Brussels, 18th August 2005
The European Federation of Journalists is Europe’s largest organization of journalists, representing about 260.000 journalists in over thirty countries. It defends press freedom and social justice through strong, free and independent trade unions of journalists.
The EFJ aims in particular at strengthening authors’ rights for journalists and photographers throughout the EU and calls for journalists and photographers to be recognised as authors of the work they create, to have control on further use of their work and to receive an equitable remuneration for it.
The European Federation of Journalists welcomes the work, which has been done to date by the European Commission to address the functioning of collective management of copyright at EU level.
We therefore welcome this opportunity to comment on the EC Study on a Community Initiative on the Cross Border Collective Management of Copyright which considers three options to create efficient pan-European structures for cross-border collective rights management namely, Option 1 (do nothing), Option 2 (eliminate territorial restriction and discriminatory provisions in the reciprocal representation agreements concluded by CRMs) and Option 3 (give right holders the choice to authorize collecting societies of their choice to online rights for the entire EU).
The EFJ wholly supports the response to the Study submitted by IFRRO, which the IFJ is an associated member of. We will therefore in the following concentrate on the aspects that are of special importance to journalists and photographers.
The collective management of our members’ rights takes place through collective agreements with the respective media counterpart, and the management of the rights is conducted by the individual media or by a collecting society (CRM). It is vital for journalists and photographers to be able to mandate their respective national journalist organization or their national CRM to represent their rights.
If the current structures of national CRMs are broken down, neither the national unions nor the individual journalists will be able to exercise the collective influence on the use of their works, that they are able to exercise in the present nationally based and democratic CRMs. Many of the present collective rights management systems offer the journalists a chance to maintain the economic interests and moral rights in the reuse of their journalistic works. Individual journalists will not have the resources to shop around for a CRM and neither the national journalist union nor the individual journalist will be able to exercise any real democratic influence in different CRMs, which are placed in different foreign countries.
Should the national CRMs no longer survive it would also mean the end of the current well functioning CRM organizations that are governed by authors’ or jointly by authors’ and publishers’ representatives, which offer an excellent platform for co-operation not only between the two parties of rightholders but also for co-operation with user-groups and the government in matters of societal interest.
As far as we have been able to analyze the suggested options 2 and 3 both entail the risk of breaking down currently well functioning systems and will therefore weaken the ability of journalists and photographers of retaining some (collective) control over the further use of their work.
Just like IFRRO we would like to express our willingness to co-operate on improving the current licensing systems to the benefit of the interests of the “copyright industry”, the business partners (authors’, performers, publishers and producers), the users and society. We strongly feel, however, that a move to harmonize collective management along the lines suggested without solving the problems with no or inadequate authors’ rights in some countries in Europe prior to this, will do more harm than good.
Journalists and photographers all over Europe have entered into many collective agreements on licensing schemes making their works widely and easily available to all on reasonable terms and in a manner that respects the independent editorial nature of the material and the moral rights of the author.
Neither collective agreements by trade unions, nor the exercise of contracts by collecting societies guarantee authors optimal rights management. Either does collective rights management solve the growing problem of the grossly uneven bargaining positions of the big media companies in comparison with the journalists. But the well functioning existing collective rights management systems enable journalists to exercise some control over the use and re-use of their work and to receive remuneration for it.
Although the study addresses in the first instance online music only, the EFJ understands that the print media sector could also become the subject of the single business model described for the music industry (Option 3).
At this stage, we feel important to stress some major points of concerns to us.
1. Good functioning of collecting societies is essential
In this respect the EFJ welcomes reference made in the EC study to the need for transparency in collecting societies, the necessity for right holders to be treated equally and receive foreign shares. We do believe that territorial borders for the exploitation of protected works in Europe are of diminishing importance. Publishing companies tend to act more and more internationally. Technical developments are also reducing the importance of territorial restrictions and digital use of journalistic works is increasing.
To this extent only, we welcome the principles underlined in Option 3 that guaranty control by right holders on the way their rights are being managed.
2. Community wide licensing will not work for small right holders
Despite the reasoning behind the EC study, which addresses in particular, the need for collecting societies to attract right holders and offer the best model for EU-wide licensing and encourage the distribution of foreign shares, journalists would never be in a position to go and search for the most competitive system for managing their rights.
To date, only a small number of journalists and photographers actively take part in trans-national trade in the exploitation of their rights, although media companies do use their work outside their own member state.
Encouraging competition amongst collecting societies to provide the best return to authors is in principle a good thing, but expecting small right holders and in particular, journalists to have resources to inquire about the best management would be a mistake. The gains in the form of possible cheaper management costs will be much smaller than the losses in the form of lost democratic control and co-operation. The best way for journalists to manage their rights is through collective agreements and/or through their national collecting societies, and to rely on well functioning bilateral agreements for cross border distribution of royalties. Considering the content of the material, this is also in the best interest of the users and the general public.
The Commission should not leave out the issue as to which conditions and rules govern the contract between journalists and media companies at national level. This is particularly important to avoid media companies to adopt the cross border licensing, which offers the weakest standards to journalists.
The EFJ understands the concerns of the European Commission to enlarge the pie to be distributed to all right holders across the EU. However, this will not happen if concrete steps are not taken to first remedy the lack of authors’ ownership of their rights that exist in several European countries .
3. Need to clarify ownership of authors’ rights
The initial allocation of ownership of rights is the foundation of collective rights management, as well as of individual rights. Collective rights management will only be able to fulfill its societal purposes and to serve the economic and moral interests of authors if all authors have initial rights ownership and the free right to negotiate the terms for the licensing or transfer of these rights whether in collective agreements or in individual contracts.
4. Bilateral reciprocal agreements do function
The EFJ understand the Commission’s concerns that reciprocal agreements should not contain restriction based on nationality, residence, and place of establishment and should allow for the fair distribution of foreign shares to right holders and treat categories of rights holders equally. The EFJ believes that type A agreements and many type B agreements already fulfill these requirements.
Reciprocal agreements do function in the field of reprography and are constantly being developed to secure better interoperability. Collecting societies in the EU live up to the requirements for efficiency, transparency, effective control and accountability in the best interests of all persons involved. The member organisations of the EFJ have no knowledge of such failures in regard to the national collecting societies, in whose management they are represented.
5. Need for guidelines/codes of conduct
The EFJ would support a set of rules of good governance for collective management so long as they respect existing and well functioning systems. The rules must not exclude existing and well functioning types of collecting management societies (CMS) or be contrary to national legislation on CMS that fulfill the principle basic requirements regarding rights holders' democratic influence, transparent tariff systems, transparent systems for distribution of fees to rights holders, adequate supervision from governments or other external bodies and access to arbitration for control of tariffs.
It is in the interest of authors (and of all other rights holders) that collective management societies are considered to be trustworthy partners by rights holders, users (the public) and society as a whole.