Luxembourg: Authors' Rights session

On 18 April 2005, the ALJ (Association Luxembourgoise des Journalistes- Luxembourg journalists’ union) organised a conference in Luxembourg on copyrights. The main speakers included IFJ authors’ rights officer (Ms. Morinière), the director of SAJ (Société des droits d’auteur des journalistes en Belgique, Mr. Guillaume), a representative of the Austrian journalists’ union (österreichischen Gewerkschaft Druck, Journalismus, Papier, Mr. Haller) and Mr. Deker, a lawyer in Luxembourg.

Ms. Morinière said the implementation of the EC Infosoc directive as national law is still not completed. Editors are trying to use the implementation to introduce legal provisions that would transfer author’s rights to them.
To combat this, the IFJ started campaigns in Portugal, France and Belgium. The protection of freelancers’ author’s rights, whose articles or photographs are published in different media without further remuneration, remains problematic. Authors’ rights on written articles and photographs must remain in the hands of the authors. Moreover, the IFJ encourages journalists and publishers to reach collective agreements so that journalists are protected from any kind of pressure regarding these rights.

Mr. Guillaume from SAJ (collecting society for journalists in Belgium) said that in Belgium the private organization Reprobel collects reprography fees and transfers some of the collected amount to the SAJ. The SAJ administers journalists’ authors’ rights and protects their work against any infringement. Mr. Guillaume stated that “neither text nor title should be changed” in a journalistic work. Moreover, the SAJ protects the intellectual property rights of authors who refuse the (re)use of their work. The republication of a work protected by copyright can only be allowed if a new license is bought by the editor. These conditions stop editors from exerting enormous pressure on journalists to release their authors’ rights. Mr. Guillaume stressed the lack of effective protection of authors’ rights in Luxembourg. He suggested the introduction of regulations similar to the ones in Belgium. He also called on Luxembourg’s journalists to organize themselves, instead of negotiating individual contracts with editors.

Mr. Haller illustrated the situation in Germany where author’s rights have been regulated since 1965. He said that the editor does not need the author’s authorization to use his/her works. In case no specific agreement between journalists and editors exists, the law prevails. He concluded that an unequal relationship between journalists and editors remains. He questioned the lack of protection of journalists at the European level, whereas measures protecting consumers do exist. In Germany, however, a minimum standard of protection exists. A clause prohibiting unknown use of journalistic works can be introduced in a contract. The editor must state specifically the use that will be made of the work, whether in print media or in another form. The author has a right to fair remuneration. If an imbalance appears between the profits generated by the use of the work and the agreed remuneration, the German law provides for a best seller clause whereby the agreement between the journalist and the editor can be adapted. Discussions focused on whether the authors’ rights could be returned to authors once they have transferred them.

In France, authors’ rights are covered by the Code de la Propriété Intellectuelle and collective agreements, said Ms. Morinière. In the adoption process for the Infosoc directive, editors tried to introduce a transfer right to circumvent the existing provisions, which the EFJ and French unions strongly denounced. In France, current discussions focus on the ”oeuvres multimédias“ where transfer of authors’ rights to editors could be facilitated.

Mr. Decker explained the authors’ rights situation in Luxembourg. He said the basic principles of copyright, which remain today, date from the 19th century. Journalists’ authors’ rights are addressed in the 8th July 2004 law on freedom of expression and the 18th April 2001 copyright law. According to article 9 of the 2004 law, journalistic works are protected by copyright if the identity of the author is known. The recognition of an author’s identity depends on the signature on the work. Therefore it is essential that articles and photographs in newspapers are signed, otherwise the editor is responsible for the content. The law provides freelancers and employed journalists with the same rights.
Article 3 of the 2001 law provides for economic rights (“droits patrimoniaux”) and moral rights. The author enjoys moral rights and can therefore decide on the release of his work and oppose any change made to it.
The law remains silent about the specific use of a work by the editor. It only states that the transfer of author’s rights and moral rights is possible, that the transfer has to be concluded in writing and that the general law on contracts is applicable. The selling of articles to a third party is possible as long as the agreement between journalists and editors does not state the contrary.

A discussion followed on the use of photographs saved on the editor’s server and published later without authorization by the photographer.
Mr. Decker argued that a photograph can only be published with the author’s permission. The unauthorized publication or the use of archive-photographs without the journalist/photographer’s permission is an authors’ rights infringement. Unless it is stated differently in the contract of employment, the work remains the property of the author. Mr. Guillaume added that the selling of the photograph to a third person is also against the law. He also said that the reproduction of journalistic works represents an important market.

See report in German here