Op 14 apr. 2015 04:17 schreef "Kluwer Copyright Blog" < [email protected]>:
> 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> > ------------------------------ > More from our authors: [image: Guide To Copyright in France. Business, > Internet and Litigation] > <http://www.kluwerlaw.com/Catalogue/titleinfo.htm?ProdID=9041152873&name=Guide-To-Copyright-in-France.-Business%2c-Internet-and-Litigation> > Guide > To Copyright in France. 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