[P2P-F] Kluwer Copyright Blog - New Copyright US Act

Tue Apr 14 16:49:42 CEST 2015

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> The Next Great Copyright Act: Remember the Authors!
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> Posted: 13 Apr 2015 02:48 AM PDT
>  *by Jane Ginsburg *
>
> Columbia University School of Law <http://www.law.columbia.edu/>
>
> *This article was originally published on the Media Institute website - **see
> here <http://www.mediainstitute.org/IPI/2015/040615.php>.**  It is
> reproduced here with the kind permission of the author.*
>
> In a previous column for the Media Institute
> <http://www.mediainstitute.org/IPI/2015/021715.php>(Feb. 17, 2015), I
> urged that any copyright reform legislation that emerges from the
> preparations for "the next great copyright act" should ensure both authors'
> attribution and economic interests.  The earlier column addressed
> attribution; this column will consider remuneration, a matter that has
> lately been the subject of copyright reform in the Netherlands and France
> as well.
>
> The Anglo-American legal tradition, not generally known for solicitude
> toward the weaker party in contract negotiations, in fact has long
> recognized that authors may sell their rights for a pittance, then gaze
> forlornly on the fortune the work reaps for the author's co-contractant.
> Indeed, in the very first copyright act, the 1710 Statute of Anne,
> Parliament acceded to authors' demands to profit from the success of their
> works by providing, were the author alive at the expiration of the 14-year
> copyright term, that "the sole right shall return to the Author" for
> another 14-year period of exclusive rights (Section 11).  Congress modeled
> much of the first U.S. copyright act, of 1790, on the Statute of Anne,
> including the author's reversion right.  That right, now in the guise of an
> inalienable right to terminate contracts 35 years after the grant, has
> survived many U.S. copyright reforms, and constitutes probably the most
> significantly author-centric component of the U.S. Copyright Act.
> Unfortunately, in practice, the termination right has often proved
> difficult to exercise effectively, so for many authors, its promise may too
> often be illusory.  (Earlier columns for the Media Institute have explored
> the past and present of authors' termination rights, here
> <http://www.mediainstitute.org/IPI/2009/120809_TheSoleRight.php> and here
> <http://www.mediainstitute.org/IPI/2010/022610_TheSoleRight.php>.)
>
> A copyright-reforming Congress might modify the termination right to
> remove some of the practical impediments to its implementation, including
> the loophole that allows the parties to rescind the original agreement and
> to enter into a new one, a gambit that has the effect of starting the
> 35-year clock running anew, without necessarily substantially improving the
> original deal.  Better still, however, would be to ensure that the original
> deals provide a fair return to the authors.  The United States might follow
> the lead of several EU countries in requiring that contracts provide
> proportional remuneration (royalties, instead of a lump sum) or equitable
> remuneration for each mode of exploitation of the work.  Where the work is
> "for hire" or is subject to compulsory licensing, Congress might build on
> its own examples in the 1995 Digital Performance Right in Sound Recordings
> Act (as modified in 1998), and in the 1992 Digital Audio Recording Act, and
> set aside at least 1/2 to 2/3 of the statutory royalties for authors and
> performers (including certain employee performers).
>
> The remainder of this column will describe the recent Dutch and French
> legislation, as possible models for U.S. initiatives.
>
> *Dutch Copyright Contract Act*1
>
> Under Dutch law, like U.S. law, employers are the copyright owners of
> employee-created works.  But the Dutch version of works made for hire does
> not extend to works by freelance creators.  As to non-employee authors, the
> new copyright law announces a principle of strict interpretation of the
> scope of contracts: The grant "shall comprise only the rights that are
> stated in the deed or that necessarily derive from the nature and purpose
> of the title or the grant of the license."2  This provision confirms
> prior caselaw narrowly interpreting the scope of grants in the context of
> modes of exploitation developed after the conclusion of the contract.  In
> the United States, courts treat the scope of copyright licenses as a
> question of state law (and then reach differing conclusions3); were the
> next U.S. copyright act to federalize that issue and install a similar
> principle of strict interpretation, the outcomes of "old license/new media"
> controversies in some federal circuits could substantially change in favor
> of authors.  For example, the Second Circuit's approach, endorsing an
> interpretation "that the licensee may properly pursue any uses that *may
> reasonably be said* to fall within the medium as described in the
> license," would no longer be permissible were the U.S. copyright law to
> adopt a standard limiting the scope of the grant to "only the rights that
> are stated in the deed or that *necessarily derive* from the nature and
> purpose of the title or the grant of the license."
>
> The Dutch law contains several nonwaivable4 provisions assuring authors
> "fair compensation."  As a general rule, contracts are to stipulate fair
> compensation for grants of rights of exploitation, and the Minister of
> Education, Culture and Science is to "determine the amount of fair
> compensation for a specific sector and for a certain period of time" upon
> the "joint request of an association of makers existing in the relevant
> sector and a commercial user or an association of commercial users.  This
> request shall contain jointly agreed advice regarding fair compensation and
> a clear definition of the sector to which the request relates."5  The
> law's "bestseller clause" provides for additional compensation when "the
> agreed compensation is seriously disproportionate to the proceeds from the
> exploitation of the work," although the law does not define "seriously
> disproportionate."6  (The German copyright law has long had such a
> clause, so caselaw under that provision may provide some guidance.)  The
> law provides a further source of remuneration when the contract explicitly
> covers uses unknown at the time of contracting: The original grantee or its
> successor(s) must provide additional compensation for those new uses.7
>
> The law reverts rights to the author upon notifying the grantee, "if the
> other party to the contract does not sufficiently exploit the copyright to
> the work within a reasonable period after having concluded the contract, or
> does not sufficiently exploit the copyright after having initially
> performed acts of exploitation."8  While the reversion right may not be
> waived, the law does not define these terms.  Perhaps the dispute
> resolution committees the law establishes9 will resolve these and other
> issues that the law leaves open.
>
> *French law limitations on the scope of authors' contracts*
>
> The French Code of Intellectual Property safeguards authors against
> leonine transfers in a variety of ways.  In addition to mandating that
> publishing contracts, performance rights contracts, and audiovisual
> production contracts be in writing,10 the law further requires that each
> right granted be distinctly specified in the contract, and that the scope
> of the grant be defined with respect to its purpose, its geographic extent,
> and its duration.11  As a general rule, authors are to receive royalties,
> rather than a lump-sum payment.12  Amendments to the statutory provisions
> on publishing contracts, introduced at the end of 2014, further detail
> authors' rights in print and digital editions of literary works.  These
> modifications seek to ensure that publishers will in fact exercise the
> rights that authors grant them, and will fairly account to authors for the
> fruits of those exploitations.  Failure to publish the work within a
> certain time, or to pursue the exploitation of the rights in a consistent
> manner ("exploitation permanente et suivie"), or to reissue a book that has
> gone out of print, will result in reversion of print or electronic rights
> to the author.13
>
> The new provisions require the grant to distinguish print from digital
> editions, and impose additional author protections with respect to the
> latter.  Notably, the contract must guarantee authors just and fair
> remuneration for all the revenues deriving from the commercialization and
> dissemination of digital editions.14  In addition, contracts granting
> electronic rights must include a clause providing for periodic review of
> the economic conditions of the grant;15 an accord between associations of
> authors and of publishers will determine the frequency of the reviews and
> will provide guidelines for dispute resolution.16  The law also promotes
> the development of digital editions because a grantee who fails to
> disseminate a digital edition within the time set out in an accord between
> associations of authors and of publishers will lose those rights back to
> the author. 17  Moreover, as to contracts concluded before the law's
> effective date, the law empowers authors two years thereafter to demand
> that the publisher produce a digital edition; the publisher's failure to do
> so within three months following proper notification results in reversion
> of the digital rights to the author.18
>
> _____________________
>
> 1. Bill No. 33 308.  Adopted by the Dutch House of Representatives on Feb.
> 12, 2015.  According to Prof. Dirk Visser, it is expected that the Dutch
> Senate will adopt the bill in the spring of 2015 and that the changes to
> copyright contract law will enter into force on July 1, 2015.  Thanks to
> the law firm of Visser Schaap & Kreijger for the English translation of the
> Act.  Available at
> http://www.ipmc.nl/en/topics/new-copyright-contract-law-netherlands. And
> many thanks to Prof. Dirk Visser for responding to my questions regarding
> the new Dutch law.
>
> 2.  Art. 1A, modifying Art. 2 of the Dutch copyright law.
>
> 3.  Compare *Cohen v. Paramount Pictures*, 845 F.2d 851 (9th Cir. 1988)
> with *Boosey & Hawkes v. Disney*, 145 F.3d 481 (2d Cir. 1998) (both
> interpreting the scope of synchronization licenses and reaching different
> conclusions as to the extension of the licenses to cover distribution of
> videocassettes to the public).
>
> 4.  Dutch law on authors' contracts, Art. 25h(1).
>
> 5.  *Id*., Art. 25c.
>
> 6.  *Id*., Art. 25d.
>
> 7.  *Id*., Art. 25c(6).
>
> 8.   *Id*., Art. 25e.
>
> 9.  *Id*., Art. 25g.
>
> 10.   France, Code of Intellectual Property, Art. L131-2.  U.S. copyright
> law requires that the grant of any exclusive right must be in writing and
> signed by the grantor, 17 U.S.C. Sec. 204(a).
>
> 11.   *Id*., Art. L131-3.  The author may grant rights for future modes
> of exploitation unknown at the time of the contract, but such a grant must
> be explicit, and must provide for a share in the profits of the new form of
> exploitation.  *Id*., Art. L131-6.
>
> 12.  *Id*., Art. L131-4.
>
> 13.  *Id*., Art. 132-17-1-5 (*see*
> http://www.legifrance.gouv.fr/affichCode.do;jsessionid=2D013356C523C269C96912FA8B0AE456.tpdjo04v_3?idSectionTA=LEGISCTA000029759371&cidTexte=LEGITEXT000006069414&dateTexte=20150208
> ).
>
> 14.  *Id*., Art. 132-17-6.
>
> 15. * Id*., Art. L.132-17-7.
>
> 16.  *Id*., Art. L. 132-17-8(8).
>
> 17.  *Id*., Art. L. 132-17-5.
>
> 18.  Ordonnance n° 2014-1348 of Nov. 2, 2014, transitional provisions,
> Art. 9.  Arts. 11 and 12 provide for application of other author
> protections to contracts concluded before the law's effective date.
>
>
> ------------------------------
> * Leave a comment on The Next Great Copyright Act: Remember the Authors!
> <http://kluwercopyrightblog.com/2015/04/13/the-next-great-copyright-act-remember-the-authors/#respond>
> ------------------------------
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> ------------------------------
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