UK: Publishing In Europe: Freelancers, Copyright And The Information Society

Last Updated: 27 February 2002
Article by Les Christy

Co-written by Susannah Kendall

Introduction

Much has been written recently about the harmonisation of copyright laws throughout Europe. However there are areas where significant differences exist between the common and civil law jurisdictions of Europe. One such area relates to the exploitation of works created by freelance writers. This article examines the different ways in which freelancers are treated under the two systems and considers what clues can be gleaned in relation to future developments in this area. The focus is primarily directed towards copyright in 'literary works' although identical or similar issues arise in respect of other works used in publications, in particular photographs and other visual works.

The major common law jurisdictions of Europe, namely the United Kingdom ('UK') and Ireland, focus on the economic interests conferred by copyright and classify copyright as a property right in which rights of ownership and exploitation are freely transmissible. The civil jurisdictions of continental Europe approach the matter from an entirely different perspective. In continental countries intellectual property is regarded as the most sacred, unchallengable and personal of all properties - an extension of the personality of the author. Accordingly, continental legislation is cast in terms of 'author's rights' (droit d'auteur) which include not only the economic rights of exploitation but also moral rights, personal to the author, which are retained even if the economic rights have been transferred. The key moral rights provided in civil law jurisdictions are the right to determine whether and how a work is to be published (publication right), recognition of authorship (paternity right) and to prohibit distortion of the author's work (integrity right).

Harmonisation of laws in Europe

Over the past decade harmonising legislation in the form of Directives to the Member States issued by the European Union are shifting the copyright law of the common law jurisdictions closer to the civil position. In this respect the most recent and far-reaching development dealing with copyright in the digital age, the Directive on Copyright in the Information Society, has confirmed that copyright law in Europe is firmly based on the continental concept of 'author's rights'.

The EU approach

The approach of the EU to harmonisation of copyright is fundamentally a civil law, continental approach - incorportating not only economic considerations but the view that copyright is an essential element of the cultural policy of the EU. Manifestations of this approach can be seen in the wording of Directives concerning copyright, for example the description in the Term Directive of the type of photograph that will qualify for copyright protection as a photograph which is the author's own intellectual creation reflecting his personality, and similarly the requirement in the Software Directive that computer programs be original in the sense of being the author's own intellectual creation. On the economic front copyright is viewed as more of a worker's right than a property right – the exploitation rights belong to the author not because he is the owner of the work but because it constitutes the fruits of his labour and that labour must provide him with an adequate means for a living. On the cultural side, the institutions of the EU are entitled to and do encourage cultural and linguistic diversity. The latter aim is considered by the EU to be supported by existing continental laws concerning the author's moral rights which is why such rights are progressively being enacted in the common law jurisidictions.

Copyrights in published works

Publishers operating in Europe require a working knowledge of the applicable domestic laws under which they operate and the relevant EU laws including the Database Directive and the Digital Copyright Directive (considered in more detail below).

The key copyright issues facing editors, journalists and other persons involved with the content of newspapers, magazines and periodicals concern the ownership of individual contributions and the rights to use and re-use such content in various formats. Since 1995 most European newspaper publishers have developed significant digital products (both off-line and on-line) of their own. In addition they usually have syndication deals for the use of their content in other territories (necessarily permitting translations and editorial changes) and for the use of that content in third-party databases. Consequently the importance of ensuring that copyright issues concerning content has been dealt with adequately has emerged as a fundamental issue.

The production of newspapers, magazines and periodicals generates a number of distinct copyright works. Using the UK as an illustration, newspapers, magazines and periodicals are 'collective works' i.e. works in which there are distinct contributions by different authors. A collective work may contain or result in a number of individual copyright works including:

  • the individual contributions from journalists/authors;
  • the newspaper or periodical, as a whole, as a 'compilation';
  • databases consisting of a collection of independent works where the selection or arrangement of the contents of the database represents the author's own intellectual creation;
  • the typographical arrangement of a published edition of a literary work.

In addition to these various issues over ownership of copyrights across the Member States must be added the effect of moral rights. Having regard to European copyright laws, electronic publishing raises these key issues for publishers and contributors alike:

  • ownership of copyright
  • the effect of employment on ownership of copyright
  • restrictions on transmission of copyrights
  • specific provisions dealing with publishing agreements
  • specific provisions dealing with exploitation in digital media
  • moral rights and restrictions on waiver

Ownership

In every jurisdiction the first owner of copyright, subject to the question of works created in the course of employment (see below), is the author of the work.

The general principle of copyright law in continental Europe is that only natural persons can be authors and therefore legislation may specify which works may be owned by legal persons (e.g. in France a newspaper is regarded as a 'collective work' and the publisher is specifically entitled to the author's rights in such publications). The recognition of copyrights in collective works, as distinct from individual contributions and whether those rights may be vested in legal persons are important questions for publishers.

Employment

In the UK and Ireland all copyright in works produced by employees under a contract of service vests in the employer. In contrast, the freelance worker retains all copyrights. For this reason most disputes in the UK over copyright ownership in the sphere of employment relate to whether the author is working under a contract of service (i.e. an employee) or a contract for services (i.e. a freelance). The issue often arises because the relationship between the journalist and the publisher is blurred, such as where a journalist is a regular contributor and has been extended many 'employee' benefits by the publisher. In circumstances where there is doubt regarding the relationship, the determination of the nature of the relationship is a matter of domestic employment law.

Continental copyright laws are the reverse of the UK and Irish position, with the exception of The Netherlands (where employee copyrights are vested in the employer but employees have inalienable moral rights). On the continent, the employee is the owner of copyright and the employer only obtains such exploitation rights as he has contracted for (e.g. Belgium, France, Greece and Spain). Further protection is often provided to the author by legislation providing that any such agreements shall be limited to rights necessary for the customary activity of the employer at the time the work is delivered (e.g. Spain). Often employee journalists will have matters of the exploitation of copyright by an employer dealt with in a collective employment agreement (e.g. the wage agreement for journalists in France). In other cases copyright agreements may be concluded by journalist unions, on behalf of their members, directly with individual employers. Usually a general employment agreement will give no more to the publisher than the right to first publication. Re-publication or publication outside the publisher's customary use or by any third party requires the express consent of the journalist. Accordingly, the difference in copyright position between freelance and employed journalists on the continent is nowhere near as significant as it is in the UK and Ireland.

Commissioned works

The position regarding commissioned works is uniform across the EEA. The author of the commissioned work is the copyright owner subject to any rights transferred in writing by the author (subject always to any restrictions imposed by the applicable domestic law). In the case of freelance writers, in the absence of a written agreement a publisher may be forced to rely on an implied licence to publish the work in accordance with customary use. Any such implied licence would almost certainly be restricted to first publication.

Assignments

Under the laws of the UK, Ireland, Greece, Iceland, Norway and Sweden copyright is transmissible by assignment as personal or moveable property.

In stark contrast many continental Member States prohibit the transfer of copyright, other than by testamentary disposition, absolutely (Austria, Germany, Luxembourg) or only allow the transmission of the author's economic rights subject to prescribed conditions (Belgium, Denmark, France, Italy, Spain).

Regulation of publishing agreements

Every Member State permits the licensing of the author's exploitation rights. However, this may be subject to conditions imposed by domestic legislation. In contrast to the common law jurisdictions of the UK and Ireland, many continental countries impose specific terms into certain classes of exploitation agreement, including publishing agreements. Countries which regulate publishing agreements directly through copyright legislation include Belgium, Finland, France, Greece, Iceland, Italy, Norway, and Sweden. Typically these countries impose certain minimum obligations on the publisher and author(s), including duties on the publisher to exploit the work and account on a regular basis to the author.

Moral rights and waiver

In many continental countries many of the author's rights, particularly the moral rights, are inalienable. In the common law jurisdictions authors have no inalienable rights, all of their rights may be transferred or waived. It is unsurprising, therefore, that the most intractable disputes between publishers and authors occur in the common law jurisdictions (and the notable civil exception, The Netherlands which is a hybrid of civil and common law) – because nothing is sacred, everything is for sale.

Moral rights, while being as integral as economic rights in the civil law concept of 'author's rights', are a wholly new concept in common law jurisdictions. Limited moral rights (paternity, integrity, freedom from false attribution of a work and privacy in relation to certain photographs and films) were introduced into UK law by the Copyright, Designs and Patents Act 1988 ("CDPA") and into Irish law by the Copyright Act of 2000. Following the recent Directive on the Artist's Resale Right these Acts will be amended to include the droit de suite already operating in the copyright laws of 11 continental Member States.

By the far the most fundamental difference remaining between the common law and civil jurisdictions over moral rights is that these rights can be waived absolutely in the UK and Ireland whereas in continental countries these rights enure to the author and are inalienable.

A lesser, but significant, difference is that employees in the UK and Ireland do not obtain any moral rights in works created during the course of their employment (i.e. in those works where the copyright vests in the employer), whereas continental employees enjoy the same moral rights in such works as freelance authors. A point to note in relation to moral rights under the CDPA is that they do not apply in relation to any work made for the purpose of reporting current events, nor does the right apply in relation to the publication of a literary, dramatic, musical or artistic work in a newspaper, magazine or periodical or in an encyclopaedia, dictionary, yearbook or other collective work of reference.

Regulation of exploitation through digital media

While the copyright in future works is capable of being assigned or licensed without restriction in the UK and Ireland, several continental countries have enacted provisions to protect the author's rights of exploitation in the digital age. Examples of this include prohibiting the total transfer of future works (France), restricting the assignment of, or agreements to exploit, future works (Austria, Belgium, Germany) or by prohibiting (Spain) or restricting agreements to exploit works in a form that is unforeseeable at the date of the contract (France).

By far the most significant development in the field of electronic publishing is the Digital Copyright Directive which will harmonise European copyright law in this area and has been described by Internal Market Commissioner Frits Bolkestein as the most important measure ever to be adopted by Europe in the copyright field and a measure that brings European copyright rules into the digital age.

The Directive, which must be implemented by Member States by 22 December 2002, contains three key rights for copyright owners. These are a reproduction right, a right of communication of works to the public and a distribution right. In addition to the rights to be granted, the Directive contains a list of exceptions to the rights of copyright owners. One of these, the exception from copyright infringement of temporary copies made under certain conditions (essentially in order to permit the normal functioning of the Internet) is mandatory and will need to be adopted by all Member States using the exact wording of the Directive. Member States will be able to pick and choose from the remainder of the list of exceptions, so that harmonisation will not be complete. However, the list is exhaustive and Member States will not be able to introduce or retain exceptions which fall outside its scope.

Where Member States already provide for an exception under national law, the existing provision will need to be altered to the extent that it does not conform to the exception as described in the Directive. For example, under UK law the fair dealing for the purpose of reporting current events exemption under s.30(2) of the CDPA does not extend to photographs. The provision will need to be amended to include photographs in order for it to comply with the Directive. This example is in fact illustrative of a feature of UK law that is rarely found on the continent, the tendency of UK copyright law to apply most of the exceptions to types of copyright work rather than applying them wholesale. The exceptions contained in the Directive are broader in that they apply notwithstanding the type of work.

One exception in the Directive of particular interest in the context of this article is contained in Article 5.3(c) which allows reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics or of broadcast works or other subject-matter of the same character, in cases where such use is not expressly reserved, and as long as the source, including the author's name is indicated. In jurisdictions where an equivalent of the 5.3(c) exception already exists or is adopted, freelancers will need to reserve their rights to such use expressly in their agreements with publishers. There is no such general exception in the CDPA. Will the CDPA be amended to include this exception? There seems to be no intention at present to introduce new exceptions to the CDPA from the optional exceptions in the Directive. The Copyright Directorate at the Patent Office is aiming to produce a draft Statutory Instrument for consultation purposes by 31 December 2001.

In relation to databases, the Directive on the legal protection of databases has now been enacted into the domestic law of the Member States. In the UK the Directive is implemented by the Copyright and Rights in Databases Regulation. This development is of interest to publishers operating databases or providing or intending to provide database services in Europe. Quite apart from, or in addition to, the protection of databases and their contents by copyright, databases can be protected within the EEA by a separate 'database right' arising where there has been 'a substantial investment in obtaining, verifying or presenting the contents of the database'. This database right vests in the person who takes the risk of investment. The period of protection (15 years) is considerably shorter than that for copyright. However, if the database is one which changes substantially over time it can theoretically remain protected by database right indefinitely. This is one of the principles that was confirmed by the decision in the first UK case concerning the Database Directive, British Horse Racing Board Ltd v William Hill Organisation Ltd (No 2) [2001] 2 CMLR 12.

The caselaw

It follows from the various legislative provisions considered above that what caselaw there is in Europe on disputes between authors and publishers is primarily concerned with questions of consent and agreement. In the UK and Ireland the digital exploitation of freelancers' work is entirely a matter for agreement between the parties (or implied consent in the absence of written agreement) whereas on the continent a publisher requires the consent of both employed and freelance authors to the intended exploitation.

Since the mid-nineties when European news publishers branched into electronic publishing the standard response of publishers to the copyright complexities resulting from such exploitation has been to press contributors for full assignments of copyright or, where this is not possible, the exploitation rights. Freelance journalists and employed journalists on the continent have resisted such pressure, often through their unions, leading to a combination of collective bargaining and some individually negotiated agreements.

Several disputes involving journalists and publishers have already been decided by the domestic courts of Austria, Belgium (Les Journalistes et l'Internet – Cyberlex (Tribunal de Premiere Instance de Bruxelles) 16 October 1996), Denmark, Germany, France (Union Syndicale des Journalistes Francais CFDT v SA SDV Plurimedia (Tribunal de Grande Instance de Strasbourg) 3 February 1998), and The Netherlands (De Volksrant Freelancers, September 1997). In every case the courts have found that electronic exploitation without the express consent of the journalists involved is an infringement of copyright. The website www.authorsrights.org/legal maintains a current list of such cases.

In April, The Netherlands largest newspaper publisher, Perscombinatie Meulenhoff ('PCM') offered NLG 5.5 million (about £1.6 million) to its 3000 freelancers in a bid to settle the largest copyright damages claim in Dutch press history. The company has set the European record, although for the freelancers concerned it comes down to an average of about £3 per article. A large minority continues to refuse the offer.

Since 1990 the Nederlandse Pers Databank (Dutch press database), the major news database which is now owned by PCM, has operated on the Internet supplying the content of five Dutch national newspapers without the consent or payment to freelance contributors. The papers, as in the Tasini case referred to below, also sold freelance content on to databases such as Lexis-Nexis, again without permission or payment. Since the issue was raised over 3 years ago, PCM has now obtained the consent of half of their freelance writers for full electronic exploitation.

PCM, the publisher of 5 national broadsheets, local dailies and a substantial book publisher, is currently offering freelance journalists 2% of their original fee for all republication rights, electronic or otherwise. The company's papers have reportedly instigated a policy of not offering commissions unless freelancers accept the publisher's terms. Other major Dutch publishers, such as VNU, offer 10% or more. While the majority of freelancers (over 60%) have accepted the 2% tariff many have refused and insist on taking the publisher to court.

An important case under US law was decided in June 2001. This was the case of Tasini v New York Times. The case concerned the copyright status of electronically stored periodicals containing individual copyright works and s.201 of the US Copyright Act 1976. S.201(c) deals with collective works and states that copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series. The decision represented a victory for freelancers: the Supreme Court found that The New York Times and other publishers had committed copyright infringement when they resold freelance newspaper and magazine articles, via electronic databases such as LexisNexis, without asking the authors' permission or making additional payments to them. The case was upheld in October 2001 in National Geographic v Greenberg when the Supreme Court declined to hear National Geographic's appeal against an appeals court decision that it had infringed the photographic works of Jerry Greenberg by reproducing photographs he had sold to the magazine in a CD-ROM.

There is no equivalent of section 201 in UK copyright law or the laws of any European state and consequently the Tasini decision has no direct legal bearing on copyright law in Europe. However, copyright in the digital age is an international issue and the Tasini decision does have a bearing on the global climate for digital publishing and will encourage freelance and employed journalists in Europe in their numerous and on-going negotiations with publishers.

Collective agreements

Several Member States legislate for the recognition of collection societies and/or the determination of royalty rates but none prescribe schemes or require authors to deal with such schemes. Collective agreements between journalists' unions and publishers (employed and/or freelance) have been concluded in a number of European countries including Austria, Denmark, Sweden and the UK. Guidelines in relation to 'fair use' of copyright works in digital form are also beginning to appear (for the UK see Guidelines for fair dealing in an electronic environment 1998 (Joint Information Systems Committee and the Publishers Association).

In the UK a landmark agreement was reached between Guardian Newspapers Ltd ('GNL') and the National Union of Journalists ('NUJ') (negotiating on behalf of freelance members) in 1999. The agreement was reached following the publication of recommendations by an independent inquiry into the rights of freelance writers who contribute to the Guardian and Observer newspapers. The main recommendation was that there should be a standard licence, expected to apply in over 90% of cases, allowing GNL the uses it wants while copyright is retained by the contributors, who are entitled to re-sell their material subject to any conflict of interest. The freelancers' moral rights are not waived; the NUJ recently went to ACAS in relation to discussions with the Guardian and won a 'concession in principle' that the Guardian would pay for and acknowledge moral rights for re-use online. The proposed fee for contributions is in two parts: one covering the original newspaper use and the other encompassing syndication and electronic use. The newspapers keep the writers' union informed of the relative income from the two streams of income and the licence fee is re-negotiated between the NUJ and GNL on an annual basis. This agreement is similar to collective agreements reached on the continent. Both parties to the agreement were happy with the final result and have commended it as a model agreement to the newspaper industry. Nevertheless the NUJ claims that many publishers remain reluctant to discuss such issues.

There remain, however, a number of ongoing disputes between journalists and other publishers in the UK. The Periodical Publishers Association recommends that its members take transfers of all rights and provides draft contracts for its members. These drafts are currently in revision concerning issues of Internet use. The Newspaper Society has advised its publishers for some time to include express terms with contributors to cover use in all media. The NUJ recently approached the Newspaper Society to join in talks via a mediator to discuss the issues of electronic publishing. The NUJ further reports that while written agreements between publishers and freelancers are not as yet standard practice, it has approved a standard commissioning form which is recommends to its members. The UK government has attempted to remain neutral and has confined itself to suggesting that where unfair copyright terms are forced on contributors complaints should be directed to the relevant competition authorities such as the Office of Fair Trading.

Book publishers in the UK are also rapidly embarking on digital distribution and services. The UK Society of Authors has reported that the publishing company Random House will divide its revenues from e-books 50:50 with authors rather than paying royalties at the same rate as on books.

Final thoughts

Clearly publishers in all fields, particularly newspapers, have embraced and will increasing embrace electronic publishing. In the case of newspapers, as well as the printed version, publishers are sending out material from each issue to syndication clients around the world, to online databases and their own websites. The old notion of a single use of a writer's work has become inappropriate if not obsolete.

Speaking of the passage of the Digital copyright Directive, Internal Market Commissioner Frits Bolkestein noted "The Parliament was subjected to an unprecedented lobbying onslaught on this Directive, and I regret that some of the parties concerned strived to obtain nothing less than total victory….That is not the European way." However, the NUJ (UK) was disappointed that the Directive did not go further and harmonise rights across Europe in relation to first ownership of copyright by employees. This area of anomaly between common law and civil jurisdictions is expected to prolong the process of wider implementation of collective agreements in the UK, Ireland and The Netherlands. However, increasing European harmonisation towards the civil model of 'author's rights', and the outcome of the Guardian agreement indicate that collective agreements are likely to reserve copyright to the contributor and expressly licence the required forms of use. Given the variation in copyright legislation across Europe it might be thought that publishers may, in time, welcome the certainty afforded by such agreements.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

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