The complexity of "fair"

One of the overriding themes of the Copyright Directive proposal was to re-balance negotiations. The key word was “fair”. The Commission used this justification for its press publishers’ right, the value gap proposal and the transparency triangle.

Now most European Parliament committees are in the middle of compromise amendment negotiations the complexity of finding a “fair” solution is laid bare.

There seems to be recognition that authors deserve fair pay for the use of theirs works. All groups are happy to put this in writing. Sounds good but legislation needs to clarify how that is supposed to happen.

We believe that for a solution to be “fair” it requires 1) defining what we mean by fair, 2) protecting from contractual abuse, 3) clarifying who should pay and 4) how it should be enforced.

For audiovisual authors:

  1. Fair remuneration is proportionate to exploitation (if your film is watched a lot then you should be paid more than if your film is watched a little).
  2. If you are not in a position to hold on to your exclusive rights (which is unfortunately the case of many) then you must be protected from being coerced into being deprived of the economic link to your work.
  3. The person who actually shows the work to the audience is liable to pay.
  4. The royalties are negotiated and collected on a collective basis.

See our flyer for more detail about what this means for audiovisual authors.

No-one opposes fair remuneration of course, but now that the SAA’s proposal for an unwaivable remuneration right is on the table and supported by many MEPs, opponents are pulling in every direction and do not hesitate to use fake information.

To claim, therefore, that authors who already have clauses in their contracts providing them with remuneration in respect of exploitation should not benefit from this right to inalienable remuneration is one of these small manipulations. Today there are many abuses to the detriment of creators and many examples of authors who think they have good contracts to discover that their very successful film will never return any remuneration to them. See Roger Michell (Notting Hill) and Harry Shearer (This Is Spinal Tap) as exhibits 1 and 2. Should we be satisfied with this situation and let contractual “freedom” deprive authors of their right to remuneration?

Unfortunately, this is what will happen if we accept the reintroduction of a contractual abuse derogation which will undermine the whole provision. We ask the Parliament rapporteurs to recognize that a fair solution protects creators from the “contractual freedom” that currently deprives them of ongoing remuneration for their work.