Creators' Rights Alliance - Between a rock and a hard place - C: Action short of legislation
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Resisting business pressure

As far as possible[1], creators should refuse to sign agreements assigning their rights or waiving their moral rights. Instead, they should attempt to negotiate to reach a satisfactory agreement. Key precepts should be:

  • to transfer only the minimum rights that the exploiter needs;
  • to do this by way of a licence NOT an assignment;
  • if possible, to make this a non-exclusive licence;
  • to refrain from transferring “the copyright”, and instead, to specify exactly what uses the creator authorizes the exploiter to carry out, where, and for how long;
  • to assert the moral right of attribution;
  • to refrain from waiving moral rights. 

We include some examples of relatively good contracts in Appendix 1.

Resistance can be enhanced through creating networks and sharing information. Information about the success of other authors in negotiating deals or resisting “standard forms”, as well as about rates (e.g. for syndication or electronic uses),[2] will assist individual authors in negotiating later deals. These kinds of activities redress the asymmetry that exists between an entrepreneur, who has negotiated hundreds of deals, and an individual freelancer negotiating for the first time. A useful precedent in this regard is the Association of Photographers (AoP) publication entitled “Whose Copyright Is It Anyway?”, a guide to the good and the bad in the world of editorial commissioning of photographs. The booklet, which the AoP aims to publish annually,[3] is compiled from responses to questions sent from the AoP to its members and to publishers. It explains how much various publications pay, and what they claim they pay: thereby enabling photographers to decide whether it is worth negotiating and what they could potentially gain in remuneration. The booklet importantly also explains the copyright practices of the various publishers. Other representative organizations, to some extent, provide similar information: for example, there is a considerable amount of information of use to freelance journalists on the NUJ website, and the Directors Guild of Great Britain (DGGB) produces “rates cards”, detailing actual rates of pay based on surveys of its members.

Better contracts are also more likely to be achieved where creators have access to the benefit of legal advice, and the cheaper and more accessible sources of such legal advice are for creators, the better.[4] An example of such advice provision is the Musicians’ Union’s (MU’s) Contract Advisory Service, which is provided free to its members and is well used. Under the service, the MU’s lawyers will point out problems and pitfalls of contracts but will not enter into negotiation. A similar service is offered by the British Academy of Composers and Songwriters (BAC&S) to its members. The DGGB and the Broadcasting, Entertainment, Cinematography and Theatre Union (BECTU) provide some advice of a similar sort to their members, as do the NUJ and the Society of Authors.

More effective resistance still may be achieved by collective action.[5] Authors’ organizations can (and do)[6] play a critical role in negotiating standard contractual arrangements,[7] although British broadcasters steadfastly refuse to contemplate standard contracts for directors. Jim Dowd MP, speaking on behalf of the UK Government to the CRA conference in March 2001, stated that

“[g]roups of rights holders can, of course, act collectively to strengthen their negotiating positions and the CRA has an important role to play here.”

Recent examples of such negotiations in the UK include those between the NUJ and the New Statesman concerning payments for sale of electronically archived material to users, although these negotiations have not yet reached final agreement.[8] Similarly, the DGGB, BECTU and the collecting society Directors' and Producers' Rights Society (DPRS) achieved some success after the so-called "Directors’ Rights Campaign" of June 2000-July 2001, through obtaining block payments of £6 million over five years for re-use of directors’ works (by way of television repeats and other secondary use). These payments will be distributed to directors as supplementary to their negotiated fees through the DPRS.[9] The directors’ representatives have since been negotiating with television producers to establish a “forum”, which will provide a regular opportunity to discuss and negotiate the wide range of issues facing directors.[10] Among its tasks, the forum is expected to agree contract guidelines for the engagement of directors, to be adopted by 1 July 2002.[11]

Concerns have been expressed about the legitimacy of collective negotiations under competition law. Although collective negotiation may seem no more objectionable for freelancers than for employees, an important legal distinction exists in that competition law treats individual freelance creators as “undertakings.” Given that Article 81 EC (formerly Article 85 of the Treaty) renders void all “agreements between undertakings which … have the object or effect of distorting competition within the Common Market”, fears exist in some quarters that combinations of creators may be treated as illegal cartels. Whether the effect of any such collective agreement is in fact anti-competitive is a matter always to be judged through and economic assessment of its impact on the market, and so is not a matter on which any general statement can be made here.[12]

Although in many cases the existence of these European laws (and their national equivalents under the Competition Act 1998) does not seem to have impeded negotiations (e.g. between the BBC and the MU), it nevertheless represents a potential excuse for exploiters not to bother engaging with associations.[13] This seems undesirable, both to the Department of Culture, Media and Sport’s (DCMS’) Creative Industry Task Force,[14] as well as to legal commentators.[15] Moreover, if collective negotiation is ever to proceed at a European level (something which the European Commission seems keen to facilitate as part of the process of the harmonization of contract law generally),[16] it would be useful to make it clear that these types of coalition and their standard agreements are unobjectionable under competition law. As Professor Dietz has argued,[17][a]n explicit clarification of the permissibility of agreements at a European level could … do much to promote harmonization of the law of copyright contracts.

In negotiating standard contracts, deals with organizations dominant in the industry or with specific public interest agendas are crucially important in setting standards for collective agreements with other exploiters. In particular, agreements with the BBC can have a pivotal role. In the case of the BBC, its special status and its obligations under its Charter, mean that pressure can be bought to bear to ensure it represents fair practice. Indeed, the BBC operates its own Fair Trading Commitment of 1995.[18] As the Government has observed, the BBC “should set the best standards in the industry … rather than exploit”.[19] As a result of pressure, the BBC has confirmed it is committed to “only commissioning the best from whatever source”[20] and, hopefully, will abandon its “white lists”, which by definition limit those who can be considered by commissioning producers.

Two significant breakthroughs have recently taken place in this respect. The NUJ, Society of Authors and the Writers’ Guild of Great Britain have been acting jointly on behalf of freelance writers of radio features in negotiations with the BBC. The parties are still in discussion and, while progress has been made, agreement has not yet been reached on either licences or moral rights.[21] Secondly, the MU, together with the BAC&S, recently finalized a Code of Practice with the BBC, which attempts to restore confidence in the commissioning process by emphasizing to composers (for television) that such contracts that are made with BBC Music Copyright are separate from any publishing agreements with BBC Worldwide Music and so “separate and independent negotiations” take place with each organization. Where a composer does enter into an agreement with BBC Worldwide Music, the latter will act (under the Code) as a bona fide music publisher.[22]

Another way in which creators can receive greater remuneration is through collecting societies. These are organizations which are commonly established to administer the rights of creators (and in some cases other copyright owners) collectively, usually by entering into licensing agreements with users.[23] Collecting societies offer important opportunities to authors particularly to secure monies from “secondary uses” of their works. If authors have retained relevant rights, they can be assigned to a collecting society. In the case of composers, the PRS operates as a collecting society that will collect money from users who play or broadcasts their works in public. PRS annual income from all sources is in the region of £200 million.[24] In the case of directors, the DPRS, as we have noted, administers the block payments from broadcasters for secondary uses of their films. As far as writers are concerned, the most relevant society is the Authors' Licensing and Collecting Society (ALCS), which collects fees for writers from the retransmission by cable of all terrestrial channels and also from reprographic reproduction. The Design and Artists Copyright Society (DACS), formed in 1983, administers for (among others) photographers a panoply of rights similar to those administered by the ALCS for authors. All these schemes distribute monies obtained from national users, and also through related organizations operating abroad from users of works outside the UK.

Collecting societies do not simply operate as collectors and distributors of monies. In some cases they can constitute important mechanisms for shielding creators from the market power of exploiters. This can occur, for example, because they establish general rules concerning distribution of revenues that tend to supplant the terms of individual negotiation. For example, the PRS requires that no more than half the fees received in relation to the public performance of compositions are to be paid to the publisher, and no more than one sixth in the case of the transferees of publishing rights which are not in fact using all reasonable endeavours to further exploit the works.[25] Although the liabilities of individual creators can always be imposed through individual contract provisions, there can be little doubt that these collecting society rules have the potential to operate to insulate creators from such provisions.

The reforms we propose in section G are without prejudice to the need for and potential benefit that can accrue from the action suggested here. Indeed, without the widespread awareness of individual rights and ideal contracting practices, the legal reforms we propose would possibly prove ineffective (and certainly would be less effective). Moreover, if the reforms we propose are to have a significant impact (as well as to have sufficient flexibility), this will be through the adoption of collective agreements in particular sectors of the cultural industries.



[1] Of course, this will be easier for the “stars” than the less well-appreciated creators. At the CRA conference in March 2001, Dame Antonia Byatt described her own practice of refusing to sign “all rights” contracts, or waive her moral rights, but admitted that sometimes she had thus foregone work.

[2] Battling for copyright, p.24.

[3] Practices can change rapidly, so it might be useful if information networks also operated less formally. The American Society of Journalists and Authors which established a “Contracts Watch” – a free fortnightly electronic newsletter informing freelancers of the latest terms and negotiations in the world of newspapers.

[4] It has been observed that one practical problem with legal advice is that so many entertainment lawyers are more used to acting for producers, broadcasters and publishers than for creators.

[5] Battling for copyright, p.20.

[6]  Such as the AoP, BAC&S, BAPLA, CIoJ, Equity MU, NUJ, Society of Authors, Writers’ Guild,

[7] Battling for copyright, p. 19.

[8] These sorts of negotiations largely depend on the continued retention of copyright by authors, and are difficult, if not impossible, to achieve where authors have already assigned all their rights to exploiters. For examples of such collective agreements in Europe see also Author’s Rights: A Manual for Journalists Annex A.2 (on line).

[9] P. Haggard, ‘A Success Story: The Triumph of the Rights Campaign’, Direct (the magazine of the DGGB), (Summer 2001) p. 20; Out of the Box, para 3.5.6.

[10] Specifically, the British Broadcasting Corporation, ITV Network Limited, Channel Four Television Corporation, Channel 5 Broadcasting Limited, British Sky Broadcasting Limited, Sianel Pedwar Cymru, Producers' Alliance for Cinema and Television, Teledwyr Annibynnol Cymru.

[11] Direct (the magazine of the DGGB), (Winter 2001), p.30.

[12] Brasserie de Haecht v Wilkin, Case 23/67 [1967] ECR 407. See generally . R. Whish, Competition Law (London: Butterworths, 2001) 98-101.

[13] Indeed the AoP reports that the BBC refused to negotiate standard contract terms for exactly this reason.

[14] Out of the Box para 6.2.40 “we see no cause for concern about groups of rights holders seeking to act collectively to strengthen their negotiating positions.”

[15] Dietz, Copyright Law in the European Community 210 (Alphen aan den Rijn, 1978).

[16] In its Communication to the Council and the European Parliament on European Contract Law (COM (2001) 398 final, 11 July 2001), para 56, the Commission refers to the problem of differing contracting practices in different member states and states that “these problems could be solved, in conformity with Community law, if standard contracts were developed for use throughout the EC. The Commission could promote the development of such standard contracts by interested parties.”

[17] Dietz, Copyright Law in the European Community 210 (Alphen aan den Rijn, 1978).

[18] Despite this, the BBC had been one of the prime perpetrators of the abusive practice of requiring composers, prior to being commissioned, to agree to assign publishing rights to associated arms and, later, to BMG.

[19] Jim Dowd MP, CRA conference, March 2001.

[20] Select Committee on Culture, Media and Sport, Ninth Report, on Report and Accounts of the BBC for 1999-2000.

[21] Papers on file with CRA.

[22] BBC & BBC Worldwide Music: Agreed BBC/MU Guidelines for Commissioning and Publishing Music at the BBC.

[23] See L. Bently & B. Sherman, Intellectual Property Law (Oxford: OUP, 2001) ch.12.

[24] For details of the PRS see http//www.prs.co.uk

[25] PRS Rule 2(f)ii. However, it should be said that this rule has proved ineffective because it is virtually impossible to challenge a “publisher” who claims to be “using all reasonable endeavours” and asserts that it has attempted to exploit the work but has so far been unable to generate sufficient interest.

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