Op 14 apr. 2015 16:49 schreef "MARZIO VENEMAN (Ph.D. candidate)" < [email protected]>:
> 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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