Double payment is the most consistent fear presented in opposition to the unwaivable remuneration right that would ensure screenwriters and directors are paid when their works are watched online.
The starting observation for the remuneration right is that current contractual practices are not balanced. Authors’ remuneration is not proportionate to the success of their works. The making available right, created by the 2001 Copyright Directive, has been added to production contracts as a transferred right but against no additional economic value to the author.
Any remuneration would therefore constitute a first payment, not a double payment.
Producers might still argue that they have already paid for the making available right because the contract provided for a certain remuneration. Any additional payment would therefore be a second payment for something that has already been paid.
This goes to the heart of the problem in the audiovisual sector and the definition of fair. There are two areas of unfairness in this sector: 1) contract negotiation and 2) contract enforcement.
Contract negotiation – authors sign contracts transferring their rights against remuneration before there is any certainty the work will be made as it is not financed yet. They are in no position to impose terms as there is no secured money. They hope the producer will be able to finance it and that they will at least be paid for the time and work they have invested in the project. This has resulted in the increasing practice of all rights included buyout contracts – a one off payment for everything, both the work and the rights. SAA maintains that fair pay is proportionate to the success of the work and should generate royalties for the use of the work. Buyout contracts make this impossible. The remuneration right creates balance by delaying the valuation of the IP rights to the exploitation stage where their value can more accurately be ascertained.
Contract enforcement – some authors have negotiated contracts with ongoing remuneration based on the success of the work. However long, complex value chains, under-resourced production companies chasing the next project and the continued weak position of the author (who might need to rely on the producer for another film in future) make enforcing the contract impossible. We are not talking about unexpected success. We are talking about success-based royalties that were written into the contract and that do not materialize.
An unwaivable remuneration right cannot include a derogation for individual contractual agreements. It is a corrective collective mechanism that should apply to all, taking into account the documented contractual practices and enforcement limits in the audiovisual sector. To claim for such a derogation would be to negate the need for the provision in the first place and deny that current practices are not balanced.
Which brings us round full circle. Are current practices unfair? Yes, whether you negotiate a good or a bad contract. Do we have a proven solution on the table to fix this? Yes.
Screenwriters and directors will be looking to the Culture committee to send a strong message to JURI when they vote their opinion.