Member's Review of the Beijing Conference

Writers & Directors Worldwide (W&DW) congressed in Beijing, China on November 2015 and welcomed authors from all corners of the world to officially launch the campaign “What If Screenwriters & Directors Were Fairly Remunerated?”  It was the first time that W&DW had met in the Asia Pacific, demonstrating its growing commitment to strengthening authors’ copyright the region.

This short article by Sabiene Heindl, Director, Corporate Affairs & Legal for ASDACS, outlines the nature of the Beijing W&DW Congress and the call for authors’ rights in China and beyond.

"Introduction

Without an original script there is no film.  Without a director there is no film.

 

– Gadi Oron, Director-General CISAC

Described as a significant milestone for W&DW, Gadi Oron the Director-General of CISAC welcomed delegates from four continents, including the Australian directors’ and writers’ organizations1 to the inaugural meeting of W&DW in the Asia Pacific.  China was described as having one of the world’s leading screen industries, with the influence of its writers and directors going beyond Chinese borders.  Audio-visual was acknowledged as a sector with massive potential in China (36.15 percent increase in box office revenues in 2014 alone) that served the local market (with 3,000+ television stations) and increasingly the global market through digital distribution.

In recent years, W&DW had been encouraged by Chinese Government moves to strengthen copyright laws including the signing of the WIPO Performers’ Rights Treaty in June 2012 which represented a major benchmark for the audio-visual sector.  The Chinese Government were taking significant steps to amend copyright laws and adopt an approach that took into account the interests of creators.  The proposed Chinese copyright amendments, discussed below, were expected to significantly improve the rights of remuneration for audio-visual creators.

Authors Rights and Collective Management

CISAC’s Global Collections Report 2014 released in October 2015 showed a return to growth for 2014 with royalties increasing by 2.8 percent to €7.9 billion collected on behalf of creators2. For audio-visual creators, the second largest repertoire, €499 million was collected in 2014 representing 5.2 percent growth.  However, this was dwarfed by €6.9 billion for music.  The reasons were due to the lack of harmonised rights (who is recognised as an author, which rights are granted to authors and can these rights be assigned?) and the structural level of collective management for the audio-visual sector.

W&DW advocates for stronger rights for creators that are inalienable.  Oron’s view was that what is needed is an internationally harmonised, right of fair remuneration which is unassignable.  Collective management is essential because it ensures strength in authors’ negotiating positions, particularly against the power of producers, broadcasters and digital platforms.

In the digital sector, internationally there had been growth of 20 percent in 2014 for the use of online content.  However, collections from digital services accounted for only 6.5 percent of the global royalties around the world.  Described as “alarming”, 99 percent of those come from music repertoire with less than 1 percent for audio-visual content3. The solution proposed was to enforce stronger rights and a stronger network of collection for authors.

Fair Remuneration for Authors

In Beijing, Yves Nilly, President of W&DW launched the joint W&DW campaign “What If Screenwriters & Directors Were Fairly Remunerated?” to introduce an unassignable, unwaivable right to remuneration for screenwriters and directors worldwide.  It aims to be a positive campaign with zero blame, educate readers on the threat to authors’ livelihoods and demonstrate the contribution that authors make both culturally and economically.  The campaign for authors focuses on key planks of respect and cultural diversity.

Within this context, Delyth Thomas, Vice-Chair of Directors UK asked the question “what is fair remuneration” and how did authors work it out and who determined it?  Big corporates and producers had historically defined it for audio-visual creators.  Directors UK had recently undertaken a study to determine what fair was, particularly in circumstances where a television program or film achieved global success.  The study had provided a compelling argument for Directors UK negotiating two tiers of remuneration with its industry agreement with broadcasters incorporating up-front fees and residuals4.

The Copyright Landscape in China

In China, the Copyright Law protects the moral rights of writers and directors, however copyright in the film is owned by the producer of the film.  The writers and directors only have the remuneration negotiated through contracts.  Indeed, copyright legislation was only introduced into China 1990 and based on the common law system.  20 years on it was recognized that there was growing concern about authors’ rights and the need for a clearer manifestation of their rights.

The key challenges for audio-visual creators in China are online infringement and lack of fair remuneration to creators5.  The state of collective management was also described as needing reform6 as essential for ensuring that authors were properly remunerated and the streamlining of the collection and distribution of royalties7. The lack of remuneration for creators is based on the fact that:

1. Audio-visual works are protected as cinematographic works and copyright is owned by the producer and creators only receive remuneration through contractual arrangements
2. Audio-visual creators have substantial lack of bargaining power and therefore often agree to single limited up-front payments only without ongoing royalty income streams.

Mr Wang Ziqiang, Department for Policy and Regulation, National Copyright Administration of China discussed the draft revision for copyright that applied to films, namely as audio-visual works and the extension of the term of copyright to the life of the author plus 50 years.  It will recognise that films are derivate works from novels, scripts etc.  Therefore, there will be a need to obtain permission from the authors of these works prior to making the film.  Directors and writers will be given improved rights, including ownership of copyright in the films and improved moral rights.  There is also a proposed article which will strengthen copyright protection in the online environment8.  CISAC is also actively pushing for a standard industry agreement where creators enjoy the right to share a minimum percentage of royalties for secondary use9.

The Copyright Landscape in Australia

Representatives of Australian and New Zealand authors also attended the W&DW Congress.  They noted that opposition to directors’ copyright has been entrenched in the common law system and through years of industry practice where producers control all rights.  Stephen Wallace, Chair of ASDACS commented10:

Industry practice and the lack of bargaining power of Australian directors has meant that directors’ rights are simply ignored.  This is justified as conducive to business whereas in reality it is exploitative and a denial of rights.  Producers recognise the rights of music composers, so why do they persist in denying directors their fundamental rights? Directors are authors too.

Australian screenwriters also have an uphill battle in retaining their rights and fair remuneration for the ongoing exploitation of their work, despite having copyright in the scripts they create.  This is because they face rapidly evolving and complex international distribution models and often unnecessarily aggressive and unbalanced contracting practices.  Unlike legal systems in much of Europe, the United Kingdom and South America, writers and directors in Australia do not have any economic ownership of copyright in the film itself, despite the law being clear about their equal moral rights in the work alongside the producers.

In an era when digital technologies are changing the face of creation and distribution in the screen industry worldwide, writers and directors in Australia and New Zealand argued that it was essential to have a seat at the table through an inalienable right of remuneration for the ongoing exploitation of their films through copyright ownership.

Conclusion

As I travel the world, I find it very gratifying to be exposed to the wonderful wealth of talent that is out there—especially from younger generations—and I am constantly reminded of creators’ overwhelming expectation to be treated with respect and receive fair remuneration for any use of their works. We creators stand behind our societies as they adapt to new market conditions, and new challenges, to further grow their collections

 

– CISAC President Jean-Michel Jarre11

Authors’ rights will continue to feature on the worldwide stage of copyright issues, particularly with the launch of the new campaign by W&DW “What If Screenwriters & Directors Were Fairly Remunerated?” to introduce an unassignable, unwaivable right to remuneration for screenwriters and directors worldwide.  The steps being taken by the Chinese Government to embrace copyright for authors is a welcome step in the international fight for fair remuneration for authors of screen content.

Sadly, the reality is that if remuneration rights are not set out clearly in national copyright laws then authors’ rights will continue to be trampled, as is the case in Australia.

References:

[1] ASDACS and AWGACS

[2] CISAC Global Collections Report 2015

[3] Gadi Oron on 5 November 2015.

[4] Based on hours of use x residual % x directors’ salary per program hour.

[5] Mr Ben Ng, Regional-Director for Asia Pacific, CISAC on 5 November 2015.

[6] Mr Tang Zhaozhi, Deputy Director General, Copyright Department, National Copyright Administration of China, 5 November 2015.

[7] Professor Wang Qian, East China University of Political Science and Law on 5 November 2015.

[8] ISP liability under Article 73.

[9] That is, not on the first screening, but rather subsequent uses such as exploitation on DVD, VOD etc.

[10] Statement of ASDACS at the W&DW Congress, Beijing, 6 November 2015.

[11] CISAC Press Release