Contractual arrangements applicable to creators : law and practice of se lected Member States
societies have sometimes face d opposition of broadcasters or cable operators to pay
them the required royalties for public transmi ssion of the works, on the ground that the
rights of remuneration have been transferred to the producers and could not be
exercised by the societies in charge of audiovisual authors. Thus, authors might
ultimately be deprived of their remuneration , if producers do not enforce their rights
against such operators or do not transfer th em their share of the revenues they get from
such operators.
Member States have solved this issue different ly, by law or case law, or have not even
addressed the issue. One soluti on that would both preserve the presumption of transfer
of rights of exploitation to the benefit of the producer of audiovis ual works and guarantee
some remuneration to authors for secondary exploitations of thei r works would be to
organise cohabitation, such as in France, between the tr ansfer of exclusive rights of
exploitation to producers and collective mana gement of remunerations. The presumption
of transfer of rights in au diovisual rights would merit so me European harmonisation and
definition of its proper scope, its relationship with remunerations of authors and its legal
opposability to third parties.
Another issue is the possibility for authors who are members of a collective society to
individually exercise their righ ts to authorise some uses of their works. One example is
the possibility for authors to apply an op en access license (e.g. a Creative Commons
license) to some of their works. CMOs gene rally oppose that individual licensing by
arguing that authors have lost their exploitation rights to th e sole benefit of the society.
This has been perceived as an undue limitation of the freedom to contract of authors and
as an impairment of their capacity to enga ge in self-promotion, open access movements
or collaborative creation . A more flexible approach of collective man agement of copyright
including some manoeuvre for dual licensing, as tested by a number of CMOs, could
prove to benefit creators and creative proc ess, without adverse e ffects on collective
management.
The existing contractual protection of auth ors, as included in copyright law and,
indirectly, in general contract law, appears not to be sufficient or effe ctive to secure a fair
remuneration to authors or address so me unfair contractual provisions.
Besides the causes that are ge nerally put forward to explain this unbalance and lack of
protection, new elements have emerged. Firstly, the in creasingly dynamic markets for
exploitation, notably digital ma rkets, lead to th e quick obso lescence of a contract agreed
upon at any point in time. Secondly, due to the multiplicity of forms of exploitation and of
undertakings exploiting works in the current environment, the contract between the
publisher/producer and the author is only but one element in a web of contractual
relationships and revenues streams. The exampl es given in this study of the difficulty to
secure a fair remuneration in di gital exploitations, of the prac tice of buy-out contracts, of
the invocation of the presumpt ion of transfer, of the refusal to pay CMOs remuneration
for authors of audiovisual works, are illu strative of the shifting power among the
stakeholders to the detriment of creators. A last factor is the cross-border dimension that
increasingly characterises the exploitation an d use of works, which is likely to enhance
the discrepancies of the contractual protecti on of authors depending on the level of
protection they enjoy in each of the countries involved.
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