Creators' Rights Alliance - Between a rock and a hard place - E: The necessity of legislative action
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International standardisation

The CRA believes that the third level at which action might be attained is international where there is a host of treaties dealing with copyright[1], the most important of which is the Berne Convention on the Protection of Literary and Artistic Works. This Convention was first drawn up in 1886, as a small treaty allowing for mutual recognition of rights among a few, largely European, countries. Since then the Treaty has been revised on a number of occasions, so that its coverage and the standards that it demands of its signatories have become increasingly onerous.[2] There are now 148 members of the Berne Union[3], which is operated by the WIPO and describes itself in Article 1 as a Union “for the protection of the rights of authors in their literary and artistic works.”

In its present form, the Convention requires that members of the Berne Union provide certain minimum standards of protection to copyright owners and authors. The scope of protection includes the right to reproduce the work, to perform the work publicly,[4] to translate the work, to adapt the work, and to broadcast the work.[5] Members of the Union are also to grant authors (rather than copyright owners) two, so-called, ‘moral rights’ of attribution and integrity.[6] Apart from moral rights, the Convention contains few (if any) provisions specifically directed at the protection of authors against exploiters. Indeed, it leaves it to member countries to define exactly who is an author (though it implies that the term indicates individuals),[7] and Article 2(6) states that protection “shall operate for the benefit of the author and his successors in title.”

Revision of Berne itself has proved difficult, but following the conclusion of the last round of the General Agreement on Tariffs and Trade (GATT) in 1994 (which includes some provisions on intellectual property but not authors’ contracts nor moral rights) WIPO succeeded in holding a diplomatic conference which resulted in the agreement of two new copyright treaties - the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty.[8] Both treaties are intended to supplement the existing Conventions to reflect, in particular, technological changes especially relating to the so-called ’digital agenda’, (i.e., in response to concerns of copyright owners prompted by the new digital communication technologies.) However, so far, there has been little effort to protect creators against unfair contract with exploiters, although under Article 5 of the WIPO Performances and Phonograms Treaty, contracting states are to confer moral rights of attribution and integrity on the performers of ‘live aural performances or performances fixed in phonograms’.[9]

There are three reasons why reform of the law of authors’ contracts is particularly desirable at a global level:

  • Creators’ rights are human rights, and therefore strong moral rights and rights to remuneration should be available to all authors.[10]
  • Reforming authors’ contracts and moral rights at an international level will significantly resolve the problems of  “conflicts of law”.
  • International harmonization of these provisions will prevent exploiters electing to commission work in countries where the law protecting authors is weak.

As Professor Hugenholtz has observed:

“An internationally harmonized regime of copyright contact law would benefit both authors and producers. It would prevent choice of law clauses from undermining author-protective provisions, and create a ‘level playing field’ for producers all over the world.” [11]

If international action in the field of copyright contracts is to occur, it is likely that this will be through the work of WIPO.[12] Consequently, our members should attempt to engage in international affiliations with a view to seeking action from WIPO, while simultaneously urging the EC and UK governments to instigate similar action.

[1] Also important are the Universal Copyright Conventions (last revised at Paris in 1971); the Rome Convention 1961; the Geneva Convention on Phonograms of 1971; and the Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite, agreed at Brussels 21 May 1974 the GATT-TRIPS and the two WIPO Treaties.

[2] The last revision was at Paris, 24 July 1971, and amended on 28 September  1979.

[3] 15 January 2002.

[4] Under Berne, Art 11 “public performance  includes “public performance by any means or process” (so could include live performances or performances via broadcasts or recorded media.  Article 11 requires Members also to confer a right to communicate to the public a performance of the work.

[5] Berne Art. 9, Art. 11, Art. 11 ter, Art. 9(3), Art. 8 and 11(2) (translation); Art. 12 adaptations, arrangements and other alterations); Art. 11 ter(2) (communication of translations); Art. 12 (authorizing adaptations, arrangements and other alterations of their works); Art. 14 (cinematographic adaptation); Art. 11 bis.

[6] Berne Art. 6 Bis.

[7] See A. Sterling, World Copyright Law  (London: Sweet & Maxwell, 1999); para 5.02, p.155. As to cinematograpic works, the Convention is even more facilitative, seemingly permitting first ownership to vest in non-authors: Art 14 bis (2)(a).

[8] D. Saunders & B. Sherman, From Berne to Geneva (1997).

[9] WIPO Performers and Phonograms Treaty Art. 5.

[10] G. Boytha, ‘The Development of Legislative Provisions on Authors’ Contracts’ (1987) 133 Revue International de Droit d’autur 41, 101-3 (“there is a manifest trend, on a worldwide scale, to protect authors by legislative measures …This trend should be furthered internationally … [C]omparative and harmonizing efforts appear advisable to promote well-balanced developments of the protection of authors’ interests in all countries …”)

[11] 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.

[12] Though the closest international approximation to our proposals is UNESCO’s Recommendation on the legal protection of translators and translation and the practical means to improve the status of translators.

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