New Safeguards for Authors Proposed in EU Draft Directive

I welcome this draft directive, especially for its emphasis on transparency and the bestseller clause. Authors badly need the sort of natural justice that these clauses embody, not least because our work contributes substantially to the wealth of the nation. I hope that our government will see the rightness of these proposals and embody them firmly in the law of our land to ensure that they continue when we leave the EU.

Phillip Pullman, President of the Society of Authors

The Society of Authors welcomes the provisions to balance the playing field for creators announced in the EU Draft Directive on the Digital Single Market released today.

The Directive proposes two important safeguards for authors:

  • Transparency: a right to regular, timely, adequate and sufficient information on the exploitation of their works and performances from those to whom they have licensed  or  transferred  their  rights, including details of  modes of exploitation, revenues generated and remuneration due. This right will apply even if copyright has been assigned and will allow authors to assess how their work has been used.
  • The so-called ‘bestseller clause’: a right to claim additional, appropriate remuneration if the contractual remuneration is disproportionately low compared to the subsequent revenues and benefits derived from the exploitation of the works or performances. One area this could have a substantial impact is in educational publishing, where publishers are increasingly paying authors only a low flat fee. This clause would help avoid current practice where an author typically receives no further payment even if the book later becomes a highly successful curriculum textbook used in every school.

In his State of the Union address on 14 September 2016 Jean-Claude Juncker, President of the European Commission, said:

As the world goes digital, we also have to empower our artists and creators and protect their works. Artists and creators are our crown jewels. The creation of content is not a hobby. It is a profession. And it is part of our European culture.

I want journalists, publishers and authors to be paid fairly for their work, whether it is made in studios or living rooms, whether it is disseminated offline or online, whether it is published via a copying machine or hyperlinked on the web.

This sentiment is echoed in the Directive, when it says:

authors and performers often have a weak bargaining position in their contractual relationships, when licensing their rights. In addition, transparency on the revenues generated by the use of their works or performances often remains limited. This ultimately affects the remuneration of the authors and performers. This proposal includes measures to improve transparency and better balanced contractual relationships between authors and performers and those to whom they assign their rights.

Campaign for fair contracts

The Society of Authors has been lobbying for these changes for some time as part of its CREATOR campaign for fair contracts which also calls for reasonable and limited contract terms and regular reviews to take into account new forms of exploitation.

Commenting on the directive Nicola Solomon, Chief Executive, said:

Publishers too often fail to give their authors full information on sales and exploitation of their work. Many more gain an unfair windfall when a work is an unexpected success but do not share any of that gain with authors. Having provided evidence of such unfair contract terms to the Commission we are delighted that the EU accepts there is a problem and is suggesting sensible and proportionate measures to improve the position for creators. We believe these provisions will help avoid unfair practices that currently prevent authors making a living from writing. We will be pressing the UK Government to implement these clauses without delay.

Other provisions of the draft Directive, which are broadly welcomed by the Society of Authors, include exceptions to ensure harmonisation and cross-border uses of copyright including exceptions for text and data mining for scientific research, use of copyright works in the classroom and preservation of documents by cultural heritage institutions. We will study the text in detail and feed back any concerns and suggested amendments to MEPs and the Intellectual Property Office.

What happens next?

The Directive is now subject to further consideration and review and may take 12–18 months to adopt.

Even if approved in early 2018, it will probably not be implemented into national law for a further two years, so would not have effect before late 2020. Although this is likely to be past the time that Britain has left the EU, we will be strongly pressing for these provisions to be adopted into domestic legislation at the earliest opportunity.

As the Directive says:

Overall, the measures proposed in title IV of the proposal aiming at achieving a well-functioning market place for copyright are expected to have in the medium term a positive impact on the production and availability of content and on media pluralism, to the ultimate benefit of consumers.

Britain’s creative industries generate £84.1bn a year to the UK economy (2014 figures from CIC) and over 40% of book sales are overseas exports. It is important that we maintain a strong copyright regime, harmonised with the rest of Europe to ensure that we can still export to major markets- and it is important that the rights of creators be supported so they can benefit from their creations and continue to produce innovative, informative and creative works that are in demand worldwide.

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