19th February 2004
The International Federation of Journalist agrees that the European Commission and the European Parliament with the seven directives on various aspects of authors’ rights and neighboring rights have done much to secure a level playing field.
We are also acutely aware of the difficulties that are in the way of further harmonization regarding for example moral rights and in the field of contract law. We agree with the conclusions of the EU Commission conference in Santiago de Compostela in so far as the time must be right before further harmonization in these areas is initiated.
However, one of the things that may lead to this right time is a higher awareness of the importance of such harmonization and that it takes place at a high level. This awareness must of course be raised in each member state but it is also extremely important to do so in the political structures of the European Union.
It is a difficult climate to reach this goal in.
National governments are being lobbied by the media, communications and entertainment industry who are asking for the Anglo-American copyright system to be adopted. Authors and performers are under higher pressure than ever from buy-out practices that stem from copyright countries.
Competition law, competition authorities and competition thinkers appear to worry more about free-lances trying to bargain collectively and whether exclusive rights managed by collective manage-ment societies are a problem rather than worrying about the dominating positions of the constantly growing communications and media conglomerates and their practices towards the individual au-thors and performers.
From every country in Europe we hear the same message: Our freelances cannot stand up under the pressure and are being cut off from the right of collective bargaining from competition rules and unclear labor law regulation.
Employed journalists, photographers and others who produce content for the media during em-ployment are under double pressure. From the one side publishers and producers who are lobbying national parliaments for the Anglo-American work-for-hire principle and from the other side the threats of a high level of redundancy.
We may be able to hold the fort in the countries where legislation is at a high level of protection. But that is not enough. We need to raise the level of protection if we are to maintain the Continental European approach to authors’ rights.
One of the important pillars supporting authors’ rights is collective rights management societies. EU MP Mercedes Echerer has shown a great example of how words can be turned into action with the newly adopted report on this subject in the EU Parliament.
We very much hope that this initiative will lead to EU legislation that will support the well func-tioning collective management societies and help to mend the structures where this is needed. The report is well balanced and among many good points it states very rightly that Digital Rights Man-agement systems are instruments that may enable publishers and producers to manage rights on be-half of authors and performers if the authors agree but that these systems are just as important as instruments for collective rights management societies.
Let us take a look at the list of other outstanding problems that have a high priority:
· We urgently need for each member state to implement special contractual protection along the lines of the German Authors’ Rights Act to prevent far-reaching buy-outs and to safe-guard the right of a remuneration that is proportionate with the rights of use that have been licensed. Ideally this should be done at once through EU-harmonization.
· We need to address the problem of freelances being blocked by competition authorities when they attempt to act collectively whether in bargaining or in sending out guidelines. We must focus the attention of the competition authorities on the negative effects of media con-centration instead and raise awareness of the fact that public service media have a positive impact and should therefore not be unreasonably restrained by competition law.
· We must close the gap between the Anglo-American copyright system and the Continental European System of Authors’ Rights within Europe in a way that maintains the Continental system and a high level of protection. The major obstacles are:
1) The fact that authors in the UK and Ireland are allowed to waive their moral rights (and in great numbers are being pressured into doing so)
2) The fact that the works of journalists, photographers and others reporting current affairs are not protected by authors’ rights in the UK and Portugal whether or not they produce their work on a freelance basis or during employment.
3) The fact that employed authors in the UK, Ireland and the Netherlands are stripped of their rights of bargaining (also) when it comes to the rights of use outside the normal field of activities of the company in question.
Contractual freedom and the right of collective bargaining is the foundation for agreements between people and the companies they work for or deliver a service to. These rights are closely related to human rights and are fundamental in a democratic society.
Legislation regulating working conditions normally has the sole aim of protecting the wage earners and freelances who rightly are considered to be the weaker party and therefore - without these minimum standards - are likely to be pressured into accepting conditions that society is not prepared to accept.
However, in the field of authors’ rights – where legislation does regulate transfer of rights in em-ployment or in commissioned works – it tips the bargaining scales in favor of the publishers and producers in such a way that free bargaining becomes an illusion.
When an author enters into a contractual relationship with an employer the most valuable asset he or she brings into the working relationship is the ability to create intellectual or artistic works and the intellectual property rights that go with it. The same goes for those who work as freelances.
It is therefore very difficult to accept and let alone understand that it is taken for granted that an employee or commissioned freelance has full bargaining rights when it comes to working hours, pension plans etc., but in several EU member states is stripped of these rights when it comes to the extent that his or her rights are to be transferred for further- or secondary uses.
The extent to which authors’ rights are transferred for further use is not only of significant eco-nomic interest to the author, – it is also important for the author in order to be able to exert influ-ence on the way the material is allowed to be exploited by third parties.
The quality, authenticity and ethics of the European press, literature, films and culture depends largely on the individual creator. It is hard under any circumstances to stand up to the much stronger media and entertainment companies. One instrument that should be available for every author in Europe is Moral Rights that the author cannot be pressured into waiving. Another is to at least have free bargaining rights. Next step should be active minimum safeguards against unfair contracts.
The Anglo-American Copyright system does not match well with a modern democratic society and its presence in the midst of the EU is the cause of continuous turbulence in the great majority of EU countries where these rules do not apply. As long as this continues to be the reality the media con-tent industry will continue to push hard for EU harmonization at the UK level and EU will be weak-ened it its efforts to work for the right solution for globalization at the global level.