EC RENTAL DIRECTIVES
22 November 1994
For people in the film and television industry a sense of concern is growing over the potential impact of the EC Directives on Copyright Term and Rental Rights.
Both directives are set to change the complexion of the industry in substantial ways, with the Copyright Term Directive not only extending the period of protection for defined works from 50 to 70 years, but also using as its framework the continental Droit D'auteur system.
In opposition to the common law copyright system, where copyright vests in the person who oversees the creation of the film (producer or production company), the Droit D'auteur system makes a strong connection between the creative input of contributors to a film and their share in the copyright of the finished product.
This takes matters further than the current position under the Copyright, Designs and Patents Act 1988, where authors of underlying works (such as a screenwriter or a composer) are confined to copyright in their individual contributions with (waivable) moral rights being accorded to them in their work.
The Rental Rights Directive takes a similar path, with rights in and to recorded copies of the work vested in the film's most important creative contributors.
Much concern lies over the steps the UK will take to implement the directives. But whatever identity they do take, they will bear the stamp of their European parentage and this will mark the anticipated sea-change in UK copyright law.
The commonly held view is there is going to be some upheaval, but that this will be met by a re-drafting of contract assignment terms and a wider collection of rights being passed into the hands of the ultimate producer.
It is this aspect of re-drafting which has been the critical factor for most lawyers in this field, especially in relation to Article 4(2) of the Rental Directive, which gives an unwaivable right to equitable remuneration from the proceeds of rentals to authors and performers. The inability of the author or performer, on the face of the directive, to waive the right for a lump sum creates novel problems in UK law, especially since the rental right has been sectioned into a (waivable) authorisation right and the (unwaivable) remuneration right.
The Copyright Directive echoes this. It uses French law as the template for the pool of persons to be designated as co-authors (a substantial list).
Lawyers who wish to keep track of the progress of rights must follow the fate of this bank of co-authors, since it is only on the death of the last survivor that the 70 year period of copyright will engage. This difficult process of administration may necessitate a new authors' society (including all those within the directive), to be set up in tandem with one to collect the remuneration from rental rights. It is also possible that the individual producer will not have to bear the rental remuneration at all.
In the face of this doubt and with the possibility of a web of supervisory work, some firms and artists' agents have negotiated a sum at the time of agreeing the initial engagement fee to reflect an equitable return on prospective rentals.
With EC jurisprudence underpinning both directives, however, it will have to be Parliament or the EC which comes up with the full answer.
One thing is clear though, a leitmotif in both directives is the concept of film as a tissue woven of several creative strands rather than a commercial entity in he hands of the producer.
Anthony Mosawi is a solicitor with Brown Cooper.
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