Position of the European Federation of Journalists on the Communication on the Management of Copyright and Related Rights

The European Federation of Journalists (EFJ) unites 48 trades unions in 33 countries representing over 250 000 journalists in Europe. We note with great interest the Communication from the Commission to the Council, the European Parliament and the European Economic and Social Committee on the Management of Copyright and Related Rights in the Internal Market.

It is widely agreed that the professional status of journalists everywhere is vital to the existence of free, inquiring media and hence of democracy – and that this professional status among other important factors depends on the legal status of journalists' authors' rights. This legal status is implemented in two basic ways: through the exercise and management of individual rights; and through collective rights management.

Whenever journalists manage their authors' rights individually, they confront the problem of their position as an economically weaker party seeking to negotiate a contract for use of their work with a publisher or broadcaster. Almost all journalists have to deal with publishers and broadcasters that are members of oligopolies in their area of coverage – that is, controlling the market for the journalist's work – and many deal with clients and employers that have monopoly positions. These monopolies or near-monopolies are therefore in a position to enforce their wishes, particularly their wish to determine the extent of usage or other rights that journalists grant them. Many insist, for example, on rights to use the works in all branches of a global company, and not limited by the coverage area of the medium and the purpose it was produced for. This has effects beyond the harm it does to the status of journalists: it impoverishes the notion of regionally or even nationally distinctive media.

The collective management of rights takes place through collective agreements or by collecting societies. These forms of rights management offer journalists a better chance to maintain their economic interests and moral rights in the use of their works, compared to individual rights management. Neither collective agreements by trade unions, nor the exercise of contracts by collecting societies, guarantee authors optimal rights management. But both of these collective methods, compared with purely individual rights management, are capable of strengthening journalists' bargaining power, and of enabling them better to participate economically in the use and re-use of their work.

The development of a legal framework for the management of rights in the internal market is thus of essential importance to journalists – as is, therefore, the Communication by the Commission.

The EFJ agrees with the Commission's observation that territorial borders for the exploitation of protected works in Europe are of diminishing importance. Publishing companies and broadcasters more and more often act internationally. They increasingly enter media markets outside their base nation and present themselves to investors as having a comprehensive "media supply". Technical developments are also reducing the importance of territorial restrictions – a photograph from the other end of the continent may be re-used in any medium as easily as one from the same office, though language differences continue to limit, to some extent, the re-use of journalists' texts.

Though the European Union has responded to these developments by harmonising certain aspects of authors' material rights, there are not yet Community-wide rules and conditions for rights management.

The EFJ would welcome harmonisation of the conditions of rights management in Europe if:

- individual and collective rights management are harmonised at the same time; and
- certain conditions are respected and fulfilled by the harmonised rules.

The EFJ does not share the view expressed in the Communication that harmonisation is required only in regard to collective management by collecting societies. It would be a mistake to regulate the legal framework for authors' rights in the European Union only from the perspective of the users of the works, whether these be consumers or media companies. To make rules for the internal market with the sole purpose of paving the way for media companies, without solving the problems that are caused by the lower protection of authors' rights in some Member States, would dramatically damage the economic interests and professional status of authors.

It is true that at present only a small number of journalists – mostly freelances – actively take part in trans-national trade in the exploitation of their rights. But all journalists have to tolerate media companies using their works outside their own member state. If the Commission plans to create Community-wide licenses – for example to cover online use (1.2.4 of the Communication) – then it cannot leave the question of which conditions and rules govern the contract between author and media company to national law. To do so would seriously exacerbate the inequality of negotiating power between the companies and the authors, not least because the companies would try to impose the law of the member state which offers the weakest standards to authors.

The EFJ believes that any harmonisation of rights management must clarify the question of the initial allocation of ownership of rights; and must make clear that they are authors' rights. This means that, community-wide; only the natural person who created the work – the author – can be the initial owner of authors' rights in a work.

The initial allocation of ownership of rights is the foundation of collective rights management, as well as of individual rights. No collective agreements on authors' financial participation in the use of the work beyond obligations in any contract of employment can be concluded where the law allocates rights to the media enterprise. Collective rights management by collecting societies can only strengthen journalism (and cultural production generally) by serving the economic and moral interests of authors if all authors have initial rights ownership.

The EFJ believes it is necessary to harmonise the legal regulation of the transfer of rights, of equitable remuneration and of the interpretation of authors' rights in individual rights management at the same time as implementing any Community-wide regulation of aspects of collective rights management.

The Communication leaves open the possibility of Community-wide licenses covering the right of communication to the public, or of making available, that include unknown forms of use (see 1.2.4). To harmonise only certain aspects of collective rights management would lead to a further fragmentation of law. It would leave individual rights management to follow different rules (under national laws – which in several member states forbid licensing of unknown uses) than those that would be applied to collective rights management (under an eventual EU directive). In both cases authors must be entitled to equitable remuneration for the use of their work.

The EFJ therefore cannot support the kind of limited harmonisation envisaged in the Communication. Any legal instrument that will only regulate certain aspects of collective rights management would be an incomplete job that would entail a great risk of weakening the position of authors. This is particularly important for two reasons:

a)Digital rights management (DRM) has become a key issue in discussions on the management of authors' rights and copyright. Therefore it seems clear that rules on DRM systems must be contained in the planned legal instrument. As the EFJ explained in its statement on the High Level Expert Group Report on Digital Rights Management: “The EFJ also fears that DRMs in the sole hands of publishers and producers will make it even more difficult for journalists to reach agreements that guarantee them equitable remuneration for the use of their works, and allow them to set up conditions for the further use of their work in order to uphold press ethics. It remains essential that the journalist is identified according to practice and that the material is not altered in a way that would infringe the integrity of the journalistic work or the journalist himself.”

b)The EFJ does not share the opinion expressed in the Communication that there is an urgent need for harmonisation of community-wide licensing. Reciprocal agreements do function and are constantly being developed to secure better interoperability. The EFJ also has the general impression that the collecting societies in the EU currently 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.

Irrespective of the above, the EFJ can support a set of rules of good governance if they respect existing and well functioning systems. The rules must not exclude existing and well functioning types of CMS or be contrary to national legislation on CMS that fulfil 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.

The EFJ is disturbed to find in the Communication so little mention of the cultural and social functions of the work of collecting societies. The EFJ refers in this respect to the statement of IFRRO, which we fully support.

The EFJ fears that, under the guise of regulating allegedly unfair administration by collecting societies, pressure will be applied to enforce Community-wide competition among collecting societies: if this were to happen it would ultimately disadvantage authors. Such a misconceived harmonisation would enable users of protected works – including the economically very powerful publishers and broadcasters – to acquire rights from the cheapest collecting society, leaving the economic interests of authors and the societal benefits from the well functioning existing systems to fall by the wayside.
Executive summary

1. The EFJ cannot support a Community-wide legal instrument that regulates only certain aspects of the collective rights management and accounting obligations for collecting societies. It would do more harm than good.
2.The EFJ does not share the opinion of the Commission that the present level of efficiency, transparency, control and accountability of the collecting societies in the EU does not meet the interests of all persons involved. However the EFJ will not oppose a common set of rules of good governance if these rules are kept at an overall level so as to not disturb the many different types of collective management societies who live up to the basic principles.

Brussels, 17th January 2005