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

Sat Apr 25 13:23:15 CEST 2015

Op 14 apr. 2015 16:49 schreef "MARZIO VENEMAN (Ph.D. candidate)" <
max.rythmos at gmail.com>:

> Op 14 apr. 2015 04:17 schreef "Kluwer Copyright Blog" <
> noreply+feedproxy at google.com>:
>
>>     Kluwer Copyright Blog - Latest Entries
>> <http://kluwercopyrightblog.com>
>> ------------------------------
>>
>> The Next Great Copyright Act: Remember the Authors!
>> <http://feedproxy.google.com/~r/KluwerCopyrightBlogFull/~3/tYXkcYDHZUA/?utm_source=feedburner&utm_medium=email>
>>
>> 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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>> ------------------------------
>> * 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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