Brussels, 16th December 2011
To Members of the Greens/ EFA group of the European Parliament
The European Federation of Journalists (EFJ) represents journalists' unions and associations across Europe.
We defend press freedom and social justice through strong, free and independent trade unions of journalists. We also call for journalists to be recognised as authors of the works they create to be able to control further use of their works and negotiate equitable remuneration for these uses.
We would like to raise our comments and concerns over the statement on Creation and Copyright in the Digital Era adopted by the Greens on 28th September 2011.
This paper rightly points at the effects new technologies have on the production, dissemination, access and use of cultural productions and at the role policy makers should play in providing "a proper regulation framework for artists and creators" to ensure them "a better recognition and remuneration for their work".
The statement accurately acknowledges that consumers and artists should not be in conflict with one another. Clearly, both can benefit from each other. In fact every consumer needs intellectual property protection, since new technologies allow anyone to become a "published" or "broadcast" creator online, whether of words, images or sound. Consequently all creators/authors - whether occasional or full-time - need the right to be credited as creators/authors, to oppose any modification of their work and to receive equitable remuneration for the use made of the creation.
We strongly welcome the Greens' call to improve the situation of artists and creators and to change contract law at European level in order to stop buy-out contracts.
We believe that this step is essential to put creators in a better negotiating position when facing their employers and clients. Too many journalists find themselves in a very weak position when it comes to negotiating contracts and authors' rights remuneration - when there is any negotiation - not to mention the abusive use of "oral contracts". We believe in particular that collective agreements negotiated by unions and media owners need to be reinforced in all media sectors and allow for journalists working as freelancers to be covered.
The statement also raises a number of concerns that could have damaging effect on journalists and creators as a whole.
1. Authors' rights and copyright are two different regimes
The current text mixes the authors' right system - which recognizes rights to an individual that remain with this individual- with the copyright system based on a property right that is fully tradable. Journalists should benefit from an authors' right system which consists of moral rights and a number of exclusive rights that give him/her sole power to authorize use of his/her works and enter into agreements on payment, royalty and precautionary conditions for various uses of the work.
2. Moral rights should be reinforced
Moral rights are personal rights vested in the author and cannot be waived. Journalists have the right to be identified and to oppose any distortion, mutilation or other alteration of their work which could affect their honor or reputation.
We believe that the definition of authors' rights provided in the statement is misleading when describing moral rights. In fact giving the author the opportunity to "comment" on the use that has been made of his/her work is different from them either authorising modifications prior to this use, or having the right to object to - to take legal action over unauthorised modifications that are contrary to the author's "honour or reputation".
The right to use extracts and quotations - accurately and with proper credit - is at least as essential to journalists as any other citizen; but the moral rights must be respected for all uses, quotation or in full.
3. No distinction should be made between commercial and non-commercial uses of copyright material
We don't believe that copyright should only regulate "copying for commercial purposes". For a journalist, the simple act of reproducing his/her work on a third party's web site without his/her authorisation can lead to a lack of revenue for him/her. Indeed, many freelance journalists work on the basis of syndication. This means that they can re-sell their work to several publishers and get paid for it. Reproducing an article for free on any web site reduces opportunities for journalists to re-sell their work.
Additionally, many of the major peer-to-peer sharing sites are commercial, selling ads and making profit without remuneration for artists.
4. Copyright is necessary to journalists' income
Copyright does not "only represent a small part of income" for a majority of artists and creators. Copyright (authors' rights) is in one sense the "foundation" of all their income.
In the journalistic field, we face situations where some of journalists' income is covered by authors' rights revenues and some by their salary. Additionally, journalists may receive yearly remuneration for reprography (photocopying), private copy, cable distribution and so on of over €900.
5. No formality required to enjoy authors' rights protection
The Berne Convention clearly states that "the enjoyment and the exercise of these rights shall not be subject to any formality".
Journalists, whether they are freelance or employed, can produce up to four stories a day; photographers, hundreds of images. Requiring them to register their work in order to benefit from intellectual property protection would be practically impossible and would impose impossible administrative burdens.
The need for identification systems to allow authors to be recognised as creators of their work should be seen as a priority. The "orphan work" debate has so far failed to address the necessity to all creators of enforceable moral rights to avoid orphan works in the future. Subjecting the commercial use of a work to a compulsory registration within 5 years after the production would contradict the fundamentals of authors' rights protection, in which authors' rights protection is vested in the author from the first day of the creation of the work.
6. Collective management systems in Europe support creators
We do not agree that collecting and redistribution systems are "problematic and unfair in most countries to a majority of creators". While their functioning might be improved by more transparency, more open governance and extended mandates in some countries, the collecting and distribution systems function well in others where journalists are represented in these bodies' boards. They allow them to receive remuneration for secondary uses (such as reprography, cable distribution and private copying) - and sometimes for primary uses, when a collecting society has been specifically mandated for that purpose. Their role in the management of online uses of journalistic work is key if journalistic works are to be made available to the widest public as it is practically impossible for an individual journalist to manage secondary uses of his/her work online.
We also believe that extended collective licensing managed by duly representatives CMOs offers a good solution to the digitisation of orphan works.
7. Remuneration for private copying must be strengthened
Directive 2001/29/EC acknowledges authors' and performers' exclusive right to authorise or prohibit the reproduction of their works. The Directive however authorises member states to provide exception to this rule with regards to reproduction made for private use for ends that are not commercial and on condition that the author receives fair compensation for these uses.
We do not believe that the introduction of a "content flat rate" would solve the problem of unauthorised peer-to-peer copying. The introduction of an "online subscription fee" would go against the right for authors to authorise or prohibit the reproduction of their work and decide on the use that can be made of their works. For example, it is fundamental to codes of journalistic ethics that neither advertisers nor political parties should be able to use journalists' work without permission. Additionally, a content flat rate would not differentiate between heavy and light downloaders of content.
Lastly, it is worth noting that many of the major peer-to-peer sharing sites are commercial, selling ads and making huge profits while not paying anything for the content being used.
8. The term of copyright protection should not be reduced
Directive 93/98/EEC sets the term of protection of authors' rights to last 70 years after the death of the author, and 70 years after the first publication for anonymous works and those published under pseudonyms. Journalists are authors of their work and are allowed, as well as their heirs, to decide on future uses of their works. A seventy-year term of protection stimulates creation, respects the author's moral right and allows for remuneration when the work is used again. We do not believe that a patent-like term of protection would meet the same objectives as authors' rights does, that is maintaining a personal link between the author and his/her creation.
We thank you for your attention and look forward to discussing our concerns further with members of the Greens in the future