Statement by the European Federation of Journalists (EFJ)
The European Union has developed a community framework for the protection of authors´rights and related rights. This framwork is characterised by four main criteria:
- Maintenance of a high level of protection in the area of intellectual property,
- Assignment of the exclusive rights to the authors and the rightsholders of related rights,
- Classification of only natural persons as authors and
- Strengthening the rights of the rightholders of related rights.
The Council Common Position on the draft Directive on the harmonisation of certain aspects of copyright and related rights in the information society, adopted on September, 14th 2000, provides in Art. 2 - 4 the exclusive rights of reproduction, communication to the public, and distribution rights for authors. The same applies in principle to the rightholders of related rights, i.e. photographers or performing artists. The draft Directive also provides that with the first sale of the original or copies of the work within the EU, the distribution right is exhausted.
At the same time, the Directive guarantees that the right is not exhausted in connection with on-line-services. This means that any delivery of works to on-line-services needs the authorisation of the authors or rights-holders. This also applies for reproductions, which are made by the user of an on-line-service with the authorisation of the author or the rightholder.
The EFJ believes that the draft Directive is a major step in the direction of a European copyright system, which is based on the continental European system of authors´rights protection. Although the Commission deliberately avoided to take an explicit decision between this system and the Anglo-American copyright system in its proposals for a directive, the exclusive rights for authors and performers are embodied in an European Directive. Therefore, for the first time European-wide authors and performing artists, and not companies, are the first owners of these rights.
The draft Directive does not only regulate the question of the exclusive rights, it also takes a decision on the exceptions and limitations of the reproduction and distibution rights in Art. 5.
Since the publication of the first draft Directive in 1997, there has been a heated discussion by lobbyists both in Brussels and in the Member States with regard to the exceptions and their conditions. These discussions resulted in the fact that the draft of Art. 5 para 2 and 3 has now an extensive catalogue of exceptions, other than it was the original intention of the Commission.
This catalogue allows those exceptions and limitations, which exist in the legislation of the Member States with regard to analogue use, remain valid. The draft directive counts more than 20 exceptions and limitations. If the exceptions existing in the Member States are added, a great number of different exceptions and limitations will exist, once the Directive enters into force.
This part of the Directive is, in the view of the EFJ, not in the interest of creators including journalists as authors of their works.
The EFJ critizises that the aim of harmonisation has not been achieved in Art. 5. The regulations in the paragraphs 1 - 3 do not prevent a fragmentation of right, they virtually foster incoherent exceptions and limitations in the authors´rights legislation of the Member States. Important demands by journalists and other authors are not fulfilled:
- In too many cases the exceptions and limitations are not dependent on fair and equitable remuneration to rightholders (i.e. in the case of reproduction of works by public libaries, museums or archives or in the case of reproduction in press clippings ),
- in those cases where a remuneration is provided for ( i.e. Art. 5 Para 2 lit. a), it is not assigned with the authors but with a rightsholder, who is not defined,
- finally the use of the term " fair compensation" instead of "fair renumeration" in the cases provided for are not in the interest of authors.
The latter is made clear in point 35 of the Directive. It says, that under the condition that the rightsholder has already received a payment in some other form, no separate payment may be due. The EFJ fears that this vague advice with regard to payments is used by interested parties to reject the demands by authors for renumeration for the re-use, which is based on exceptions and limitations of the exclusive rights.
The common position differs widely with regard to the points critised by the EFJ from the legislative decision taken by European Parlament on February, 10th 1999. We hope that the European Parlament will decide on necessary admendsments to the Council Common Position for consideration in the European Paraliment in the interest of all authors.
With Kind Regards,
Benno Pöppelmann, Legal Advisor, Deutscher Journalisten Verband
Renate Schroeder on behalf of the EFJ Authors' Righst Expert Group.
