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"Creativity and Intellectual Property Rights: Evolving Scenarios and Perspectives" July 12 - 14, 1998, Vienna (Panel on Moral Rights)

Angela C. Mills, Executive Director, European Publishers Council (EPC)

Introduction

The European Publishers Council is a high level group of some 30 Chairman and Chief Executives of Europe's media corporations actively involved in multimedia markets. They span newspaper, magazine, journal and on-line database publishing. Many members of the EPC also have significant interests in commercial television and radio but I'm going to concentrate today on the publishing enterprise.

The publishing industry today

To put what I have to say about protecting moral rights into context, I'd like to give you a quick publishing industry scene-setter:

• Growth: Together with other sectors of the content industries, publishing is a growing and vital part of Europe's economy.
• International: Increasingly, publishing is a global business so our relevant market is often not confined to the EU.
• The internet: Driven by the Web, we are one of the leading edge industries in the emerging electronic-commerce marketplace.
• On line: In a world, which is drowning in data, the publisher is deploying his traditional editorial production and distribution skills online, in order to deliver added-value to the consumer.
• Working Together: Publishing is a collaborative effort between journalists, photographers, editors, production staff through to delivery to consumers who look to the titles, - the brands - in making a choice. These brands express the quality and style which the consumer looks for when making that choice.
• Competition: Publishing is a hugely competitive business (particularly against U.S. companies), with ever-increasing pressures on margins.
• Nevertheless, publishing remains vibrant, dynamic and provides jobs for many thousands of employees in the EU and will continue to do so for many a year.

Differences in moral rights regimes

So, to moral rights. How do they really fit into the publishing enterprise. As we all know, there are differences between the moral regimes in the EU, but I do not want to enter a strictly legal debate because this isn't the whole story (and particularly because I'm not a lawyer!).

The point I want to make is that, notwithstanding differences in moral rights regimes, in practice, contractual or voluntary solutions are found within the industry - to deal with moral rights in every country in the EU.

For example, attribution is normally given in the UK, even though the right to be identified as author does not apply in relation to a work made for the purpose of reporting current events. In addition, publishers generally require approval of any changes when syndicating their material to third parties. These are examples of workable, voluntary solutions which, in practice, deal adequately with the issue and as a result, newspapers and magazines flourish throughout the EU. Journalists and photographers understand that practical solutions have to be found to make reasonable changes because of the fast-moving, ephemeral world in which the Press operates.

Does this position change if the newspaper is made available via the web or any other digital service? The answer is "no". It's true that once a work is in digital form, the potential for manipulation of that work becomes great. But unauthorised manipulation can take place irrespective of who may be identified as the author of the work and/or as the owner of the copyright in that work. It is for precisely that reason that technical measures are required to control access and use of copyright material to prevent abuse.

The issue of authenticity

Let's look at the argument advanced by the authors' representatives in favour of harmonisation on the basis of unwaivable moral rights within the Community Basically, the argument seems to run as follows:

• Firstly, as the world goes increasingly online, and material becomes available in digital form, moral rights are the basis for the consumer's guarantee that what he or she is seeing or hearing is coming from a trusted source - the author - of course!
• Secondly, it is argued that the unequal bargaining power of the wicked publisher on the one hand and the poor author on the other means that these rights must be unwaivable.

EPC's response

The first point to make is that as far as I can see, there's no 'single market' argument being made on behalf of authors. This is because, the difference between the moral rights regimes is not, in practice, causing any obstruction or distortion to the free movement of goods or services. This was the conclusion drawn from the Commission's Hearing on 1993 and we are not aware of evidence from the authors representatives that would change that position. Instead, the authors are arguing for stronger, unwaivable moral rights and almost uniquely from the UK where the regime is based on different traditions.

The argument rests on this rather philosophical link between moral rights and the 'authenticity' of a work. Now, although not a single market issue, it is nevertheless important to address the very fundamental issues raised by the authors' representatives because they go to the heart of the role of the Press and how it functions.

Let's look for a moment at the fundamental characteristics of the press. These apply to both the print product and its online equivalent:

• A newspaper, journal or magazine is a collective work. With no disrespect to any journalist or photographer who may contribute to a newspaper, the whole is greater than the sum of the parts. It is not like a painting or novel where the author's personality is directly and uniquely reflected in the work, where there is a spiritual bond, an essential inseparability between author and work. Rather less romantically, there is no individual creator in the case of a newspaper, whether in print or online. So the unwaivable 'moral rights' argument simply breaks down.
• While we have no argument with the concept of protecting moral rights, they should at the very least be waivable in the sense that, through contracts of employment with publishers, employees consent to sub-editing of their work.
• Of course, authors should be able to negotiate strong moral rights protection if it is important to them. Consumers of newspapers, on the other hand, must be able to place their faith in the editor as well as the individual contributors. Equally consumers of art, novels and similar individual works need to know that they are looking at a faithful rendition of the creators' work. But, any strengthening of moral rights would, in the case of newspapers at least, in our view undermine the editor's relationship with his consumers. And let me repeat, practical solutions are found to defending our contributors' moral rights in every country in the EU.
• Whatever values a reader may want in a newspaper, be it in-depth analysis, gossip or a particular political leaning, these values are associated in the reader's mind with the brand and reputation of the newspaper as a whole and not usually with any individual contributor, although there are some notable exceptions.
• Generally, it is the contributor who gains authority from the paper's reputation and not the other way round.
• As I have already said, journalists and photographers do generally receive a by-line for their stories regardless of the moral rights regime in their country.
• However, because the editor and publisher carry legal responsibility for the content of the newspaper, the final control over the published work must rest with the Editor. In that context, it is recognised throughout the industry that sub-editing is a central part of the editorial process.
• And, don't forget, it's the publisher, on behalf of all the contributors, who defends and protects all the rights. It is the publisher who is prepared to bear the cost of pursuing copyright infringements or accusations of defamation.
• So I would argue that certainly in the case of Press, the consumer's guarantee of authenticity lies within the collective work and not within its constituent elements.

Moral rights and economic rights

In reality, the authors' arguments in favour of unwaivable moral rights may really be about economic rights. Let's face it, if moral rights are unwaivable, then the issue of modifying a work becomes a bargaining counter in any contract with a publisher - and here we are talking about money not just principles.

Well, if we are really debating economic rights, then we also need to focus on the issue of the ownership of the economic rights in works created by employees during the course of their employment. As we know, the position throughout Europe is, with few exceptions, that those rights vest in the employee. This is despite the fact that the risks and investment associated with the creation of the work are borne by the employer. I can point to a number of cases where this situation is inhibiting the production of new media services.

That is why EPC strongly believes that the economic rights in employee-created works, particularly in the case of collective works like newspapers, should belong to the publisher. This is entirely consistent with the 'acquis communautaire' in the case of the Software Directive and the 'sui generis' right under the Database Directive.

Conclusions

As far as the Press is concerned, we do not accept that the differences in moral rights regimes have a direct and negative effect on the establishment and functioning of the internal market for Press goods and services and, in particular, on the freedom to provide press goods and services. This was the conclusion of the Commission's Hearing in 1993 and, despite the appearance of the Web since then and the growth of other electronic products and services, we do not see any reason for that conclusion to be changed.

• We believe that imposing a moral rights regime throughout all member states on the basis of unwaivable rights would undermine the role and nature of collective works such as newspapers where editorial responsibility must go hand in hand with editorial control.
• Community intervention would be in conflict with international treaty provisions - Article 9(1) of TRIPS makes it clear that TRIPS members have no obligations under Article 6bis of the Berne Convention (which deals with moral rights). Also, the Berne Convention itself (Article 1(8) provides that the Convention does not apply to "news of the day or to miscellaneous facts having the character of mere items of press information").
• In any case, regardless of whether or not moral rights are enshrined in law, as a matter of practice, those rights are generally protected and acknowledged by publishers.
• Finally, publishers need to be free to agree, through individual contract, which rights they do or do not buy and to agree what level of moral rights protection is appropriate and practical in the publishing enterprise. Experience has shown this can and does work in practice and there is no evidence this arrangement has any negative impact on either creators or consumers.

Angela Mills - European Publishers Council (July 14 1998)