Creators’ contracts don’t work but let’s rely on them anyway
SAA has been promoting the idea of an unwaivable remuneration right for the last two years. Performers organisations have also called for a similar right. Our analysis, put simply, is that while it would obviously be better to strengthen the negotiating position of screenwriters and directors by introducing standard contracts or changing contract law, the reality is that this is unlikely to happen at EU level. Antonio Vitorino recognised this issue in his recommendations on private copying levies:
“I was, however, also made aware of the fact that authors and performers often transfer their exclusive rights in a work or other protected subject matter to the producer or the publisher.
Some stakeholders claim that if such a work or other protected subject matter is then licensed to e.g. a service provider, authors and performers do not get a share of the licence fee, and need to be satisfied with the payment they received for the initial transfer of their rights.”
“I understand that such authors and performers sometimes suffer from a lack of bargaining power.”
Remuneration for private copying is one form of payment that is taken out of the contractual agreement. It is collected and split between producers, performers and authors. However, Mr Vitorino continued:
“I do not think, however, that private copying levies are the right way to address this imbalance.”
So what is the solution?
“Mandatory rules in copyright contract law or labour law would, in my view, be a better manner to ensure that authors and performers receive an adequate share when their works and other protected subject matter are exploited. Another option would be to help them to organise themselves better in order to conduct negotiations more successfully.”
Are these recommendations to be taken on board by the Commission? We would certainly hope so. Unfortunately Mr Vitorino closed with:
“The principle of subsidiarity, however, should be given specific consideration when examining this issue at EU level.”
Which I understand as “no EU-level action will be possible and this needs to be treated at national level.”
His recommendations for the private copying system are tantamount to getting rid of the system. He recognises that this will further weaken authors and performers and suggests that any remedial action will not be possible at EU level. Getting rid of the private copying system will take away from the weakest link in the chain with no encouragement of any alternative action to counteract these effects.