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

In the introduction to the Green Paper on Culture and Creativity (2001) Prime Minister Tony Blair stated that “creative talent will be crucial to our individual and national economic success in the economy of the future.

The Creative Industries Task Force Inquiry into UK Television, Stage Two, was asked by the DCMS to consider “the negotiation and development of talent rights agreements, such as those with writers, composers, performers and musicians, with a view to identifying and making use of best practice agreements.” The inquiry was conducted by David Graham & Associates and resulted in a report entitled Out of the Box: The Programme Supply Market in the Digital Age – A Report for the Department for Culture Media and Sport (December 2000). This recommended that the form and content of talent rights agreements were best dealt with between exploiters (broadcasters and producers) and creators (directors, composers etc.,) as part of their contractual arrangements, and it was for those parties to conclude such deals as suit them. The report concluded: “market forces, appropriately overseen by competition authorities, should continue to be the fundamental determinant of talent rights agreements, and it is not for the government to intervene in individual negotiations.[1]

The CRA does not believe that the government should be satisfied with the conclusions of the Out of the Box report as far as talent rights agreements are concerned. The Task Force spent very little time investigating this issue, being much more focused on issues of competition within and at the various levels of the programme supply chain. Furthermore, the Task Force acknowledged that it was difficult for it to do justice to the “complex area of talents rights negotiations in the context of such a wide-ranging inquiry”. Apart from its clear failure to master the complexities of the issue it had been asked to address, the Out of the Box inquiry unjustifiably adopted three “guiding objectives” against which to make its appraisal; those of ensuring a dynamic market, ensuring universal access and guarding consumer interests.[2]

These objectives were not mentioned in the Task Force’s terms of reference and are unduly limiting because they fail to accommodate the fundamental aims of copyright law which we set out earlier in section B (namely, the protection of human rights, the provision of incentives to create, to reward creation, and to promote democracy which, we argue, require a framework within copyright contracts and a system of moral rights which can guarantee creators a fair remuneration and full control of the use of their works).

In the view of the CRA, the adoption of market-oriented objectives was unwarranted and inevitably led to their conclusion that the terms of talent rights agreements should be left to be resolved according to the “needs of the marketplace”. Curiously, this conclusion was also at odds with their previous analysis to the effect that: “[a] programme industry … thrives … when the value of each intellectual property right is maximized and all contributions are rewarded fairly – in the face of uncertainty about the value of those rights and contributions when the agreement is forged.[3] As far as the CRA is concerned, the only part of the Task Force’s conclusions as to talent rights agreements that the government should take seriously is the conclusion that a thriving creative industry requires that the creators be fairly rewarded.

Currently the UK Government is in the process of implementing the so-called “EU Copyright Directive”, as well as the moral rights provisions of the WIPO Performances and Phonograms Treaty. This Directive was adopted to strengthen and clarify the rights of copyright owners in the new digital environment. During its passage, creators made their voices heard before the European Parliament, when lobbying against various amendments proposing to create exceptions to protection. Although the EU Directive is written in terms of conferring rights on “rights-holders” (whether creators or their transferees), it is clear from the legislative background and recitals 9-11 that it is intended to benefit creators as well as copyright exploiters.[4] We hope that the government will recognize this, particularly in its implementation of the “fair compensation” provisions of Articles 5(2) (a), (b), and (e). Anthony Murphy, Head of the Copyright Directorate at the Department of Trade and Industry, has observed that “the credibility of the implementation process rests at least in part on producing something which leaves individual authors feeling that the world is a rather better place than it was before”.[5] This could be achieved by ensuring that creators be granted rights to participate in these revenues.

While the government will almost certainty treat the implementation of the EU Directive as a discrete task, we consider that it should also take the opportunity to consider more generally the position of creators within the copyright schema. Government Whip Jim Dowd, speaking on behalf of Janet Anderson MP, Minister for Tourism, Film and Broadcasting at the CRA conference in March 2001, argued that “the government does have a role … in maintaining the legal framework in which rights are protected.

The CRA calls on the government to consider whether the law could better arrange the “legal framework in which rights are protected”, (by introducing stronger protection of authors), in particular through the reforms suggested below.

 


[1] Out of the Box, para 1.4.8; 6.2.40.

[2] Ibid, para 6.1.1

[3] Ibid, para 2.3.2.

[4] Recital 9 refers to the “interests of authors”; recital 10 to the need for authors to receive “an appropriate reward” and recital 11 to the need to safeguard “the independence and dignity of artistic creators.”

[5] ‘Copyright at the Crossroads’ 112 The Author 166, 167  (Winter 2001).

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