Some comments on the input and discussions "European Copyright Revisited"

The European Federation of Journalists (EFJ) represents more than 200.000 authors who work in the printed media, radio and television and in on-line and net-media. Some work as freelances, some work as staff. They fill out many different functions, but what they have in common is the fact that they create content for the media with a journalistic approach. Please find below some com-ments on the conference interventions and discussions so far.

Contract Law and authors' rights

It is widely recognised that the principle of free will of the parties does not work in each and every contractual relation. Unbalanced relations can be found in many situations. Responsible legislators therefore try to protect the structurally weaker party and to ensure that the money arrives in the right pockets.

On Member State level, Germany has taken the lead in further improving its authors' rights contract law. In addition to what Joachim Bornkamm highlighted as the three most important correctives already in place (licenses pertaining to uses not yet known are void; eminent role of the contract's purpose for the interpretation of copyright contracts; bestseller paragraph), Germany has recently updated its Authors' Rights Act by adding some more correctives to the well-known disparities.

On Community level, for instance, the European Community has passed a directive aiming at react-ing on Community level to the disparities that can regularly be found in consumer contracts. As early as in 1993 the Community passed the Directive 93/13/EEC on unfair terms in consumer con-tracts. Annexed to the directive, there is an indicative and non-exhaustive list of the terms that may be regarded as unfair. The Commission has even set up a database in which court decisions on Member State level can be searched and found.

We consider this to be a possible way of coping with the lack of balance in the contractual relation between individual journalists and powerful media groups and encourage the Commission to ex-plore the possibilities.

The economic importance of this to the content makers of the media is enormous for freelances and staff alike. It is also of great importance in order to retain European media with cultural roots in the different nations - or even with European roots.

If the internal battle in Europe concerning the differences in contract law were to be neutralised it would in our opinion set free a lot of creative energy and enhance constructive co-operation with the common goal of competing with the rest of the world on content that reflects the creative envi-ronments and special quality of European traditions.

Country of Origin versus Territoriality of Rights

The EFJ is aware that the making available of works protected by authors' rights and related rights over networks raises the question of applicable law. Particularly those in favour of harmonisation on the basis of the principle of country of origin like to refer to "Council Directive 93/83/EEC of 27 September 1993" - the so-called Cable and Satellite Directive. Those in favour of country of origin praise this Directive's approach as the international private law model for future Community legisla-tion in the field of on-demand services.

Article 1 paragraph 2 sub-paragraph b of the Satellite Directive reads as follows:

"The act of communication to the public by satellite occurs solely in the Member State where, under the control and responsibility of the broadcasting organization, the programme-carrying signals are introduced into an uninterrupted chain of communication leading to the satellite and down towards the earth."

One should not forget, however, that the solution provided for by the Satellite Directive has nothing to do with international private law. It is a solution by means of a mere definition. By defining the act of satellite broadcasting as the act of up-linking only, the legislator simply cut off any further discussion on which law(s) would be applicable to satellite broadcasting.

Before simply copying the provision into the making available context, however, one has to see to which extent these two phenomena should be treated similarly. As Maria Martin-Prat described in her presentation, the on-demand transmission is quite different from broadcasting: The centre of exploitation shifts from the country of the sender to the country of the receiver, and the person at the receiving end is free to individually choose both the place and the time of use.

The term "country of origin principle" is used in different meanings. In the E?Commerce Directive it means that Member States must refrain from restricting Information Society services originating from other countries if these services are lawfully provided in their country of origin. In the making available context, the country of origin principle would not reduce State interference - but would reduce the legal protection of rights holders.

Given the harmonisation provided for by the InfoSoc Directive, there is no pressing need to establish the country of origin principle anyway. The more similar Member States' legal systems are, the less need there is to bridge the gaps by harmonisation along the lines of the Cable and Satellite Di-rective.

Furthermore, the establishment of the country of origin principle in regard to on-demand services would not take into account the increased vulnerability of material that is made available on-line (as opposed to being broadcast). The race to the bottom would clearly be to the disadvantage of the rights holders.

We therefore conclude that the internal market can cope with existing rules of applicable law and that the application of the country of origin principle would be seriously detrimental to the legal protection of authors. Instead of stimulating it would impede the creation of works.

Adoption of the principle of origin in more areas would further the process of media establishing head quarters in countries mainly because of this country's lower protection of authors' rights. This does not just put a lot of journalists and other media content creators out of work, it constitutes a direct threat to the plurality and freedom of the press in Europe.

Management of (digital) rights and digital management systems

Global interoperability and effectiveness of systems to manage authors' (digital) rights is of great importance to our members and to all other authors and performers. It presupposes the establishment of digital management systems that actively secures interoperability.

So far, most publishers and producers would agree with us. However, the publishers and producers are strong advocates of individual rights management (management by the individual publishing house etc.) and just as strongly opposed to collective management of rights (rights managed through a collective management organisation).

The reason for this is understandable enough, seen from a purely commercial point of view. In that light, sole control is an attractive goal in itself.

In the same type of light it is just as understandable that authors are strongly in favour of collective management of rights and collective management societies. The aim of producers and publishers is to avoid that existing collective management organisations get to handle digital rights. The aim of authors and performers is just the opposite.

There are two main reasons for this. The most important reason is that producers and publishers are far the stronger party and are better able to pressure the authors into assigning all their rights - pre-sent as well as future - in an environment of individual management. This gives the companies the benefits of future revenues and sole control.

The other main reason is that many collective management organisations are governed by democ-ratically elected members and thus allow the authors to have some continuous influence on the con-ditions on which their works are licensed. Some of the collective management organisations have both authors/performers and producers/publishers as members. In these cases the organisations also constitute a platform for constructive co-operation.

Collective management organisations will remain the authors' preferred alternative as long as community regulations do not adequately protect the authors as the weakest party against being pressured into signing unfair contracts.

Collective management organisations and collecting societies are not just a way for authors to create an operable system that can compete with the individual management schemes of producers and publishers and thus making it possible for authors to benefit from future revenue.

These organisations also play an important societal role. They are a necessary basis for various legislation that supports licensing schemes in favour of users in schools, libraries, private and public institutions etc. and are required to seek authorisation to carry out the task of collecting and distrib-uting fees.

The collective management organisations are for this and other reasons obliged to license rights on equal terms to all users. Licences will not be held back due to considerations toward other business activities etc. Collective management systems further plurality and allow big and small businesses to coexist and to share the same terms and the remuneration with the authors and performers who have created the content. Voluntary co-existence of interoperable individual and collective man-agement can do the same in a fair environment.

The EFJ agrees that effective management of (digital) rights and ditto digital management systems are important the proper functioning of the internal market. We are in support of Commission initia-tives to further these goals if this can be done without destroying nationally based collective man-agement organisations and without further tipping the balance in favour of the continuously stronger media companies.

Anne Louise Schelin

Albrecht Haller

Members of the EFJ Authors' Rights Expert Group