- What rights do I have as an author?
- What is the role of a society of authors?
- I have been told that certain producers propose contracts negociated directly with the authors. What type of contracts are they and what is the attitude of societies of authors to them?
- I was told I can use works free of charge if I change them.
- How long are works protected?
- Reproduction rights and performance rights?
What rights do I have as an author?
There are two sides to author's rights: moral rights and proprietary rights.
Moral rights are expressed as four prerogatives:
- the right to the name, i.e. the author's right to demand that his name and the nature of his work be announced clearly and publicly.
- the right to respect for the work, i.e. the author's right to refuse permission for his work to be modified, distorted, altered etc.
- the right of disclosure, i.e. the author's right to decide when the work is deemed complete.
- the right to rescind, i.e. the author's right to withdraw one of his works from the public domain.
Moral rights are not accessible to any outside party: as the author, you alone control these rights, even in a hypothetical situation where you may have sold these rights to a third party.
Under French law, literary and artistic property is defined in very flexible terms.
The law divides uses into two main categories: performance rights and reproduction rights. These broad categories are sufficiently general to cover the new methods of use which have been introduced and even more which are still appearing with new technology. The legislation on authors' rights has thus encompassed photography, films, radio and television without any need for major changes in the texts of the law.
The same now applies in the digital age with interactivity and multimedia.
Whether the works in question have been designed for use on a medium, e.g. CD-ROM or game cartridges, or for use on a network such as the Internet, the two concepts of performance and reproduction provide adequate coverage for determining authors' rights.
One of the key principles of authors' rights is that the author is entitled to a "proportional share in the income related to the sale or use" of the work (Art. L 131-4, § 1 from the French legal code on intellectual property).
Only too often, unfortunately, this principle is overlooked.
There have been cases where certain ill-informed authors have signed contracts selling their rights in exchange for a single flat fee.
Or even worse, there are cases where the author's position as a salaried worker has been cited as an argument for him not to receive any proportional payment whatsoever.
Such situations breach the legal provisions of public law, in other words, compulsory provisions, and such situations may be invalidated by a judge, at any time, and specifically at the request of the author.
The author may obtain retroactive payment of rights not paid since the initial use. Any producer who does not respect this basic principle of law is therefore in a highly tenuous position legally.
While the law does have provisions for payment of flat fees, this is only as an exception applying when a set number of stipulated conditions have been fulfilled (Art. L 131-4, § 2 et seq., French legal code on intellectual property).
At the judge's discretion, these provisions may be interpreted as restrictions.
One of the most common situations is the argument that "the contribution of the author does not constitute one of the key elements of the intellectual creation of the work." It is not easy to decide on what a key element is; this assumes that it is possible to compare the respective proportional importance of the different artistic contributions.
Sometimes contracts concluded with authors define the multimedia work created as "software" or as a "collective work".
In both cases, such references are likely to be extremely unfavorable to authors as their effect is to dispossess the authors of a substantial part of their rights and specifically of the benefit of proportional remuneration. It is therefore advisable to show caution and request advice before making any commitment.
To be sure that you are fully acquainted with your rights, we suggest you obtain a copy of the publication containing the relevant laws on authors' rights, i.e. the "Code de la propriété intellectuelle", which is available from the "Direction des Journaux Officiels".
Direction des Journaux Officiels
26, rue Desaix
75727 Paris cedex 15.
Tel: 01 40 58 78 78
Télécopie: 01 45 79 17 84
Price: 110 French francs
What is the role of a society of authors?
It is a multi-faceted role :
1) To give authorization for works to be made accessible to the public via the networks and to collect and distribute the rights to the authors.
It is often materially impossible for one author in isolation to keep track of the use of his work, to find out who has used it and where, to discover how many copies have been made and distributed etc. By handing over his rights to a society of authors, it then becomes possible for him to enforce the rights which are recognized by law.
2) Economic considerations
An author in isolation is often not in a position to obtain a satisfactory level of payment. The collective force of a single organization is the only way for authors to ensure that rights are paid to them by the users who themselves are becoming more concentrated.
3) Advantages for Users
The centralization of rights under collective administration societies is also an advantage for the producers and broadcasters, allowing them to have access to an extremely large and varied repertoire with one single authorization.
One of the duties of authors' societies is to check the validity of figures supplied by the users and thus guarantee total transparency to authors. There are, for example, checks on the number of copies of recordings manufactured and distributed.
For the future, to deal with new information and communication technology (including the Internet), societies of authors are coordinating their activities under CISAC.
Societies of authors, in association with rights-holders (performing artists and producers) and parties working in the communications industry have been involved in work with ISO in the field of digital compression of still images (JPEG) and of motion pictures (MPEG). The ultimate purpose is to have every digitized work marked with an identifying code as a type of "number plate". This identification will be referenced in data bases on rights-holders and will make it possible to track down illicit uses, and also to automatically allocate payments received as rights for authorized uses.
I have been told that certain producers propose contracts negotiated directly with the authors. What type of contracts are they and what is the attitude of societies of authors to them?
There are two cases, depending on the situation of the author:
- either he is not a member of a society of authors
- or he has joined one.
In the first case, the author alone decides on his rights, negotiating the terms of the contract with the producer.
In the second case, he has handed over exclusive control of his rights to his society of authors. This means granting the society responsibility for authorizing reproductions and broadcasts of the author's works, for receiving payment of rights and for distributing them to the author.
As this is an exclusive agreement, only societies of authors can administer these rights. The author thus bars himself from issuing authorizations to producers or broadcasters, whether for existing works or new works commissioned.
In practice, as a multimedia program is a complex work requiring contributions from numerous authors (as is also the case in television), the need for a commission contract is essential. The contract is concluded between the author and the producer and details a number of conditions, such as the date on which the work is due, the date of release and a number of technical specifications. It often has provisions for payment of a commission bonus (or a bonus for use of an unpublished original work); this is usually a lump sum, deemed to be payment for the time spent creating the work, the expenses involved and, sometimes, the reputation of the author.
The payment of this bonus must in no way interfere with any collective administration of authors' rights. As the author is a member of a society, the contract cannot include a clause covering the sale of the author's rights to the producer. Conversely, it must include a reservation clause noting the exclusive rights granted to the society of authors.
To help both authors and producers draw up contracts appropriate to the status of the author and the rights granted to the societies of authors, ADAGP, SACD, SACEM and SCAM have standard models for commission contracts available.
We urge authors who are members of a society to consult their society, so as to avoid signing contracts which may be to their disadvantage and to make sure they are complying with the exclusive powers granted to the society.
I was told I can use works free of charge if I change them.
False. Authors always retain special personal rights to their work (non-pecuniary copyright). They can, for example, refuse to have their work modified or adapted. Any changes or adaptation require prior authorization.
In practice, for published music works, the music publisher is usually responsible for granting such authorizations. Users should contact the publisher, following the standard practice for sheet music or lyrics.
How long are works protected?
Under French copyright law covering authors' rights, works are protected for the life of the author plus 70 years after the death of the author or the last co-author. There are, however, special cases, with extensions for the war years, authors killed in the war and posthumous works.
If in doubt, consult the relevant authors' societies.
For neighboring rights, the period of protection is 50 years from the date of publication of the record or video (See societies covering owners of neighboring rights)
Reproduction rights and performance rights?
The Web page you are designing will probably include various elements (text, images, sound etc.) that you may have created yourself or which you may want to borrow from others.
Some of these are works protected by copyright. Before you can use them, you must obtain authorization from the authors or the societies representing them.
The license covers the performing rights and reproduction rights which are due to all authors.
Reproduction rights apply immediately a work is made as a material, physical copy. Storing it on a server means copying it onto a hard drive and therefore reproducing it. Downloading it onto a computer, in the random access memory or the hard drive, is also copying, i.e. reproduction.
Users must obtain You need to get an authorization for such copying, by contacting the right-owners or the authors' society representing them.
Any work made available to the public on the Web (even on a private Web page) constitutes a public communication and performance of a work, therefore requiring authorization.
In addition to the original authors, there are other rights-holders, e.g. record and video producers, broadcasters (radio and TV stations) and performing artists. They are entitled to what is called "neighboring rights". Here again, the required authorizations need to be obtained from the rights holders (see "useful links").