A very necessary legal solution
The audiovisual authors need to be equally treated by the law.
The Xalabarder investigation is the most comprehensive legal analysis made about this topic. It offers an effective solution, which can provide equity and sustainability for the audiovisual sector.
1- The proposed legislative solution complies with both the European and international obligations of the author’s right.
2- It would benefit all the parties involved in audiovisual production and exploitation, assuring a constant flow of remuneration to the authors and directly from the users.
3- It would not affect the commercial exploitation by the audiovisual works, which could have the total control of the exploitation.
4- It would assure the equitable benefit of all the audiovisual authors, without prejudice of the origin country or the audiovisual country.
The Law “Ricardo Larraín”, adopted in Chili in October 2016, allows the local audiovisual creators to get a remuneration for the theatrical exhibition, for broadcasting, for offering online availability and for a public loan of their works. The right of remuneration is managed by collective management organizations, paid by licensees and protected by the production agreement.
The audiovisual works’ authors, like the audiovisual screenwriters and directors, get exclusive rights of remuneration for their works. Anyway, they rarely get an equitable remuneration, especially for online exploitation.
This is not fair for the cerators, who are the heart of the performance of an audiovisual work. and it goes against the basic principles of the author’s right.
This risks professions and means of support in many countries. And it also undermines the economic development of a leading creative industry.
THE AGREEMENTS DO NOT GUARANTEE ANY EQUITABLE REMUNERATION FOR THE DIFFERENT EXPLOITATIONS
The investigation demonstrates that the remuneration of the audiovisual authors widely depends on the agreements signed by the audiovisual producers. In the practice, this is what prevents them from securing a fair and equitable remuneration for many reasons:
A weak position to negotiate in the process according to the producers.
A legal presumption of transfer of rights to the producer.
The unpredictability of the success of the work when signing the production agreement.
The practice of “buy-out” agreements, which require a unique payment.
An extense contractual chain, with many agents between the author and the final user of the work.
The lack of harmonization between the european and international legislation.
ONLY A FEW COUNTRIES ENSURE A REMUNERATION
Only in a few countries the authors receive a remuneration thanks to the collective negotiation agreements between organizations of creators and producers or voluntary collective management. Anyway, this continues only in very few countries, due to the fact that it requires having strong unions or collective management organizations.
⊲ Canada and USA have established collective agreements through unions, which guaranteed some remunerations for the exploitation of works.
⊲ In the EU, Belgium and France ensure incomes for the broadcasting on the basis of voluntary collective agreements through the collective management organizations.
⊲ In Argentina, the audiovisual authors are compensated based on the voluntary collective management that were consolidated through time.
LEGAL MECHANISMS TO ENSURE AN EQUITABLE REMUNERATION FOR THE CREATORS
The investigation shows that the most effective way to ensure that the audiovisual authors receive an equitable remuneration is including the rights of remuneration in the law, and entrusting them to collective management organizations.
19 from the 28 Member States of the European Union implemented systems of remuneration for the audiovisual authors, specially for the remuneration on TV.
For other types of exploitation, the remuneration of audiovisual authors depends on:
The specific rights of remuneration granted by the national laws for the author’s rights - Polonia has a number of exploitations, including the broadcasting and the theatrical exhibition.
The implementation of schemes of statuory remuneration managed by the collective management organizations (Spain or Italy).
Chili and Colombia have recently included in their national laws the remuneration through the collective management for many types of exploitation, including online uses.
An untransferible and unwaiverable right of remuneration
Based on the judgment of the existing laws and the best practices worldwide, the investigation proposes the introduction of a legal regulation that guarantees to the audiovisual authors an intransferable and unwaivable right to get an equitable remuneration.
For every act of exploitation of their works (offline and online)
As an exchange for the transference of their rights of exploitation to the producer.
Paid directly by the licensee and administered by collective management organizations.
THE INVESTIGATION HIGHLIGHTS THE IMPORTANCE OF THE FOLLOWING ELEMENTS:
A regulation mentioned in the law.
“Equitable Remuneration”: in general, a proportional remuneration based on the incomes for the service.
An unwaverable and untransferable right: Not being unwaverable and untransferable , the right of remuneration tends to be transferred to the producer under pressure.
Paid by the licensees / final distributors (not by the producer): the licensee/final distributors are the ones who operates the means by which the works are at the public’s disposal. This clarifies who is responsible for the payment to the authors.
Administered by the collective management organizations: the collective management organizations are stable associations with the knowledge and the perspective of the big economies to ensure a fair remuneration for the authors, even throughout the borders.