du site comportera la mention « tous droits réservés »
Les Echos (1999)
Art. II.1 Autorisation d’exploitation des contributions par un tiers, personne physique ou morale.
Le journaliste autorisera la reproduction et/ou la représentation de tout ou partie d’un article par un tiers, personne physique ou morale, dans la mesure où la direction de l’entreprise de presse qui l’emploie lui aura remis au préalable un document intitulé « cession des droits d’exploitation à un tiers ».
Ce document, sous peine de nullité, précisera :
- le nom du journaliste ;
- le titre de l’article ;
- la date de parution, la rubrique et la page ;
- l’utilisation précise souhaitée et parfaitement déterminée ;
- le nom ou la raison sociale du tiers sollicitant l’exploitation dudit article ;
- ses coordonnées postales et téléphoniques.
Ce document sera obligatoirement assorti de la signature du journaliste, de la mention manuscrite : « bon pour accord » et sera datée.
Les journalistes et les directions des entreprises de presse concernées conviennent d’établir conjointement une charte déontologique précisant le cadre de ces exploitations et s’engagent à faire respecter le droit moral des journalistes et à ne concéder ces contributions qu’en vue d’une exploitation dans des supports dont la ligne éditoriale est compatible avec celle des entreprises de presse concernées
1.1 Une liste des publications (du groupe Expansion ou extérieures), autorisées à reproduire les œuvres journalistiques (articles, traductions, infographies, cartes…) moyennant paiement, sera établie chaque année par une commission composée des délégués syndicaux ou toute personne qu’ils désigneront, des présidents des sociétés de personnel, et du directeur des rédactions, qui statuera à l’unanimité.
1.2 Les rédacteurs disposent d’un droit d’alerte : ils peuvent saisir la commission à tout moment en cas de changement en cours d’année dans l’actionnariat ou l’orientation éditoriale d’un titre figurant dans la liste. La commission veillera au respect de la déontologie et pourra, dans ce cas, s’opposer à une revente d’un commun accord. Elle pourra également se réunir en cours d’année pour ajouter un titre à la liste.
1.3 La gratuité de la cession de toute œuvre ou partie d’œuvre, qu'elle soit présente dans cette liste ou non, est subordonnée à l’accord de l’auteur.
1.4 Si la cession concerne une publication absente de cette liste, elle ne pourra intervenir qu’après examen par le journaliste concerné qui pourra la refuser.
1.5 Une charte, annexée à l’accord, énumère les conditions déontologiques à respecter pou la nouvelle publication. L’auteur sera informé à chaque revente d’une de ses œuvres. (…)
VNU. Fr (1999)
Article 4 : obligations de VNU
(…) 2. Droit moral des journalistes et auteurs
VNU respectera le droit moral des journalistes et des auteurs sur leurs œuvres exploitées en vertu de la présente convention, notamment chaque œuvre devra être accompagnée de la mention du nom ou du pseudonyme du journaliste et de l’auteur, dans les mêmes termes que ceux de la publication sur support papier, ainsi que du nom du magazine dans lequel l’œuvre a fait l’objet d’une première publication.
Les œuvres devront être reproduites et communiquées intégralement et sans modification, toute coupure ou modification éventuellement envisagée devant être soumise à l’accord préalable et écrit du journaliste ou de l’auteur.
3 Exécution de bonne foi
D’une manière générale, VNU s’engage à prendre toutes les mesures nécessaires pour éviter une quelconque infraction par un tiers au droit des journalistes ou des auteurs sur leurs œuvres.
Excerpts from collective agreements between the Danish Union of Journalists and various media or media organisations.
An example of the type of Internet agreement entered into on behalf of freelance journalists and 12 different magazines, trade union papers and newspapers. Thereafter the overall collective reuse agreement with the Danish Newspaper Publishers Association, the daily newspaper Politiken, the daily newspaper Berlingske Tidende, the daily newspaper Jyllands-Posten, TV 2 and the Danish Radio- and Television (DR 1 and 2).
All the excerpts include clauses on moral rights. For further details on royalty and other conditions please access the documents (not all are available) on the IFJ web site.
The model agreement that has been entered into by 12 periodicals, magazines, trade union papers, weeklies etc.
“1. All editorial material covered by this agreement may be used (no matter when it was produced) in both the weekly magazine “……….” and the Internet version of “…………..”.
2. The Internet version of “………..” is subject to the same editorial management as the weekly magazine “…………”. In all respects it must be ensured that editorial material is dealt with in correct journalistic fashion and with due regard for section 3 of the Danish Authors’ right Act.
3. ……….. will inform everyone gaining access to the article database in the Internet version of “………..” of the authors’ right restrictions applying to the use of the editorial material as follows:
“The articles are made available for display/reading purposes. Copying in electronic/digital form is not permitted (cf. section 12 of the Danish Authors’ right Act). Hard copies may be taken for private use. Further use of the articles is subject to the permission of the journalists concerned. Contact to these journalists can be arranged via ………...”
4. From 1st January 1997 onwards a bonus of 12.5 per cent of the fee per article will be paid for any article supplied to the weekly magazine “……..” which is also used in the Internet version of “………..”.
Articles published in the weekly magazine “………..” before 1st January 1997 may be included in the article database in the Internet version of “…………” in return for payment of 7 per cent of the fee paid originally per article.
5. Freelancers who are members of the Danish Union of Journalists must be informed of (and given a copy of) this agreement before entering into agreements concerning fees.”
Excerpt from the agreement with the Danish Newspaper Publishers:
“§9. The use of the material, that a third party is given license to according to this agreement shall respect the moral rights of the author as stated in the (Danish) legislation on authors‘ rights.
In all agreements between the newspaper and third parties it must be secured that the final use of the material will take place according to proper journalistic standards and in accordance with droit moral.
In specific cases an employee has the right to tell the editor in chief that a certain article or other piece of editorial material cannot be licensed for further use because of promises to sources or similar circumstances.”
Excerpt from the agreement with the daily newspaper Politiken:
“§ 4. In connection with the further use of the editorial material it is the duty of the parties involved to avoid any use of the material that is likely to be detrimental to the integrity of either the journalist involved or Politiken, in which respect reference is made to general clauses concerning press ethics, media liability, authors’ rights and good marketing.
A/S Dagbladet Politiken must in every contract with a third party stipulate that every use of the material must be in accordance with § 3 in the Danish law on authors’ rights. It must also be clear that the authors’ rights remain with the author (except from the specific uses that have been licensed).
In specific cases an employee has the right to tell the editor in chief that a certain article or other piece of editorial material cannot be licensed for further use because of promises to sources or similar circumstances.”
Excerpt from the agreement with the daily newspaper Berlingske Tidende:
“Apart from the limitations for use of the material due to the framework agreement with the Danish Newspaper Association and the Danish law on authors’ rights, especially the clauses on moral rights, the following is agreed:
1. The final use of the material in the electronic/digital media must be done in respect of the ethical and qualitative guidelines that exist for the editorial material in Berlingske Tidende.
2. The editing of the material must be conducted by the editorial staff of Berlingske On-line or Berlingske’s other editorial units. This is also the case where the material is to be published by one of the co-partners of Berlingske.
3. The name of the author (journalist/photographer etc.) must be visible and it must be made clear that the material was first published in Berlingske, and when (date).
4. Berlingske Tidende has the duty to inform all its co-partners and third party users of this agreement and the stipulations in it and to see to it that the agreement is respected.”
Excerpt from the agreement with the daily newspaper Jyllands-Posten:
“§ 3. The buyer of the rights of use must respect article 3 of the Danish Act on Authors rights.
Stk. 2. The parties agree that written articles, photographs and drawings cannot be used in connection with advertisement. Though, foreign users may use written articles to market the agreement with Jyllands-Posten.
Stk. 4. The parties also agree that in order to observe article 3 in the Danish Act on Authors’ Rights it is the duty of third party users to name the journalist, photographer, cartoonist etc. in connection with every publication. It must also be visible that the material was produced for Jyllands-Posten.
Stk. 5. Copies must be made in extenso, including headlines and illustrations. The agreement on reuse must not give the customer the possibility of using the material in a manner that is apt to violate the journalistic integrity of neither the journalist in question or Jyllands-Posten.
Stk. 6. Far reaching agreements on reuse that give the customer a general right to reuse written articles from Jyllands-Posten can only be entered into with customers who in their employment have qualified journalists who can guarantee a proper journalistic handling of the material.
Stk. 7. It must be clear in every agreement with a customer that the authors’ rights remain with the original author and that Jyllands-Posten only handles the material on behalf of the authors and the resale and reuse without the involvement of Jyllands-Posten is not allowed.
Stk. 8. In specific cases an employee has the right to tell the editor in chief that a certain article or other piece of editorial material cannot be licensed for further use due to his or her editorial or artistic integrity and conscience or because of promises to sources or similar circumstances.”
1 Excerpt from the collective agreement with the Danish Radio- and Television Company DR and TV 2/DENMARK (two different agreements, but clause 2 is identical)
“Clause 2. In all contracts with third parties concerning sale of reuse rights it must be clearly stated what specific rights of use the third party acquires and that the third party does not acquire any further rights. It must also be clearly stated that any use by the third party must be in accordance with the clauses in the Danish Act on Authors’ right concerning moral rights, including the right to be named the author (crediting). TV 2 is obligated to produce the necessary information and standard contracts concerning this.