RESPONSE TO THE EU GREEN PAPER

[NUJ]

National Union of Journalists

of

Great Britain and Ireland

Response to the European Commission

(Directorate General XV) on the Green Paper: "Copyright and Related Rights in the Information Society"


Introduction

The National Union of Journalists of Great Britain and Ireland is a trade union representing 22,000 working journalists in several member states of the European Union. Our members work in newspaper, book and magazine publishing, broadcasting and publi c relations. Journalists in the United Kingdom and Ireland who are in staff employment have no copyright or moral rights in the material they produce.

Our response to the Green Paper is made on behalf of the 5,100 freelance journalists (writers, photographers, illustrators etc.) who are also members of the NUJ in the UK, the Republic of Ireland and several other member states of the European Union. We have significant freelance membership in France, Belgium, The Netherlands, Spain and Germany.

Copyright under attack in UK

Since December 1994, a number of large publishing companies in Britain Reed Elsevier, VNU, EMAP, FT Magazines, Telegraph Publications and others - have attempted to obtain all rights in material commissioned from freelance journalists. They have done so by issuing contracts which demand the assignment of all rights, a waiver of all moral rights, and in some cases the assignment of copyright in all work previously supplied to the publisher by the freelance.

These "onerous assignments" of copyright, as they are now widely known, have become a source of conflict between organisations representing right holders and publishers. Documents produced by Reed Elsevier managers and obtained by the NUJ show clearly that the company is determined to use its commercial strength to obtain the assignment of all rights in commissioned freelance work and, eventually, to destroy the concept of intellectual property rights.

The imposition of "onerous contracts" is usually achieved by the explicit or implicit threat that the freelance will not be commissioned to work unless he or she agrees to the company's terms. The process can be described as "Superhighway robbery," th e publishers taking advantage of Britain's inherently unequal law of contract to extort from the freelance that which he/she does not wish to give up: copyright.

Why are so many British publishers behaving in this aggressive and unfair way? According to Mr Ian Locks, the chief executive of the British Periodical Publishers' Association, the answer is simple: publishers have found that they do not own all right s to contributed material, and unless they own all rights they are unable to use new technologies to recycle information in new forms. In short, the publishers want to re-use articles and photographs, but are not willing to share the economic benefits wi th the authors. They are also unwilling to respect the moral rights of authors when re-using material stored in electronic form. Under British law, authors supplying material for publication in newspapers and magazines have no moral rights. If that sam e material is stored, retrieved and transmitted in electronic form, however, the author's moral rights are re-established. That is why publishers demand, in writing, a waiver covering all moral rights.

The present situation in Great Britain vis a vis publishing companies and right holders is nothing less than a scandal. It is a scandal for three reasons:

(i) Because giant corporations are able to abuse their financial and commercial strength to force unequal contracts on right holders;

(ii) Because these same corporations are thereby seeking to obtain an unfair advantage over their competitors, within the European Union and other countries, who are required by law to recognize the rights - including moral rights - of contributing aut hors, photographers etc;

(iii) Because far from seeking to uphold the spirit of the Copyright Designs and Patents Act of 1988 - which would mean upholding the rights of authors - the British government is, at best, indifferent to their plight and, at worst, actively siding wit h the publishers.

Our response to the Green Paper is conditioned, therefore, by the calamitous and unprincipled attack on authors' rights being carried out by British publishers. We recognize the historic opportunity which digital technology presents, but we are partic ularly mindful of the cultural and social value which the European Commission attaches to copyright. We fear that the cultural and social problems arising from digital technology and the construction of the information society will be sacrificed to econo mic gain: that would be short-sighted and self-defeating.

Before responding in detail to the questions raised by the Green Paper, we set out our central concerns.

Three broad principles

1. Copyright is a fundamental component in the construction of the information society and 'superhighway'. The writers, artists, musicians etc., will produce material only if they are properly rewarded i.e. their rights are respected; publishers will invest money in the infrastructure only if they can see that there is a demand for the services they offer; the public will create that demand only if the quality and services in the information society meet their needs at a price they can afford. It is obvious therefore, that building the information society involves balancing the needs and interests of capital, the needs and interests of the creators, and the needs and interests of the citizen - the consumer.

We believe that hitherto the European Union has leaned too far in favour of the interests of capital. We therefore welcome the Green Paper because it goes some way to redressing the balance by recognizing the importance of the authors' rights.

2. These rights are not merely economic. The preservation of moral rights is central to any discussion on the information society, even though digital technology and interactive networks mean that it is increasingly easy to change the original work in ways undetectable by the consumer/citizen. There are two reasons why the preservation of moral rights is crucial.

First, because the integrity and authenticity of an artist's work is of importance to society as a whole. The enduring value of a piece of writing or a photograph or a design may not be immediately recognised. Unless moral rights are preserved there is a danger that the original work will be modified to make it commercially "successful". Very quickly the vigour and variety of our culture will degenerate into what is merely easy to sell.

The second reason why we are emphatic and unequivocal in our support for the preservation of moral rights is that we represent journalists. The constant use and re-use of editorial material, altered, modified or distorted to suit every conceivable nic he in the market is not a happy prospect. The citizen/consumer in our "information society" must be able to trust - to rely on - the authenticity of the images and information which are being provided. That trust cannot be located in an anonymous corpor ation - whether it be the BBC or News International - but in the moral and ethical standards of journalists themselves. Far from making it easier to waive moral rights, we believe the European Union should be extending and reinforcing the moral rights of authors and all creative workers.

Attached here at Appendix 1 is a recent example of how a journalist's work can be changed by digital technology from a serious statement to a trivial fraud perpetrated on an unsuspecting and trusting public.

3. Our third broad concern is that the benefits of the information society are available to all. Implicit in the Green Paper is the assumption that everyone will have the means to access the information and entertainment services of the superhighway. That assumption remains untested. And yet, if the information society is not accessible to all, we will very quickly create a culture of "haves" and "have-nots" in terms of information. Far from being an advance, that would be a severe set-back for soc iety. We are conscious of the part played by the press in fostering democracy in Europe and the United States. Although now degraded in many cases, the press at its best speaks to and for all citizens. If we now move into a situation where large sectio ns of society are excluded for economic reasons from sharing in the information available, then we are at risk of creating social tensions and divisions on a scale not previously known.

Public libraries have been one of the most important ways in which people who could not afford to buy books or pay for education have nonetheless had free access to other worlds. Ensuring that public libraries are part of the information society seems to us to be fundamental.

Questions Raised in the Green Paper

Section 1

For the reasons already given, we recognise the important role which contracts and the law of contract play in the area of copyright. Determining which law should apply in disputes over contracts is fundamental.

However, we do not believe that the Green Paper makes out a convincing argument for a "country of origin" rule. Since the applicable law has, in copyright cases, been the country where protection is sought, there must be persuasive reasons for abandon ing the traditional system: the Green Paper does not adduce any persuasive arguments, beyond pointing to the Satellite and Cable Directive.

Since the European Union cannot legislate for non-member states, and since the growth of digital technology means that national boundaries are in any case increasingly irrelevant, the questions of what copyright law is applicable transcends both the de velopment of the internal market and competition policy. It becomes a strategic, political decision: will the member states of the European Union benefit more from a "country-of-origin" law, or from the traditional system, that is the law of the country in which protection is sought. We are doubtful that the European Union will benefit from "country-of-origin" law.

Given our present experience, where publishers in the UK seek to impose unfair contracts - effectively taking away authors' rights by economic force majeure - we are in no doubt that freedom of contract should be restricted (Question 9). It is now clear that this is necessary in order to protect right holders from predatory and unfair contracts.

In our view, action is necessary at European Union level to protect moral rights, equitable remuneration and management by a collecting society.

Section 3

Question 1

The digitization of an existing photographic or "artistic" work is itself an act of reproduction. However, we accept that digitisation for the purposes of conservation or preservation by a not-for-profit agency is a justifiable exception.

Question 2

In addition to our answer to Question 1, we believe that under not-for-profit library or educational conditions it should be possible to browse or view publicly marketed copyright material on-site or remotely without infringing copyright. This excepti on should not be capable of being overridden by a contract. A "fair-dealing" single copy of a complete "artistic" work should be permitted provided it is clearly identifiable as such or the copy is of a lower resolution than the source from which it is d erived.

Section 4

Question 1

Transmission over the network between two private persons can be considered a form of private use when the material transmitted is for personal use and will not be re-transmitted.

Transmission via a bulletin board system involving a number of private persons cannot be considered a form of private use.

Transmission over the network within one or between several firms could be considered as private use if the material transmitted is not for commercial use.

Transmission over the network within one or between several firms could be considered private, but only insofar as the material transmitted is being disseminated with the owner's knowledge and consent.

Question 2

No. Any definition including people who "know" each other - or are members of the same "family" - will be either meaningless or inoperable.

Question 3

Communicating with the public (whether or not it is by a point to point system) means communicating to unknown and unidentified persons. We think that the nature of those communicating is less important than the nature of what is communicated.

Question 4

Yes we do. The rights that apply are the same as those which apply to libraries, resource centres or the holdings of firms or individuals. Any copying must be done either with the prior consent of the rights owner or under any of the exceptions allow ed by the law of the country of origin of the transmission.

Question 5

The test of communication to the public is whether those receiving the transmission can be identified. If they are unidentified and unknown, they are "the public".

Section 7

Question 1

Yes, we strongly support the harmonization of rules on moral rights. Harmonization is not only justified but urgently necessary.

Question 2

From our experience, we are very doubtful that problems over moral rights could be resolved by contract. We attach (Appendices 2, 3, 4 & 5) examples of the onerous contracts being imposed on our members by unscrupulous publishers.

We see no great difficulties over dubbing, subtitling etc.; but the important thing is to reinforce the position of the creator in order to protect his/her moral rights. These seem to be at particular risk from publishers who presumably want the right to modify or manipulate the work in order to re-sell it.

Question 3

No: we see no reason to make this presumption. There is no inherent reason why, because an author agrees to his/her work being stored in digital form, he/she is also agreeing "certain modifications" which might amount to derogatory treatment. Such a presumption would inexorably lead to publishers destroying moral rights.

Question 4

We are very doubtful that modifications could be defined in collective agreements, especially in the light of our experience of unfair contracts in the UK.

Question 5

Given the technical difficulties, we believe that negotiations could only succeed if carried out sector by sector.

Section 8

Question 1

One-stop shops may be desirable in theory: we are very doubtful that they will ever work in practice.

Question 2

They should become general mechanisms.

Question 3

No

Question 4

No

Question 5

Yes. There is as yet no rule of international or national law that says a rights owner must grant world-wide licences to anyone. To state otherwise would seriously erode the very notion that copyright is the right to determine who, where, when, how o ften, in what circumstances and under what conditions an original work of the human mind may be disseminated.

Question 6

Yes - the European Union should legislate for collecting societies. These should include a code of conduct as well as rules governing relations between collecting societies and their members.

Section 9

Question 1

Identifying tags - Yes

Protection against private copying - Uncertain

Question 2

Yes, in each case.

Question 3

No

Question 5

No

Question 6

Yes - though the European Union cannot and should not wait for international agreement on standards.

Question 7

The determination of works falling into the public domain is by legislation defining duration of copyright. It might be necessary to create some form of arbitration or enforcement system in order to ensure that right holders comply with the law when rights have been exhausted.

28 October, 1995

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