Creators' Rights Alliance - Between a rock and a hard place - A: The abuses
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Why the abuses occur: the legal and business framework

Although many of the abuses outlined in the previous section could be prevented under the copyright laws of other countries, as the UK law currently stands, most of these abuses are not illegal, let alone criminal.

It is not the case that UK law fails to provide rights to authors, journalists, photographers, musicians, composers, directors and other creators: on the contrary, the Copyright, Designs and Patents Act 1988 (CDPA) confers copyright protection on (inter alia) literary, dramatic, musical and artistic works; films and sound recordings.[1] Except in the case of employees,[2] the copyright vests in the AUTHOR of the work (and it does so automatically, as soon as the work is created and recorded, in writing or otherwise). In principle, such copyright should provide the author with the legal means to secure a reasonable remuneration, by giving the author the power to permit others (that is, to license exploiters) to reproduce and sell, or publicly show or broadcast, the work. The problem lies in the fact that UK law treats copyright like any other property (such as a table or a house) and allows it to be sold. That is, copyright can be transferred outright, for all time, by way of a so-called  “assignment”. Such an assignment can relate to the whole copyright or a part of it, and will be treated as valid as long as the transaction is made in writing. (In some cases, the courts even imply assignments, so no written agreement is required).[3]

Because UK copyright is transferable like any other property, authors are vulnerable to the effects of the market. English law does not, in general, permit courts to re-open transaction because they are unfair.[4] Rather, “contracts entered into freely and voluntarily shall be held sacred.”[5] For freelancers, this has often meant that they are bound by individual contracts imposed on them by publishers, broadcasting organizations and other entrepreneurs whose businesses have been created expressly for the exploitation of works and who usually have the benefit of legal opinion. Dealings between creators and exploiters rarely take place on the “level playing field” of equivalent market power which the legal principle of freedom of contract presupposes.

Because of the disparity in market power, the exploiters typically take whatever rights they can get, not what they need (to make a profit). They sometimes take rights that they do not need for immediate exploitation of the work, in case they may in fact need them in the future, but more often in the hope that they will gain some unintended benefit (e.g. that old works will start to be re-used and they, rather than the creator, will gain the financial benefit). The legal advice is ‘You have the power. Take everything you can. Collect up the rights. Hoard them. Then if something happens, you will get the windfall.’ As a leading European legal commentator has observed:

“[W]e see the total transfer of rights becoming standard business practice, not out of necessity, not to facilitate enforcement, not for logistic purposes, not for reasons of efficiency or legal security, but as a symptom of existential insecurity, because publishers have no idea what the future has in store for them, and for the works created by ‘their’ authors …”[6]

Consequently exploiters tend to:

  • Use “standard” forms; (the forms are not “standard” in the sense of hammered out through negotiation with creators’ organizations, but rather in the sense of “the exploiter’s usual unilaterally imposed non-negotiable set of terms”);[7] 
  • Use forms that require authors to transfer their rights, often on a perpetual basis, for a one-off payment. For example, freelancers have found that some newspaper publishers demand that they convey and assign all rights to the newspapers (on a world wide basis, and in perpetuity).[8][9][10] Similar contracts are issued by BBC Worldwide and other publishers to photographers, and by the BBC and the Producers Alliance for Cinema and Television (PACT) to composers for television,[11] as well as directors;[12]
  • Employ opaque language so as to disguise the effect of the transfer. A common instance of such practice in the newspaper industry involves describing an agreement as a “licence” when its legal effect is, to all intents and purposes, to confer complete control of the work, as regards all uses for all time and in all places, on the ‘licensee’;
  • Create “white lists” of creators who will sign contracts that comply with their contractual demands, and only use (or in some cases just prefer) creators from such lists. For example, there is evidence that a number of broadcasters have created such lists of composers who will assign publishing rights to broadcasters (and their associate companies) rather than confine assignments to the synchronization right needed by the broadcaster.[13] What is more, although the broadcasters denied the practice, during the Directors’ Rights campaign in 2000 there were publicly documented examples of blacklisting,[14] and there is evidence of blacklisting of some photographers, by newspapers and publishing organizations;[15]
  • Claim that, even in the absence of such agreements, they are entitled to all the rights in the work (for example, on the basis of customary practice);[16]
  • Demand retrospective grant of rights (typically without offering additional remuneration);[17]
  • Impose contractual terms after the work has been delivered, for example, by making the signing of an assignment a condition of being paid for work supplied (even where no such agreement existed in advance).[18] These demands are accompanied by threats, either not to pay the author for the contribution,[19] or that future contributions will not be considered for publication;[20]
  • Demand that creators agree to assign rights before undertaking to put the creators forward for consideration by a commissioning producer;[21]
  • Include warranties and indemnities clauses that expose them, potentially, to unlimited liability.[22] Sometimes the demands cover not just rights in the work as submitted, but rights over notes, preparatory material, and even access to the journalist’s computer.

These broad and extortionate contracts are usually treated as valid under UK law because of its basic principle: that a contract freely entered into by an adult is binding (and a contract is “freely” entered unless there is some undue influence or duress). The court will not re-open the contract merely because the court thinks the terms unreasonable or unfair. Nor will the court re-open the contract because it has been made between a huge corporation, such as IPC or the BBC (a corporation whose income from the license fee is almost £3 billion), legally advised, and an individual freelance creator who is desperate to obtain sufficient work to make a living. UK law does not recognize any doctrine of “inequality of bargaining power.”

 

Moral Rights

In addition to the “copyright” (which as we have seen is usually transferred), British law also provides creators of certain works moral rights. The term ‘moral rights’ is derived from the French droit moral, and refers to rights which protect an author’s spiritual, non-pecuniary or non-economic interests in their works (such as the right not to have it unjustifiably modified by third parties). Such rights have been included in the provisions of the leading international convention on copyright, The Berne Convention, since its revision in 1928. However, it was only from August 1989 that UK copyright law granted authors not just economic rights but also moral rights.[23] The 1988 Act provides authors and directors with: 

  •  The right to be named when a work is copied or communicated (the right of attribution);[24]

and also,

  • The right to control the form of the work (the right of integrity). [25] 

These rights cannot be transferred and, in principle, remain with the author or director, even after assignment of the copyright.[26][27] However, according to UK law, these rights can be “waived”, as long as this is “by an instrument in writing signed by the person giving up the right”. This means that authors can “agree” not to enforce them, either in general, or in relation to specific actions, and even in relation to future works.[28] Such waivers are even presumed to extend to the licensees or assignees of the person to whom they are made.[29]

 In practice, the effect of the waiver facility is that “moral rights” do in fact tend to be waived by authors, composers, photographers and directors, when they assign their rights.[30] The 1988 Act may have given creators moral rights, but the waiver provision means that in nearly all cases the creator is forced to give them up.[31] As a leading commentary remarked in 1989, “the existence of a power to waive moral rights calls into question the effectiveness of the entire code of moral rights”.[32] In contrast, it is worth noting that in book publishing such waivers are much less common. In these cases, publishers have not felt waivers to be necessary, and have recognized the legitimate interests of authors. This fact may prompt objective observers to question whether general waivers are, in fact, ever justified.



[1] CDPA s. 1.

[2] CDPA s. 11(2).

[3] CDPA s.1, s.90(1). For implied assignments, see e.g. Warner v. Gestetner, Ltd. & Newell & Sorrell Design Ltd [1988] EIPR D-89 (Warner was commissioned to draw cats which Gestetner was to use in promoting products at a trade fair. When Gestetner used the cats in their promotional literature, Warner claimed that his copyright had been infringed. Mr Justice Whitford held that it was an implied term of their oral agreement that Gestetner was equitable or beneficial owner of the copyright and, as such, that Gestetner had not infringed.)

[4] Scottish law is distinct and the details are not considered here.

[5] Printing and Numerical Registering Co. v Simpson (1875) LR 19 Eq 465 (Sir George Jessel MR).

[6] B. Hugenholtz, ‘The Great Copyright Robbery: Rights Allocation in a Digital Environment’ (paper presented at Conference, A Free Information Ecology in a Digital Environment, NYU Law School, 31 March-2  April 2000.

[7] Such as the two PACT model contracts with composers and the PACT model contracts with Directors.

[8] battling for copyright, p.2; A. Schelin, ‘Intervention’ at EC Strasbourg conference on Management and Legitimate Use of Intellectual Property, (9-11 July 2000), p.87 (online at www.europa.eu.int/comm/internal_market/en/intprop/news/strasbourg2_en.pdf)

[9] Ibid, p.17.

[10] On practice as regards photographs, see AoP, Whose Copyright Is It Anyway?

[11] PACT Model Contracts 1999 Edition – Composer’s Publishing rights letter of engagement (on file at CRA), clause 10.1 ‘You will promptly upon our request assign to a music publishing company designated by us (subject to the Synchronisation Licence) the entire copyright … in the Music throughout the universe for the full period of copyright and all renewals, revivals, reversions and extensions thereof …’

[12] For example, “… Director hereby assigns to Company absolutely: (a) the entire copyright (including without limitation any rental and lending rights and cable re-transmission rights) throughout the universe for the full period of copyright and all renewals, revivals, reversions and extensions thereof (and thereafter, in so far as Director is able, in perpetuity) … and (b) all other rights in all products of Director’s services hereunder, including without limitation, all literary, dramatic, artistic and musical material contributed by director to the Programme ….”

[13] Evidence of Alex Pascal OBE, journalist and performer, on Creators Have Rights; Evidence of Guy Mitchelmore to the Creators Rights Alliance Conference, South Bank, London, 14 March 2001; A. Schelin, ‘Intervention’ at EC Strasbourg conference on Management and Legitimate Use of Copyright, (9-11 July 2000).

[14] V. Thorpe, ‘TV Soaps at Risk as Directors make Drama out of Pay Row’, The Observer, July 30, 2000.

[15] On file with NUJ.

[16] Evidence on file with CRA/NUJ. In Robin Ray v Classic FM [1998] FSR 622 an expert in music was engaged by a radio station to catalogue its musical recordings, the terms of his consultancy being silent as to copyright. The radio station claimed it was the copyright owner.  The court rejected this claim holding only that Ray had granted an implied licence to the radio station to do certain things with the catalogues. In other circumstances, this sort of argument has been accepted.

[17] For example, EMAP Active’s “Standard Commissioning Terms and Conditions” (for photographers) contract cl 5 “You assign to us exclusively throughout the universe the entire present and future copyright and all other right, title and interest of any nature … in and to: (a) the commissioned work and (b) all other products of your services under this agreement, as well as any previous or future works written wholly or partly by you for us …” (on file with CRA). The Independent has claimed in letters to freelancers that the “all rights” terms “have applied to all material you have supplied … and you should note that all material from freelance contributors will continue to be accepted on these terms only” (on file with CRA/NUJ).

[18] Evidence of Joyce MacMillan to the Creators Rights Alliance Conference, South Bank, London, 14 March 2001. For consideration of the legality of these tactics, see Section C, Economic duress. In order for an assignment at law to be valid, it must be in writing and signed by or on behalf of the assignor. It has been held that sufficient writing might be provided by an invoice or receipt: Savoury v World of Golf [1914] 2 Ch 566.

[19] Battling for copyright p.30.

[20] Ibid, p.2, 12, 21; David Ferguson, on Creators Have Rights (explaining threat from Los Angeles lawyer when negotiating Bravo Two Zero that he would never be given work in the industry again).

[21] There is evidence that BBC Music has in the past pressured composers into agreeing to assign publishing rights before they can confidently tender for business with commissioning producers elsewhere in the organization. However, the recent Code of Practice with the MU hopefully indicates that such practices will no longer occur. Directors have previously been concerned about similar issues in the past in relation to S4C’s Letter of Inducement by which S4C attempted to persuade its independent producers to obtain written agreements from their directors beforehand assigning their ‘right in future works’ and ‘moral rights’ to the broadcaster in order to induce the broadcaster to grant a commission to the independent producer. It seemed that any director who refused to comply with this request could not be engaged by the producer.

[22] For example, a PACT standard contract with directors states: “Director will indemnify and keep Company fully and effectively indemnified against all actions, costs, losses, claims and expenses of whatsoever kind or nature arising from any breach or non-performance of any of the warranties, representations, undertakings or obligations on Director’s part contained in this agreement.” (On file with DGGB)

[23] For commentary, see L. Bently & B. Sherman, Intellectual Property Law (Oxford: OUP, 2001) ch.10.

[24] CDPA s. 77.

[25] CDPA s. 80.

[26] CDPA s 94 (The moral rights conferred by Chapter IV are not assignable).

[27] CDPA s. 87(2).

[28] CDPA s 87(3).

[29] CDPA s 87(3).

[30] Amongst the numerous examples on file with the CRA: PACT Model Contracts – Conditions of Engagement for Composers (publishing rights) 1999 Edition cl.4.4 “composer recognizes company has the unlimited right to edit, alter, add to, take from, adapt and/or arrange the Music and the Programme and, with regard thereto and to the Programme, hereby irrevocably and unconditionally waives … the benefits of any provision of law known as “moral rights” (including without limitation any rights of Composer under Sections 77 to 85 inclusive of the CDPA) or any similar laws of any jurisdiction.” (on file at CRA); (directors’s contract in similar form); contracts between David Ferguson and  Scottish TV as well as Carlton TV (2001); EMAP Active’s “Standard Commissioning Terms and Conditions”(for photographers) contract cl 7 (“You waive unconditionally, irrevocable [sic] and permanently the benefit of any moral rights in the Work, including similar or equivalent rights in any part of the world …”; BBC Terms of Trade for Engagement of Freelances (photography) clause 20; BBC Worldwide Ltd Standard Terms of Business Governing the Commission of Photography cl  4.1.2.

[31]  In some cases creators have good enough legal advice and strong enough bargaining power to resist a waiver. Paradoxically, these are the very creators who need the statutory moral rights provisions the least, since they could bargain for equivalent protection of their moral and spiritual interests to be included in the express terms of their contracts.

[32] G. Dworkin & R. Taylor, Blackstone’s Guide to the CDPA 1988 (London: Blackstone, 1989), p. 101.

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