CONCEPT
The “Audiovisual Author´s Right” is the set of powers recognized by the law for the human people who create an audiovisual production, which has the conditions of originality as to be considered a work.
The “Author´s Right” is the set of powers recognized by the law for the human and non human people, producers, and/or financially responsible of an audiovisual production which has the conditions of originality as to be considered work.
The Bern Agreement accepts both definitions accepting the rule Lex loci protectionis set in the Section Second 14, leaving the determination of the owners (author or producer) under the competence of the local legislations.
Financial rights of the Screenwriters and Directors of Audiovisual Works
In the countries which support the recognition of the “Author’s right”, the human creators of the audiovisual work knew how to find a way of perceiving an income subject to the lack of its creation through the union agreements with the industry called “Residual Rights”.
In the countries which support the recognition of “Audiovisual Author’s Right”, the collective management societies were the ones who motivated the defense of a financial right before the empire of the local law which sets that all the rights were granted to the producer except it is otherwise established.
In these countries, there were two modalities:
-
The management society motivated its members to refuse to sign agreements without the clause of reserve that allows them to get a payment, right or remuneration.
-
The management society takes the initiative of including in the intellectual law the unwaivable right to receive a compensation.
Rights of music
Composers and Authors
Unlike audiovisual creators, music composers and authors do not have in the law the presumption of assignment and keep all their exploitation rights, with the possibility to authorize or forbid the use of their works.
The administration of these rights requires an organization that manages and controls the use of musical works, and this has caused the emergence of collective management societies.
Many authors assign all coming years for an amount of money in order to collect from their collective management societies, as is the case of music Publishers, who often buy between 25% and 100% of the rights that they later manage for them as members of the collective management societies.
Nowadays, there are companies interested in certain works that offer to buy all the rights in order to be able to assemble a catalogue and manage these works outside collective management societies, which allows such companies to grant multi-territorial author’s right or copyright licenses, significantly lowering the costs of current licenses which involve the mandatory participation of a collective management society concerning each country where the work wants to be used.
Thereof, the growing of on demand video platforms (VOD), which offer to buy all musical rights (buy-out), is now surprised by the trend of some successful singer-songwriters to sell their music.
DIFFERENT REALITIES AND CONCLUSIONS
As it can be seen in the audiovisual works, the legislations recognize the rights to the producer and, in the best scenario, when they recognize the Audiovisual Authors (screenwriters and directors), they do it with a legal recognition of a 100% transfer (buy-out), in favor of the producer.
The audiovisual “buy-out” keeps on being the search of a legal recognition of an untransferable remuneration right.
WORLD INTELLECTUAL PROPERTY ORGANIZATION - WIPO
The World Intellectual Property Organization specializes in the United Nations, created in 1967, which dedicates to foster the use and the protection of the works of the human intellect.
With its seat in Geneva, Switzerland, the organization had 193 member States. Its current General Director is Daren Tang, from Singapore, and has under his charge the administration of 26 international treaties which address different aspects of the regulation of the Intellectual Property.
The WIPO is the successor of the organs created in the XIX century to administer the Berne Convention for the Protection of the Literary and Artistics Works, from 1886, and the Paris Agreement for the Protection of the Industrial Property from 1883. Its mission is to take the initiative in the development of a well-adjusted and efficient international system of the Industrial Property, which allows innovation and creativity in benefit of all.
The organization constitutes a debate forum in which the governments organize regulations about the author’s rights to adapt them to the changing necessities of our global and digital social environment. In the same way, the organization administers international systems of presentation of applications that allow the protection and promotion of the inventions, brands and designs beyond the borders.
The member States which integrate the organization approve the strategic orientation and the activities in the annual meetings of the Assemblies. Non-gubernamental 250 organizations and intergovernmental organizations enjoy the official condition as observant.
Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention is an international treaty that establishes the protection of the author’s right about literary and artistic works. Its first text was signed on September 9th, 1886, in Berne (Switzerland). It offers the creators, authors, musicians, poets and painters, among others, the necessary means to control who uses their works and on what conditions.
The convention is based on three basic principles. First, the works originary from one of the Contracting States (that is to say, that the author is from that State or that the work has first published there), could receive the same protection in the other Contracting States.
But, if a Contracting States gives a period longer than the minimum period set by the convention, and the work stops being protected in the origin country, then the protection can be denied in the other Contracting States.
On the other side, the convention has certain regulations that determine the minimum protection conditions for the works. It refers to all the productions in the literary, scientific and artistic fields, wherever is the mode or way of expression. The following rights are the rights that must be recognized as exclusive rights of authorization: the right to translate, adapt and arrange the work; the right of interpreting dramatic, dramatic-musical and musical works in public, the right of reciting literary works in public, the right of communicating the interpretation of those works in public, diffusing them and reproducing them in some way, the right of using works as a basis for an audiovisual work; and of reproducing, distributing and interpreting or communicating in public that audiovisual work.
In addition, the convention protects the “moral rights”, which means the right of claiming the authorship of the work and refusing any deformation, mutilation or modification of the work or any other attempt against it which can cause damage to the honor or reputation of the author.
As for the validity of the protection of audiovisual works, the rule sets that the protection shall be granted for a minimum period of 50 years from the publication of that audiovisual work.
Adopted in 1886, the Berne Convention was checked in Paris (1896) and in Berlin (1908), completed in Berne in 1914 and checked again in Rome (1928), in Brussels (1948), in Stockholm (1967) and in Paris (1971), and finally, it was amended in 1979. All the states can be members of the Convention.
The instruments to ratify or to join it shall be presented to the General Director of the WIPO (World Intellectual Property Organization).
Signatory countries of the Berne Convention
