Online only - updated 30/05/16

New laws on authors’ rights contracts proposed

SEVERAL EUROPEAN countries have new laws or proposals to deal with the issue of unfair contracts being imposed on creators. A new campaign in the UK is pressing for one here - see here.

In Germany, in March the government put forward a rather limited measure. In October 2015 the ministry of justice had published a draft law on the reform of copyright contract law. The main points of the draft included:

  • strengthening the rules on collective agreements that set minimum standards including minumum payments;
  • introducing a right for unions and associations to bring collective actions for violations of these agreements, in their own name;
  • improving a "right of recall" - similar to what in the US is called a "reversion right": authors would be able to end their publishing contracts after a certain period, if another publishing house wants the work for more money, but the original publisher can stop this by matching the amount; and
  • streamlining the arbitration procedure and make it binding.

In an example of the kind of effect that industry lobbying can have, the Cabinet diluted this proposal. It excluded, for example, journalists, scriptwriters and directors from the right to be informed once a year where their works are published. It deleted a provision that creators should get separate amounts for every separate exploitation of our work. The "reversion right" would apply only to authors who receive flat-rate payments (Pauschalvergütungen) - possibly excluding the majority of literary authors (who are instead paid royalties on sales of their works).

Screenwriter and producer Fred Breinersdorfer commented that this has been turned into "a law to curb creators' claim to equitable remuneration". The Initiative Urheberrecht - the campaign group uniting representatives of more than 140,000 creators, including both German journalists' unions, "appeals to the Ministries to rework the draft. It is necessary to postpone a decision in Cabinet" until a satisfactory text is found.

Meanwhile in France a draft law put on the Senate table on 1 March makes some improvements to the contract position of musicians (as "performers and producers of phonograms") and of contributors to films. [Update 30 May 2016: this version was passed by the Senate on 25 May: see below]

Several countries are looking at following the German model of charging search engines for use of small snippets and thumbnails, through a new right for the publishers. French legislators have an alternative, with a fee for thumbnail images distributed to photographers through a collecting society.

The Freelance is still trying to understand new laws that guarantee fair payment and provide for collective bargaining by freelances in the Netherlands. [see below]

30 May 2016

Not much changes in the Netherlands

I've spoken to a colleague from the Netherlands.

A law was indeed passed in 2015 that guarantees the right to fair payment. But it doesn't work. There is no mechanism to help the court decide what is "fair" in the Netherlands - unlike Germany, where the courts can refer to a collective agreement where there is one. And there's the usual problem that freelances are unwilling to go to court - not only because of the chunk it takes out of your life, but because of the fear that they'd never work again if all publishers knew that they'd sued one of their number.

And in May 2016 a separate law took effect, encouraging model contracts for all freelance workers. Under this the tax authorities get to review freelance contracts. One effect is that people who have been forced into faking freelance status have a better chance of gaining workers' or full employment rights. Oh, and they get to make tax and social security payments up front. Not least of the causes of the change was the Post Office firing all its employees, re-engaging them as self-employed delivery people, and losing in court. The prospects for using this development to improve the content of freelances' contracts seem slim.

30 May 2016

France fragments

On a quick reading of the law passed in the French Senate on 25 May (and recognising that a quick reading of legal French is not always an excellent idea):

  • Contracts to use musical performers' recorded work ("phonograms" in the jargon) must specify all the uses that are covered. They cannot cover uses that were not enviseaged at the time of the contract - granting a protection that all authors and performers have long had in Germany.
  • There is provision for auditing and transparent accounting of revenue from films ("audiovisual works") including documentary but not réportage.
  • Search engines and the like that display images, including images of sculptures etc will have to pay a licence fee to a collecting society for distribution to photographers, artists etc.
  • Press agencies (but not, as far as I currently understand it, photographers working for them) will gain a similar right to remuneration.

So it seems that French legislators are taking different approaches to the question of unfair contracts for different classes of creator .

The Bill now goes to a Commission mixte paritaire - a joint committee of the two houses of the French parliament. This seems to mean that the Senate and the Assemblée Nationale are divided on the Bill.

Last modified: 31 May 2016; first posted 02 May - © 2016 contributors
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