Far be it from us to think the European Commission doesn’t want anyone to read its study on the remuneration of authors and performers in the audiovisual and music sectors, but we’re a bit concerned some of you may have missed that late Friday afternoon publication towards the end of July. As an organisation that has been highlighting the poor situation of screenwriters and directors, this is a study we have been eagerly awaiting. So, what does it say?
The study finds clear problems that prevent authors from enjoying the full benefit of the exclusive rights conferred upon them by numerous European Directives.
The key finding is that transparency is a problem which is having an impact on the internal market. This means the European Commission can look into issues such as contractual negotiations which are usually considered sovereign to the countries in the EU. The study puts forward 2 proposals to tackle this. The first is clear contracts that identify which rights (e.g. making available, rental) are being transferred for which means of exploitation (e.g. cinema, rental, VOD) and the level of remuneration for each right and exploitation method. Precedents for laws that provide for transparency exists in both the Netherlands and France. The second is to ensure that this transparency applies cross-border and that authors and performers can understand different national systems (although it’s doubtful that knowledge of the best legal jurisdiction would see authors moving to countries where they don’t speak the language or have contacts with people in the industry are what will guarantee them work…). The next 2 proposals focus on strengthening authors and performers both individually (by limiting the scope for transferring rights for future works and exploitation methods) and collectively so that they can negotiate collectively and rectify their weak negotiating position. This means making it possible for authors to get a good, transparent deal and not be tied into long, unfair contracts. Finally, and significantly for us, the study identifies SAA’s proposal for a collectively managed unwaivable right to remuneration as a solution to the issue of authors’ remuneration. We believe that this is the only way authors will be able to be transparently and effectively remunerated for the multiple online exploitations that will develop in the coming years. Any complaints?
A few. Unfortunately the study was not able to obtain exploitable statistics for the remuneration of screenwriters and directors in the 10 countries examined. The authors of the study recognise the poor quality of their economic survey and therefore did not take it into account in their recommendations. There are surely many reasons behind this failure (as well as the number one key finding - the situation just isn’t transparent, including for the authors themselves) but it has deprived us of the opportunity to demonstrate once and for all the poor remuneration situation of screenwriters and directors. The legal analysis for the different countries (the main input to the debate as the economic survey was not exploitable) is presented in a confused way, giving anecdotal examples of the impact of particular national conditions on, say, music performers or screenwriters, without presenting a complete consistent image of the legal framework of the 10 countries. On top of that, the published audiovisual sector analysis seems to be heavily based upon documents dating from 2011 or older, despite the European Audiovisual Observatory publishing high quality yearly statistics. Some of the analysis is based on a 2001 document from the European Investment Bank. Given the rate of change of the audiovisual sector, these sources cannot give a fair representation of the current state of Europe’s audiovisual sector. Finally, the policy proposals fail to offer the dual approach that SAA believes necessary to resolve the challenges faced by screenwriters and directors. We need to focus on both the contract negotiation stage and enforcement at the exploitation stage in parallel. To focus on one, won’t solve the problem of the other. The first proposal is a clear element that has precedent in different European countries. The others should not be considered as ‘either/or’ options, or implemented one after the other to see which one works. Authors need better contracts at the production stage and fair remuneration at the exploitation stage. This new study has brought forward additional proof that action is needed. A legislative proposal from the Commission is the next step. JT