Creators' Rights Alliance - Between a rock and a hard place - D: A look across Europe
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While we acknowledge that the chief cause of the abuses of freelancers that we have identified relates to contractual practices informed by market forces, a glance at other European laws shows that British creators are in a comparatively weak position compared with creators in foreign jurisdictions, particularly in Europe. Although individual national systems in Europe vary, they have been strongly influenced by the ‘droit d’auteur’ or ‘authors’ rights’ models of regulation in this area, as opposed to the ‘copyright’ model of which the UK and Republic of Ireland are seen as examples.[1] According to this stylization, the civil law model, droit d’auteur, places greater emphasis on the natural or human rights of authors in their creations whereas in the ‘copyright’ or ‘common law’ model, copyright law is primarily concerned with encouraging specific activities. For example, droit d’auteur places emphasis not just on securing the author’s economic interests, but also on securing protection of the work against uses which are prejudicial to an author’s spiritual or moral interests.

The difference in approach can be seen especially in the very different treatment of authors’ contracts,[2] and so-called ‘moral rights.’ In most continental countries, moral rights are given broad protection, whereas in the UK and Ireland moral rights are defined in a limited manner and can be waived. Moreover in most continental countries there are restrictions on contracts concerning the exploitation of a creator’s economic rights. Although Ireland and the UK have rules regarding formalities for copyright assignments, they have few other rules restricting alienability. In contrast, most of the “droit d’auteur “ countries have both rules regarding the content of contracts and rules of interpretation.

Appendix 2 contains a more detailed analysis of the various laws in Belgium, France, Germany, Greece, Italy and Spain. As will be clear, European laws are by no means uniform, although (like the UK) all recognize both economic rights and moral rights. In some jurisdictions, such as Germany and Austria, the moral and economic rights are viewed as being inextricably tied together. These countries follow the “monist theory” of authors’ rights. According to the monists, authors’ economic and moral rights are thoroughly interwoven so that their exercise cannot in principle be separated. Although moral rights may be designed to protect a creator’s spiritual interests, a monist would take the view that moral rights can legitimately be used to claim financial benefits, and exploitation of works through economic (a.k.a. ‘patrimonial’) rights fuels the author’s reputation which the moral rights protect. Most other European countries (France, Belgium, Italy etc.,) follow the dualist concept and treat moral rights and patrimonial rights as relatively independent: as aimed at protecting distinct spiritual and economic interests. Classically, the distinction between monist and dualist is to be seen in the different durations of moral and economic rights (some dualist countries rendering moral rights perpetual), and the assignability of the economic aspects of copyright in the dualist system. In the monist system, because of the intimate relation between moral and economic rights, economic rights cannot even be transferred.

Although the monist systems prohibit outright transfers of economic aspects of copyright (so that all exploitation contracts take effect as licences), in other respects there are many similarities between the monist systems of Austria and Germany and the dualist systems of France and Belgium (for example). More specifically, as regards moral rights, all these systems recognize at least rights of attribution and integrity, and restrict waivers of moral rights (if they are permitted at all) to specific acts. Similarly, as regards contracts, many of the continental legal systems require that the contracts be interpreted in favour of the author and also impose mandatory terms which confer on creators rights to equitable remuneration from uses of their works. A glance at the legislation and case law described in Appendix 2 reveals that in Britain (and Ireland), as the laws currently stand, there are minimal levels of legal protection for creators per se. There are no provisions recognizing the special status of creators and their contributions to our culture, no provisions recognizing their typically weak bargaining power, and none which attempt to ensure that such creators receive proper levels of remuneration. As can be seen most evidently in the context of moral rights, British legislators have sacrificed the interests of creators to the hostile ideologies of the market, and the political lobbying power of the exploiters.

In 1988 Professor Katzenberger wrote:

“As the contract partner of publishing houses, broadcasting companies, film producers and other commercial exploiters of copyright-protected works, the author, as a rule, is the more vulnerable, the weaker party … the content of the contract is usually determined by the exploiter of the work, often in the form of carefully prepared, pre-formulated, general contract terms. Under these circumstances, it is up to the legislature to protect the author, in the area of contract law, through mandatory provisions from which the contract must not deviate …”[3]

In the next section, we call on the various legislative and standard setting organs to give adequate protection to creators.

[1] For a classic statement, see A. Sterling, World Copyright Law (London: Sweet & Maxwell, 1999); para 16.06, 443-446.

[2] See N. Netanel, ‘Alienability Restrictions and the Enhancement of Author Autonomy in United States and Continental Copyright Law’; (1994) Cardozo Arts & Entertainment Law Journal 1; G. Boytha, ‘National Legislation on Authors' Contracts in Countries Following Continental European Legal Traditions’ [1991] CopyrightRevue International de Droit d’autur 41; J. Black, ‘The Regulation of Copyright Contracts: A Comparative View’ [1980] European Intellectual Property Review 386; D. De Freitas, ‘Copyright Contracts: A Study of the Terms of Contracts for the Use of Works Protected by Copyright Under the Legal System in Common Law Countries’ [1991] Copyright 222. 198; G. Botha, ‘The Development of Legislative Provisions on Authors Contracts’ (1987) 133

[3] P. Katzenberger, ‘Protection of the Author as the Weaker Party to a Contract under International Copyright Law’ (1988) 19(6) International Review of Industrial Property and Copyright Law 731-2.

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