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Issues

Copyright and the publisher

To the reader: Why should the publishers be heard?

This pamphlet is about copyright - the cornerstone of the publishing business. It is about ensuring that European publishers, who for centuries have provided millions of people with information tailored to their needs, can evolve with new technology.

It is about survival and jobs, but even more important, it is about high quality multimedia content in our information society.

The production of high quality content demands both experience and financial resources. Publishers and other present day media employers have both.

We live in a world of time compression. At the time of writing this, one normal year is said to equal two months in the Internet world.

In such an environment the acquisition of copyrights has to be simplified. Publishers have to be able to rely on the fact that they have a single effective way of clearing copyrights once and for all - by offering employment. 

Those who worry about the production of European-originated high quality content, should read this pamphlet and act upon it. New information services and products have been very slow to evolve in Europe. This pamphlet explains why and what can be done to change the situation.

It represents an attempt to find a satisfactory solution to a fundamental copyright issue - and thereby ensure the future competitiveness of European content production.

It takes into account the differences in European copyright systems and tries to strike a balance between them and the most urgent needs of European publishers.

It introduces a new concept of copyright to employment-related works, which would simplify the future acquisition and management of multimedia copyrights and ensure that effective safeguards are taken against copyright violations.

Even though it is not a solution to all the problems faced by pub-lishers today, it is a step in the right direction. A step that would benefit the information society as a whole.

Copyright: What is copyright? 

Copyright is an intellectual property right that protects the economic and moral rights of rights holders.

• reproduction
• paternity
• making available 
• integrity to the public
  (distribution, rental, communication to the public etc.)

Publishers: What is the role of publishers? 

Publishers have a vital role to play in the information society.

• They create and deliver high quality multimedia content.
• Their editorial, marketing and distribution skills provide a bridge between the creative community and consumers.

What has changed in general?

The technological revolution.

• New forms of production and distribution.
• New forms of reproduction and communication to the public.
• An integrated information society and a new environment.

A need for a new approach to copyright.

What has changed for publishers?

Publishers are adapting to meet the changing needs of consumers.

• Content has become independent of the medium by which it is delivered.
• Publishers provide their customers with added-value products and services in the form (print, CD-ROM and on-line) they require.
• Publishers must make significant investments to meet these needs in an uncertain world. But they face rising production and distribution costs, and erosion of their advertising base.

What should change in order to foster investment?

Like any business, publishers must be able to:

• use the material for which they have paid to* deliver the products and services to their customers in the form and delivery method they require.

If publishers cannot do this with certainty, they cannot justify the necessary investment. This means that everyone - the creator, the publisher and the consumer - loses out.

Therefore it is essential that publishers have a 'future-proof' right to use (and re-use) the material created by their employees in all media - i.e. undisputed economic rights to employment-related works.

Who is protected? - one approach to copyright:

In the United States Copyright is by law vested in the individual creator OR the employer/commissioning party, if the work is created for hire, i.e. at the risk of the employer or the party commissioning the work. This is known as the work-for-hire concept. In some countries in Europe (e.g. the United Kingdom and the Netherlands) this concept has been adopted in relation to employee-created works.

In many European countries copyright is still vested only in the individual creator, 
irrespective of,  whether the work is created under a regular employment contract or for hire at the employer's/commissioning party's risk, OR whether the financial risk is fully or partially borne by the individual creator.

However, copyright law has already been harmonized throughout the EU for software programs. Employers own the copyright in relation to programs created by employees.

What happens if no joint approach is adopted?

If no joint approach to copyright in relation to works created during employment is adopted, all attempts at harmonization on an EU-level will only

• create confusion and greater differences between European publishers on national levels and thereby
• disturb the proper functioning of the Internal Market and
• give non-European publishers, who enjoy full work-for-hire rights, a superior competitive advantage.

What disadvantages does the present situation bring?

When copyrights are vested in the employees, their employers face:

• cumbersome and costly copyright clearance processes and multiple payments;
• restricted availability and use of old material; and
• uncertainty as to whether all the necessary rights have been cleared before economic risks are taken.

Many European publishers are discouraged from investing in new products and services by an endless circle of securing rights for everyday business development over and over again from employees that have already been remunerated.

At the same time, US publishers, among others, are free to develop their business without any such hindrances, as new copyrights are automatically vested in the employer in work-for-hire countries.

What should be done?

As the objective is simplification, the minimum requirement is that

• all employers be granted, by law, adequate copyright to works created by their employees during employment without
  • reducing any protection currently enjoyed under national legislation or
  • changing already existing agreements 

How can these objectives be achieved?

A new concept of employment-related copyright

• Economic rights (for both known and future uses) should be vested in the employer.

Future rights can not be excluded. Publishers must have adequate control over their copyrights to be able to adapt effectively to changes in their environment without asking for the consent of each employee.

Employees receive full compensation for their time and effort in the form of salaries, holidays, sick leave, pension, etc. Unlike most independent creators, composers, writers, freelancers, etc., employees do not bear the economic risk of the success or failure of their works.

• Moral rights of authors will not be affected and will remain, therefore, subject to existing national solutions. Moral rights may be waivable by contract even when originally vested in the employee.

The PROs of publisher ownership

• Consumers will be guaranteed a diverse supply of European-produced, high quality content.
• Society will benefit from easier access to employment-related material, as consent to reuse can be sought from one known source - the publisher.
• Individual creators will benefit from the fact that publishers, as copyright holders of employment-related works, would have both the incentive and the resources to fight copyright violations effectively.
• European publishers will be able to develop high quality multimedia content on reasonably competitive terms com-pared to their US counterparts.
• Employees will benefit in the form of new job opportunities and better job security.

The CONs of publisher ownership

The fact that employers would be able to make full use of works created during employment, would take nothing away from the employees. The overall value of their work is reflected in their salaries and benefits.

It is not possible, however, to enjoy full employment benefits and have the right to compete with one's employer at the same time.

Putting the information society to perspective 

Even today, there is still no solution more cost-effective and efficient for communicating the amount of news, information and entertainment contained in a newspaper or magazine than by printing it, distributing it by road and rail and selling it for a few ECUs. This may not always be the case, and Europe's newspaper and magazine publishers as well as book publishers are already facing choices that will affect the future of their businesses, their readers and their employees.

Every day publishers have to make decisions about how and when to enter new markets as well as whether and when to take advantage of digital technology through on-line services and new forms of off-line delivery such as CD-ROM.

These choices involve major investment decisions. Publishers must be able to continue to meet consumers' needs, to become more competitive and to contribute to employment and economic growth.

In other words publishers must be given ownership of copyright to employment-related works. We have tried to answer the whys, whats and hows. What remains is when - when will European publishers enjoy the same rights as their US competitors?

For this we turn to our readers - let it be now.