Creators' Rights Alliance - Between a rock and a hard place - A: The abuses
v Menu v

The abuses which concern the CRA involve the use and re-use of creators’ works without adequate payment or recognition, and sometimes without any payment. They also sometimes involve the use of works for purposes other than those in contemplation at the time the work was supplied, and the mutilation or modification of works without the consent of their creator.

Some of the abuses we describe below are longstanding. Other abuses are responses to changes within the financial, bureaucratic or organizational structures of the creative industries. However, the majority of these abuses arise as a result of the response of business to recent technological change, particularly digitization and the advent of the Internet.

Digital creation, storage and distribution of works has been seen as the key to the future for many exploiters within the cultural industries, which, in turn, have been particularly vocal about the threat posed by piracy on an unregulated Internet. We have all heard about the legal actions against Napster, and the lobbying to obtain stronger protection of intellectual property rights on the Internet. But few of those outside the cultural industries will be aware of the other way in which businesses have responded to the emerging technologies: the so-called “rights grab”. While lobbying governments with vivid descriptions of the potential damage the Internet could do to creators, many of the very same exploiters have been perpetrating a systematic and “massive confiscation of authors rights”[1].

Many of the following examples of abusive practices are documented in the NUJ’s Freelance Industrial Council pamphlet, battling for copyright (2000), and the Creators’ Rights Alliance copyright video, Creators Have Rights. Others have been brought to our notice, either through the Authors Rights for All - Summit 2000,[2] the Creators’ Rights Alliance conference of 14 March 2001, or through consultation with the representatives of the various members of the CRA.

  •  Freelance journalists who had provided material to one newspaper have found that:
  • their work has been syndicated worldwide without their knowledge or consent,[3]
  • their works, submitted for print publication in Britain, have appeared in CD-ROM format and on electronic databases, again without payment,[4]
  • their works, submitted for print publication, have subsequently been electronically stored in archives, and that newspapers are making available electronic copies of their works, (effectively a reprint service), without payment;
  • Occasionally, such journalists have found that their works have been presented out of context so as to distort the meaning of the works (for example, by the use of documentary photographs in advertising);[5]
  • Composers of music for television programmes have, as a condition of being commissioned, been coerced into transferring full publishing rights to companies associated with the commissioner, even though there is no intention actually to exploit the publication rights (the goal being merely for the publisher to claim the performing rights revenue which would otherwise go to the composer.)[6] Similar assignments of copyright have been demanded of composers of music for use in advertising.[7] Given that broadcast royalties (collected by the Performing Right Society (PRS) typically constitute more than 50% of a freelance composer’s annual income,[8] these transactions potentially siphon away a quarter of the composer’s annual income;
  • Composers of music for television programmes have discovered that when the programme becomes a success they are not remunerated (or are poorly remunerated) for a host of ancillary forms of exploitation (sale of records, use in advertising etc). This is sometimes because the broadcaster has contracted with the creator on a standard form requiring assignment of all rights (rather than a licence of the ‘synchronization rights’ for the use envisaged), and has neither the willingness nor capacity to exploit the work to its full potential;[9]
  • Directors of films, having agreed the form of a film before its first screening, have had their works altered prior to later screening without their consents, (typically by people unfamiliar with the work, and so as to materially affect the quality of important sequences). Sometimes the re-editing has been undertaken to insert commercial breaks, to cut running time, and in other cases to protect sensitivities of audiences but, in most cases, the directors have only discovered that changes had been made when the work was publicly broadcast;[10]
  • Photographers have found that their work has been altered, cropped or digitally manipulated without their consent so as to change the significance of the images and damage their reputations;[11]
  • Creators from across the spectrum have found that certain Internet Service Providers have demanded, as a part of the grant of the service, rights over works transmitted through the service.[12]

These abuses are not exceptional cases. Rather, in the words of David Ferguson, composer and Chairman of the Creators’ Rights Alliance, they are “utterly commonplace to [those] who work in the creative industries, be it broadcasting, newspapers, magazines or any other media.”[13]

 


[1] 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, March 31-April 2, 2000; see also B. Hugenholtz & A de Kroon, ‘The Electronic Rights War. Who Owns the Rights to New Digital Uses of Existing Works of Authorship?’ (2000) IRIS (Legal Observations of the European Audiovisual Observatory) 16, 19 (describing changing contractual practices).

[2] British Library, London, 14-16 June 2000.

[3]  battling for copyright, (London: NUJ, 2000) p.10, p.23 (via ‘lifting rights’).

[4] Evidence on file with CRA/NUJ.

[5] Dame Antoinia Byatt, CRA Conference, March 2001 (relating story of a Chilean econometrist who made a broadcast about the South American economy but later found it being selectively used on Swiss radio to make the opposite point); Charles Wheeler, id, (relating how US cable companies altered documentary by removing interview merely to avoid revealing that the journalist was British, not American).

[6] See PACT Model Contracts 1999 Edition – Composer’s Publishing rights letter of engagement (on file at CRA); commissioning contracts between David Ferguson and Scottish TV (Rebus: Dead Souls and Mortal Causes’ as well as Carlton TV (Lloyd & Hill) (both 2001), on file with CRA. At the BBC, this became standard practice from as early as May 1997 but as a result of the Code of Practice agreed with the MU and recognized by BAC&S in 2002 such practices should no longer operate.

[7] For example, in 2001 the advertising agency Bartle Bogle Hegarty began issuing a “Deal Memo for Commissioned Music”, which includes provision for a subsidiary, Black Sheep Music, to exploit recordings of the music and claim 50% of the publishing rights (including PRS royalties). See, (2001) 40 the bugle (newsletter of the Society of Producers and Composers of Applied Music (PCAM) 6-8.

[8] Composers’ royalty income has two sources. Firstly, the ‘performing right’ (the right to be remunerated when the work is performed in public or broadcast), which is collected from broadcasters and then distributed to its members by the PRS. When the composer is coerced into a broadcaster-initiated publishing contract the maximum amount the publisher can take from this income stream is 50% under PRS rules. In theory, rule 2(f)ii of the PRS should reduce the publisher’s share to 2/6 unless the publisher uses his best o to exploit the music beyond its initial use. In practice, this never happens, even when it is perfectly clear that there was never any hope of any secondary exploitation. The second source of royalty income is ‘mechanical rights’, which are collected and distributed by the Mechanical Copyright Protection Society (MCPS). These are incomes primarily generated by sales of videos and CDs. Where a composer has assigned all secondary rights to the broadcaster as part of the commissioning process, 100% of these mechanical rights are collected by the music publisher along with 50% of the performing rights income and then after the publisher’s deductions all this income is returned to the broadcaster.

[9] Following the success of a piece of commissioned television music, there are many opportunities for a composer to achieve ancillary income from sales of records, use of the music in advertising, films etc. If he has assigned the whole of the copyright to the broadcaster, he is reliant upon the assignee to exploit the work beyond the use for which it was first commissioned. In most cases such assignees are unwilling or unable to exploit their works in these ways (as is sometimes said, ‘secondarily’) thus seriously limiting the potential income of the composer. Bearing in mind that many such total assignments endure for the life of copyright i.e. until 70 years after the death of the composer, there is little to recommend such a contract. The purpose of commissioning a composer is to achieve the right music for the broadcast. The commissioner should then be given an exclusive licence to use the music within that broadcast. The assignment of all other rights is unnecessary.

[10] Maurice Phillips, on Creators Have Rights; evidence on file with Directors’ Guild of Great Britain (DGGB) and CRA. TV directors are not kept informed of subsequent transmissions within the UK or other jurisdictions. Therefore it is impossible for the director to monitor subsequent screenings, though many have found their works have been passed on to other broadcasters and re-edited for different audiences.

[11] Evidence on file with Association of Photographers (AoP).

[12] battling for copyright, p.25.

[13] David Ferguson, Creators Rights Alliance Conference, South Bank, London, March 14, 2001.

^ Top of page ^