Critical analysis of the authorship of films: European Commission proposals and effects

This content is researched and drafted by Akella Poornima, IIIrd Year LL.B (2018-2021) student at Symbiosis Law School, Pune, India.

Introduction

Promoting and protecting global cultural diversity via digital society allows a wider transmission of creative content with its reproduction becoming cheaper and quicker. This was an important objective in the 2005 UNESCO Convention on Cultural Diversity which has been ratified at the EU level in 2006, for broadening the scope of opportunities for authors and content providers struggling to reach a new and larger band of audience. This pluralism and coordination instigated them to actively take part in promoting online cultural diversity and creative content through digital cinema.

The European Commission in its recent report recognized the principal director of a film or an audiovisual work as an author of that work and thereby the owner of the intellectual property rights, which seems to be inappropriate and biased on one side. Envisaging the concept of providing copyrights to the ‘single owner’ of the films by not harmonizing the different types of works done by different cinematographic professionals such as writers, producers, singers, lyricists, etc. is a silent administrative move which is criticized world-wide. Another fact, which rolled the eyes in speculation is the conflict of the European Law governing cinematographic films between the common law regime and the Droit d’auteur[1] system of civil nations.

The film industry in Europe: Exploitation within its territory

Although the provision of designating other co-authors remained free to be used by the Member States under their concerned national law, the measure is still insufficient in curtailing the exploitation done under a singular entity. Further, such disparity leads to the broader sense of the law terms such as ‘authorship’ and ‘cinematographic or audiovisual work’ which become inconsistent with their original meaning as well as to its derivative. Further, at this point, the Commission failed to notice the different conceptual definitions in relevance to the nature of copyright law, both in civil and common law countries. The additional black spot noticed is the biased conclusion of the report which stated –

“There is no evidence that vesting original authorship in the principal director of a film would have caused difficulties in the exploitation or distribution of films, or the effective tackling of piracy and other unauthorized use of such works.” [2]

The potential skepticism in the conclusion further opens the doors between different legal regimes of the member nations who perhaps will take a midway approach to overcome the implementation differences through contractual arrangements. Also, we must not forget that instigating these contractual arrangements stand as the most comfortable instrument for exploitation in the domestic market.

‘Conflict of Laws and Interests’ in the International Film Industry

The Commission’s report brings forth this concern by stating –

“The practical need to place the rights concerned in the hands of the producer and yet to respect the basic principles of the author’s rights protection … In this regard, a balance has to be struck between the rights and interests of the natural persons who contributed to the intellectual creation of the film on the one side and the need to ensure the optimal exploitation of cinematographic or audiovisual works on the other”.[3]

1. The interests of the producer or the principal director may be customized to extract economic rewards once the owner of IP rights becomes active in the international borders. By virtue of the copyrights vested upon him, he can control, share, and even license it for further rental and reproduction purposes with or without the consult of his creative team.
2. There are inconsistencies across different jurisdictions of different member states while applying the protection of copyright law. As a result, the distinction between ‘applicable copyright law’ and ‘applicable copyright contract law’ becomes a tool of interpretations in the hands of the judiciary.
3. Another drawback of giving sole ownership to the principal director or producer is the action of passing off. In such a condition, while drafting the report, lawmakers forgot to ponder how the action of passing off the IP will take place from the owner to the other. How will licensing of the independent work from the authors to the principal director (who under the law is given sole ownership) take place in the absence of creativity by him with respect to the IPR owned work is perhaps a potential loophole in the whole report.
4. Adding to the above-mentioned controversies, the rights of a screenwriter as a co-author of the IP obtained from the cinematographic work standstill with no clarification. Screenwriters play a vital role in producing a film and therefore, some scholars have accorded to have him given the moral and economic rights over his part of claimed IPR work.
5. Another important perspective to notice here is the intersection while harmonizing different sects of copyright laws in different member countries. For example, the report mentions that the co-authorship can be provided as per the national laws if felt needed. But, it fails to enumerate the exceptional cases where providing the sole ownership to one person of a designated IP works fails to comply with the respective nation’s member states’. There is complete ignorance in dealing with a condition where national laws have strict policies to harmonize each produced work separately to its creative originator.

 Conclusion

This write-up is an attempt to highlight the unacknowledged crucial loopholes which were neglected or ignored by the lawmakers while drafting the Commission report which had the objective of having a unanimous set of regulations for claiming an audiovisual or cinematographic IPR works. As stated in the above-made contentions, the author wants to throw some light on the haphazard implementation of a half-heartedly drafted report which tends to lack in providing the creators the basic recognition and writes for their creative ability. Different member states have a variety of rules and regulations regarding the governance of ownerships in copyright law which differ from each other as well. The Commission’s report declines in providing the opportunity to harmonize the ownership as well as the moral and economic rights of original creators. In such a scenario, copyright protection tends to be less utilized against the economy to extract monetary benefits. There will be discouragement and depreciation in consent taking the coordination while functioning in the internal market. The Report is insufficient to secure the future of less popular production houses, especially those who have their set up in the rural geographies. It further fails to build an equilibrium between the owner and the original creator which in the future is going to discourage and depreciate the quality of work, and the creative abilities of human intellect.

With such dark spots, affecting the practical implementation of its administration parallel with this Report, it is highly advisable to opt for “plural ownership”. The assignment of IP rights become easier for the original creators when ownership is shared. The moral as well as economic rights both are recognized and utilized with coordination when ownership is shared. The best interests of the parties will be involved this way, the quality of creative work will be enhanced as well as the market will compete with a healthy and growing environment.

References

• 2 – History of film protection in Europe Pascal, written by – Kamina, Université de Franche Comté, Publisher: Cambridge University Press, ( https://doi.org/10.1017/CBO9781316343135.004)
• Strengthening the Position of Press Publishers and Authors and Performers in the Copyright Directive(https://www.europarl.europa.eu/RegData/etudes/STUD/2017/596810/IPOL_STU%282017%29596810_EN.pdf)\
• Remuneration of authors and performers for the use of their works and the fixations of their performances (http://publications.europa.eu/resource/cellar/c022cd3c-9a52-11e5-b3b7-01aa75ed71a1.0001.01/DOC_1)
• Film Financing in the Digital Single Market: Challenges to Territoriality Bernt Hugenholtz& Joost Poort,   IIC – International Review of Intellectual Property and Competition Law volume 51, pages167–186(2020) (https://link.springer.com/article/10.1007/s40319-019-00900-2)
• Research for CULT Committee – Film Financing and the Digital Single Market: its Future, the Role of Territoriality and New Models of Financing (https://www.ivir.nl/publicaties/download/IPOL_STU2019629186_EN.pdf)
• Harmonizing European Copyright Law (https://www.ivir.nl/publicaties/download/710.pdf)

[1] The term is extracted from the French dictionary which means – “author’s rights”. It widely used for copyright works.

[2] EUROPEAN COMMISSION’S REPORT ON AUTHORSHIP OF CINEMATOGRAPHIC FILMS: A CRITICAL ANALYSIS, written by – Pragalbha Priyakar, a student of National Law University Odisha, Cuttack (http://www.iaeme.com/MasterAdmin/UploadFolder/EUROPEAN%20COMMISSION%20S%20REPORT%20ON%20AUTHORSHIP%20OF%20CINEMATOGRAPHIC%20FILMS%20A%20CRITICAL%20ANALYSIS/EUROPEAN%20COMMISSION%20S%20REPORT%20ON%20AUTHORSHIP%20OF%20CINEMATOGRAPHIC%20FILMS%20A%20CRITICAL%20ANALYSIS.pdf)

[3] Ibid at 2.