Making contracts fair

AS YOU MAY have heard, the European Union's civil service, the Commission, is considering changes to the law on authors' rights - the UK incarnation of which is the copyright that you have in your work. We expect proposals in November.

In April I was one of a delegation from the European Federation of Journalists - of which the NUJ is a member - to meet EU Commissioner Günther Oettinger. The Commissioner opened by explaining that he was committed to a sustainable economic environment for journalists and other creators. He understood the arguments over authors' rights as a three-way battle between creators (authors and performers); intermediaries (publishers and broadcasters) and "users".

That was refreshing: some in the Commission, like almost all journalists, insist that every battle must be between precisely two armies.

Günther Oettinger's position, as stated to us, was at least as strong as that of his predecessor Michel Barnier, who was and is widely vilified by anti-copyright forces for "blocking" their ambitions.

We raised two main issues. Firstly, the need to rein in demands for more "exceptions" to authors' rights - the rules that say when someone can use your work without asking, or paying. We gave examples of how important income from copying is, including a quote from an NUJ member about their £1000 from the collecting society ALCS, mostly for use of their work in education, making the difference between solvency and its opposite.

Secondly but primarily, we spoke of the need for regulation of the contracts under which authors and performers, including journalists, work. The Commission would be wasting its time, we said, if it puts more effort into amending the law for "rightsholders" but still does not address this question of contracts.

For example, we understand that when in 2001 it introduced a new right for authors to licence the right of "making available", the idea was that it would guarantee authors income from the then-new online exploitation of our work - and thus fulfil the purpose of authors' rights law in ensuring the supply of high-quality new work. But there is such an imbalance of power in contract-making that we know of no cases in which journalists have been able to negotiate extra pay for exploitation of this right. So the most important things we seek are collective bargaining of minimum standards for the contracts under which authors, including journalists, work; and the right for trades unions themselves to bring cases to court, rather than forcing individual freelances to stick our heads above the parapet.

Publishers and broadcasters are currently opposing any move to deal with the unfair contracts they oppose. That's an expected knee-jerk; all management opposes any move to regulate it, from the 1833 Factory Act or before. Publishing managements, however, have always depend on the political argument that creators must be able to make a living to defend their business model - from legal arguments over the 1710 Statute of Anne, at least.

In late September, Günther Oettinger told us, there will be a massive consultation event on the Commission's draft proposals. They are due to be published in November; but he indicated that he'd hold them longer if that offered an opportunity to get them right.

There are, however, signs of an odd realignment. Julia Reda is now the only Pirate Party member of the European Parliament - instinctively opposed to large companies' use of copyright. She got the job of writing a report for the Parliament on changes to authors' rights (and copyright) law. The Legal Committee of the Parliament was due to vote on a draft on 16 June. Julia Reda is frustrated about the level of lobbying against "exceptions" to authors' rights. She set up a website at to complain: and one of the dozen points she invites supporters to root for is to "Protect authors from unfair contracts". Specifically: "Artists don't have lawyers. Publishers and labels have armies of them. Guess who has the upper hand in contract negotiations? Protect artists from expoitative total buy-out contracts Europe-wide and allow them to take back their rights if unused."

It's going to be a hard slog, but it's getting interesting. London Freelance Branch is holding a meeting to discuss this in Parliament on 13 July - see here.

Last modified: 23 Jun 2015 - © 2015 contributors
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