Writers’ Guild of Great Britain ___________________________________________________________________________ Response to Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions A DIGITAL AGENDA FOR EUROPE ___________________________________________________________________________ 1. The Writers’ Guild of Great Britain is a trade union with over 2,200 members, representing professional writers in TV and radio; theatre; film; publishing; writing for children; videogames and multimedia. The development of digital media, particularly as it affects audiovisual works such as television programmes and films, is of profound significance to our members’ creativity, livelihoods and authors’ rights. 2. We agree that the European single market in the digital domain is fragmented. This is partly a result of the different traditions and cultures of member states. Each state makes audiovisual products and services like films and TV programmes in its national language. Showing films and television programmes across borders is bound to suffer problems because of language barriers. This obstacle can really only be addressed by dubbing and subtitling, plus greatly increased marketing and promotion. The creation of a single market is a lower priority here, and there is a danger that it would promote standardisation at the expense of cultural diversity and commercialism at the expense of public service provision. Therefore we think the need for pan-European licences for audiovisual works is much overstated. 3. To some extent the Communication makes the common mistake of conflating audiovisual works with musical works. This is a long way wide of the mark. In musical works language is either entirely irrelevant, or else a minor consideration. In most audiovisual works language is of at least equal importance to the visual aspect (the main exceptions to this are the very few mainly visual works, and works intended for the youngest children). Moreover a single copy of a musical work is expected and intended to be replayed many times – perhaps hundreds or even thousands of times. A single copy of an audiovisual work such as a film or television programme is likely to be replayed only a handful of times. These are fundamental and critical distinctions which must inform policy and call for significantly different solutions. 4. Because English is so widely spoken and understood, films and TV dramas created by our members are frequently viewed throughout Europe and the world. Our concern is that when a broadcaster, for example the BBC, sells a programme created by our members to 1
Writers’ Guild of Great Britain ___________________________________________________________________________ another broadcaster, which then broadcasts it to several countries, our members are inadequately rewarded (if at all). It is a problem that remuneration is often dependent on revenue from private-use levies – these do not exist in the UK and this militates against effective reciprocal arrangements between collecting societies in different countries. 5. Key Action 1 of the Communication is of considerable interest as it concerns the governance and transparency of collective rights management societies. Our members earn their living from the fees, royalties and residual payments that accrue from the intellectual property of their work. Only where there is no other practical solution should their rights be managed by collecting societies. These societies are (or should be) non-profit organisations and should not be treated as commercial enterprises. It is a problem that they are selfgoverning, largely without effective democratic control or accountability to the rights holders they purport to represent. This is starkly illustrated by the large salaries of the executives and directors of collecting societies, their large and well-paid staffs, and their well-appointed offices – all in contrast to the vast majority of the creators represented, many of whom struggle to earn even an average income. There is a marked tendency for collecting societies to accumulate large reserves of cash and property instead of distributing this money to creators or using it to the general benefit of the community they should be serving. All these issues point towards a need for the better regulation and limitations on the activities of collecting societies, rather than any extension of their remit. 5. Collecting societies are not authorised or empowered to negotiate individual or collective agreements between creators and producers. Screenwriters negotiate contracts individually or through an agent. They also negotiate collective agreements through their trade unions/guilds with producers to define minimum terms of pay, royalties and compensation for the copying of the work for linear and non linear services. Any negotiation of pan-European licences must be done by creators and their trade unions/guilds directly with producers. Collecting societies are not capable of negotiating in this way, because their members can include producers and not just creators, because producers can also be rights holders; and most collecting societies represent multiple classes and groups of rights holders whose interests do not and cannot coincide. We are concerned about the manner in which your Communication mentions the need for cross-border pan European licensing agreements. In order for creators to fairly negotiate equitable pan-European licences with producers it is vitally important that collective agreements can be freely negotiated. Collecting societies cannot be the instrument to negotiate such agreements. 6. While we acknowledge the work of collecting societies in distributing revenues to writers, we would also draw attention to the problem that a large proportion of money does not reach the creators to whom it is due. Each collecting society – typically in a chain of two or three – retains a commission which is commonly around 10 per cent and in a few cases as high as 30 per cent. In addition many collecting societies retain compulsory or “voluntary” (but unavoidable) cultural and social deductions – some of these are imposed internally by collecting societies; others are imposed by legislation and remitted to governments or national agencies. We think this operates unfairly towards UK creators, who suffer these deductions but do not benefit in any way from the cultural and social funding. No such cultural or social deductions or projects operate in the UK. The cumulative effect of all these commissions and deductions is that at least 30 per cent, and in some cases approaching 50 per cent, of remuneration does not in fact reach the creator. We think this is excessive and an issue that must be addressed. 2
Writers’ Guild of Great Britain ___________________________________________________________________________ 7. Another issue arising from the operation of collecting societies is that they necessarily operate on a “one size fits all” basis. Every programme on a cable retransmission service will be rewarded at a standard rate per minute, regardless of the size of the audience, the status of the writer and performers, the production budget of the programme, or the programme price set by the original producer or distributor. Therefore the remuneration bears no relation at all to the royalties, residuals, repeat fees, etc. negotiated by writers and performers or their agents and trade unions. This flies in the face of the principle of a free market economy in audiovisual works. It may be that there is no practical solution to this issue in the field of cable TV, however the provision of online services easily allows the precise measurement of audiences, price-setting that relates to the market value of each work, and differential remuneration by means of micropayments. If collecting societies are unable or unwilling to operate such market-sensitive solutions then we believe the market in audiovisual works must be free to engineer its own systems in a way that will be fairer to writers, other creators and performers, and also the producers of programmes and films. Therefore we believe collecting societies should operate under a general limitation that they will handle payments only in circumstances where there is no practical alternative, and we do not think it would be necessary or equitable for collecting societies to expand automatically from cable television into online services. 8. We support the statements in the Communication that any cross-border licensing should preserve the contractual freedom of the rights holders. This is essential for us. The music industry is completely different to TV / film. Music collecting societies such as PRS For Music take an assignment of rights from the artist. This is not the case in TV where rights are generally controlled by the programme makers with rights licensed or assigned by the writers/actors, etc. TV collecting societies have nothing to do with this primary exploitation of work. Thus the operator of an online TV service must go to the producer or distributor and buy programmes – not to a collecting society to buy a licence. This free trade must not be interfered with. 9. Collecting societies are ripe for reform and need far greater transparency in their workings. They should be used only where individual collection is impossible. They should be controlled by the rights holders. They should negotiate their licences on commercial terms. All cultural deductions should be strictly voluntary. All agreements and reciprocal arrangements should be fully available to all members of the society. There should be strict standards of probity and efficiency and limits on commissions that can be charged. Money trails and accounting principles should be open. Undistributed amounts should be devoted to charitable organisations that benefit the members of the society. We oppose any “quick fix” of extending the current provisions for cable retransmissions into the digital arena. They are completely different systems. 10. Orphan works. It is essential that before any work is treated as “orphan” a thorough search should be made to find the creator/rights holder and this search must be subject to statutory criteria and regulation. Where such a search is fruitless, we think a collective licensing solution is practical and desirable (we endorse the proposal submitted to the UK Government and the European Commission by the British Copyright Council – http://www.britishcopyright.org/pdfs/policy/2009_024.pdf). It is imperative that the licensee of an orphan work must pay a realistic commercial fee to avoid market distortion. Fees collected by the issuers of licences for orphan works should be paid to the rights holders if they subsequently emerge, and if they do not emerge the fees must promptly be used to 3
Writers’ Guild of Great Britain ___________________________________________________________________________ collectively benefit the relevant category of creators/rights holders – they should not be retained by collecting societies, nor should they be distributed to individuals. 11. We note that you are considering issuing proposals for directives before the end of 2010 on orphan works and on collective rights management. We urge you to consult and involve us, and other writers’ organisations, in the discussions on these directives. Unlike the drafting of the Audiovisual Media Services Directive, screenwriters have not so far been invited to participate in any consultation on the drafting of these two directives. Bernie Corbett General Secretary Writers’ Guild of Great Britain 30 July 2010
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