Report from the Commission to the Council, the European Parliament and the Economic and Social Committee on the question of authorship of cinematographic or audiovisual works in the Community
Date: 2002-12-06
Institutions: European Commission
Subjects: approximation of laws, audiovisual communications policy, communications profession, copyright, film production, intellectual property, marketing

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 6.12.2002
COM(2002) 691 final

REPORT FROM THE COMMISSION TO THE COUNCIL, THE EUROPEAN
PARLIAMENT AND THE ECONOMIC AND SOCIAL COMMITTEE

on the question of authorship of cinematographic or audiovisual works
in the Community

REPORT FROM THE COMMISSION TO THE COUNCIL, THE EUROPEAN
PARLIAMENT AND THE ECONOMIC AND SOCIAL COMMITTEE

on the question of authorship of cinematographic or audiovisual works
in the Community

TABLE OF CONTENTS

I.

II.

1.

2.

III.

1.

2.

3.

4.

The mandate for the report........................................................................................... 4

The background of partial harmonisation of the notion of authorship of
cinematographic or audiovisual works in the Community .......................................... 4

The issue in general...................................................................................................... 4

The situation before harmonisation.............................................................................. 5

The acquis Communautaire on first ownership of copyright in cinematographic or
audiovisual works ........................................................................................................ 6

Directive 92/100/EEC .................................................................................................. 6

Directive 93/83/EEC .................................................................................................... 7

Directive 93/98/EEC .................................................................................................... 7

Conclusion ................................................................................................................... 7

IV.

Review of implementation by Member states.............................................................. 8

1.

2.

V.

VI.

1.

2.

3.

Regulating authorship in Member States ..................................................................... 8

Regulating transfer of rights in Member States ........................................................... 9

Impact of harmonisation ............................................................................................ 10

Possible need for further Community action ............................................................. 11

The divergent rules on first ownership of rights in the Internal Market .................... 11

The effect of non-harmonised mandatory rules in national copyright contract law on
the international exploitation of films........................................................................ 11

The possible impact of the conditions applicable to contracts relating to intellectual
property on the Internal Market ................................................................................. 11

VII. Conclusion ........................................................................................................................ 12

2

EXECUTIVE SUMMARY

On the occasion of the adoption of the common position on Directive 92/100/EEC on rental
right  and  lending  right  and  on  certain  rights  related  to  copyright  in  the  field  of  intellectual
property (18 June 1992)1, the Commission made a political commitment to produce a report
on  the  question  of  authorship  of  cinematographic  or  audiovisual  works  in  the  Community.
More specifically, this commitment was undertaken due to Article 2(2) of the Directive which
harmonises the notion of authorship in cinematographic or audiovisual works in recognising
the principal director of a film as its author or one of its authors. Three Member States which
did  not  provide  for  author’s  rights  for  film  directors  were  fundamentally  opposed  to  this
provision and suspected it to cause difficulties for the exploitation of films in their territories.
The  commitment  was  part  of  the  overall  compromise  package  and  meant  to  provide  some
safeguards with regard to these concerns.

As a result of this harmonisation, all Member States consider the principal director of the film
as  one  of  its  authors  now.  However,  Community  legislation  has  not  resulted  in  complete
harmonisation  of  the  notion  of  authorship  in  cinematographic  and  audiovisual  works.
Differences  in  detail  still  exist  with  respect  to  the  question  of  who,  among  the  group  of
persons  involved  in  the  making  of  the  film,  are  to  be  considered  as  co-authors  besides  the
principal director.

Contrary to fears expressed before the adoption of Directive 92/100/EEC, there is no evidence
that the partial harmonisation of the notion of authorship would have caused difficulties in the
exploitation  of  works  or  in  the  efficient  tackling  of  unauthorised  use  of  works.  In  practice,
potential difficulties in exploitation of the works that arise due to the fact that there may be
more  than  one  author,  are  overcome  by  contractual  arrangements.  These  contractual
arrangements  provide  the  necessary  means  for  the  exploitation  of  works.  Examples  include
provisions  in  the  contracts  permitting  the  adaptation  of  the  pre-existing  works,  contracts  by
which persons  undertake to participate  in the  film production,  licence  agreements  and  other
agreements concerning the film production.

Along  with  the  above  mentioned  contractual  arrangements,  Member  States  provide  for
statutory rules on transfer of rights in these works and underlying works to the producer with
the intention of assuring the efficient exploitation of cinematographic and audiovisual works.
At least, such rules on transfer of rights are provided for with respect to certain exploitation
rights, or in the form of statutory rules concerning works made in the course of employment.
These  rules  differ  to  a  fairly  large  extent  also  with  regard  to  both  the  methods  used  and
authors covered. These differences seem not to have caused major difficulties in  practice as
also they are levelled out by contractual arrangements.

To sum up, the overall results show that the partial harmonisation of the notion of authorship
of  cinematographic  or  audiovisual  works  has  had  a  noticeable  effect  on  contractual
arrangements  involving  contributors  and  producers  of  cinematographic  and  audiovisual
works. These arrangements would have to be subject to continued scrutiny in order to ensure
a  proper  contractual  balance  and  safeguard  the  functioning  of  the  Internal  Market.

1

Directive 92/100/EEC 19.11.1992, OJ L 346 27.11.1992 p.61

3

                                                
I.

THE MANDATE FOR THE REPORT

On the occasion of the adoption of the common position on Directive 92/100/EEC on rental
right  and  lending  right  and  on  certain  rights  related  to  copyright  in  the  field  of  intellectual
property2,  the  Council  and  the  Commission  made  the  following  statement  at  the  Council
meeting on 18 June, 1992:

"The  Council  and  the  Commission  agree  that  the  Commission  will  draw  up  before  1  July
1997 a report on  the question of authorship of cinematographic or audiovisual works  in  the
Community."

The present report is intended to honour this political commitment. It is based substantially on
a study carried out by external consultants, together with the Commission’s own findings. The
delay  in  producing  the  report  is  mainly  due  to  the  fact  that  the  Directive  was  implemented
very late, in fact too late, by many Member States.

Where the above statement refers to “authorship”, this report construes it in a broad sense to
include  issues  concerning  first  ownership  of  rights  and  including  the  statutory  transfer  of
rights.  It  also  addresses  other  issues  concerning  subsequent  ownership  which  are  closely
linked to the issue of first ownership, such as rules on transfer of rights and the unwaivable
remuneration right provided by Article 4 of Directive 92/100/EEC, the purpose of which is to
ensure that authors are actually able to benefit from the rental right provided by this Directive.

The  term  “cinematographic  or  audiovisual  work”  is  intended  to  be  very  broad  and  cover
cinema films, films made for broadcasting organisations, other film works, such  as films on
videotapes, and other moving images, whether or not accompanied by sound.

II.

1.

THE  BACKGROUND  OF  PARTIAL  HARMONISATION  OF  THE  NOTION  OF  AUTHORSHIP
OF CINEMATOGRAPHIC OR AUDIOVISUAL WORKS IN THE COMMUNITY

The issue in general

National  laws  have  provided  different  solutions  to  enable  film  producers  to  effectively
exercise  exploitation  rights  on  behalf  of  all  those  who  participated  in  the  creation  of
cinematographic  work.  These  solutions  are  based  on  the  practical  need  to  place  the  rights
concerned  in  the  hands  of  the  producer  and  yet  to  respect  the  basic  principles  of  author’s
rights  protection.  A  balance  has  to  be  struck  between  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.

The exploitation of film works has also been the subject of discussion at international level.
According to the Article 14bis of the Paris Act (of July 24, 1971) of the Berne Convention for
the  Protection  of  Literary  and  Artistic  Works,  the  determination  of  the  authorship  in
cinematographic  works  is  left  to  the  national  legislation  of  the  country  where  protection  is
sought.  The  Convention  lays  down  a  presumption  rule  in  Article  14bis(2)(b),  which,  in
practice,  implies  that  the  producer  of  the  cinematographic  work  is  presumed  to  control  the

2

Directive 92/100/EEC 19.11.1992, OJ L 346 27.11.1992 p.61

4

                                                
exploitation of the work. However, the principal director of a work may be exempted from the
presumption rule, thus leaving the issue to the national legislation of the contracting states.

Some states therefore let the copyright vest in the first place in the producer of the film, or in
the creators of the film with a transfer by law of the rights to the film producer at the moment
of  creation.  Other  states  closer  to  the  droit  d’auteur  tradition,  achieve  a  similar  result  by
rebuttable presumptions which pass rights to the producer. Finally, in another group of states,
author’s rights may pass to the producer on a contractual basis. These solutions differ not only
in principle but also in detail such as regarding authors and rights covered which are subject
to  a  statutory  transfer  rule.  Thus,  and  not  least  because  of  the  international  character  of
exploitation and distribution of films, the contractual assignment of rights has always had an
important role to play.

2.

The situation before harmonisation

Before  the  adoption  of  the  Directive  92/100/EEC,  Ireland,  Luxembourg  and  the  United
Kingdom  vested  initial  ownership  of  rights  in  a  cinematographic  or  audiovisual  work
essentially only in the producer of the work. All the other Member States considered – with
certain exceptions for employed authors - the principal director of a film as one of its authors.
However, these two approaches were brought closer together by the fact that in some Member
States, statutory rules on the presumed contractual transfer of exploitation rights and in other
Member States cessio legis solutions for the benefit of film producers were in place.

At Community level, issues of authorship were first addressed in the European Commission
Green Paper on Copyright and the Challenge of Technology3 with a view to an efficient fight
against  piracy.  In  this  Green  Paper,  the  Commission  stated  that  whereas  films  and  video
recordings  seem  to  be  protected  everywhere  as  cinematographic  or  audiovisual  works,  the
question  of  who  owns  the  exclusive  rights  or  who  is  presumed  to  be  able  to  exercise  the
economic  rights  on  behalf  of  all  who  participated  in  the  creation  of  the  work,  is  settled
differently  from  one  jurisdiction  to  another.  The  Commission  considered  further  that,  in
practice,  even  in  those  States  where  producers  are  not  automatically  granted  rights,
contractual arrangements have frequently been reached which transfer the necessary rights to
the producer and enable them to act against pirates.

The  Commission’s  initial  proposal  for  a  Directive  on  rental  right  and  lending  right  and  on
certain  rights  related  to  copyright4  did  not  try  to  harmonise  the  notion  of  authorship  of
cinematographic works. The idea of ensuring that, for the purposes of the  Directive, at least
the  principal  film  director  was  recognised  as  an  author  of  a  film  emerged  in  the  European
Parliament’s Committee on Culture, which passed an amendment in much those terms. This
amendment was rejected by the Committee in charge, the Legal Affairs Committee but was
finally adopted in plenary session by majority. The Commission integrated this amendment in
its amended proposal5. The new  Article 2(2)  was heavily disputed in Council.  In  the  end,  a
compromise was possible because exemptions with respect to the application in time of this
provision  were  granted  in  Article  13(4)  and  (5).  Furthermore,  the  controversial  issue  of
authorship of films gave rise to the joint statement concerning this report as mentioned above.

The  European  Parliament  took  also  the  initiative  to  include  a  provision  on  authorship  of
cinematographic  and  audiovisual  works  along  the  lines  of  the  compromise  found  for  the

3

4

5

COM(88)172 final
COM(90)586 final
COM (92)159 final

5

                                                
Directive  92/100/EEC,  into  the  Directive  93/83/EEC  on  the  co-ordination  of  certain  rules
concerning  copyright and rights related  to  copyright  applicable  to  satellite  broadcasting  and
cable retransmission6. As regards the Directive 93/98/EEC harmonising the term of protection
of  copyright  and  certain  related  rights7,  the  European  Parliament  proposed  even  more  far-
reaching  amendments.  The  final  solution  adopted  by  the  institutions  was  to  give  general
applicability  to  the  terms  of  the  compromise  reached  in  Directives  92/100/EEC  and
93/83/EEC.

III.

THE  ACQUIS  COMMUNAUTAIRE  ON  FIRST  OWNERSHIP  OF  COPYRIGHT  IN
CINEMATOGRAPHIC OR AUDIOVISUAL WORKS

1.

Directive 92/100/EEC

According  to  Article  2(2)  of  the  Directive  on  rental  right  and  lending  right  and  on  certain
rights  related  to  copyright,  the  principal  director  of  a  cinematographic  or  audiovisual  work
shall  be  considered  as  its  author  or  one  of  its  authors  for  the  purposes  of  the  Directive.
Member States may provide for others to be considered as co-authors.

As already indicated above, practical and economic considerations had, at the level of national
legislation, led to concentration of rights in the hands of the producer who was considered to
be  best  equipped  to  face  the  challenge  of  economic  exploitation  of  the  work.  Different
methods were in place in Member States. Either the ownership of rights was vested in the film
producer initially,  or  the necessary  exploitation  rights  were  passed  from  the  natural  persons
who participated in the creation of the work (recognised as “author” by most systems) to the
producer by statutory transfer rules. These rules have a similar result as those which recognise
film producers as authors in the first place because they vest initial or subsequent ownership
of rights in other persons than in the creators of the respective work.

Thus, the Directive also had to address the issue of statutory transfer of rights. According to
Article 2(6) in connection with Article 2(5), Member States may provide that an author shall
be presumed, subject to contractual clauses to the contrary, to have transferred his rental right
to  the  film  producer  when  he  concludes  a  contract  concerning  film  production  with  a  film
producer,  individually  or  collectively.  This  possibility  to  provide  for  a  presumption  rule
should be read together with Article 4 of the Directive, which states that, where an author has
assigned his rental right, he would retain the remuneration right which cannot be waived.

The  provisions  of  the  Directive  do  not  really  provide  for  an  overall  harmonisation  of  the
notion  of  authorship  in  cinematographic  or  audiovisual  works  as  the  definition  of
“authorship” is restricted to the “purposes of this Directive” and this purpose is, with regard to
authors,  the  harmonisation  of  the  rental  and  lending  right  only.  Thus,  the  definition  of
“author” only explains who is the initial owner of the rental and lending rights. As regards the
transfer  of  rights,  Article  2(6)  of  the  Directive  allows  for  a  presumption  of  transfer  of  the
rental right, but it does not permit a situation where the rental right belongs to someone other
than  the  author  from  the  beginning  by  operation  of  law.  Member  States  are  not  obliged,
however, to apply the rules provided in Article 2(2) and (6) to rights other than the rental and
lending rights.

6

7

Directive 93/83/EEC 27.09.1993, OJ L 248 06.10.1993 p.15, at art. 1(5)
Directive 93/98/EEC 29.10.1993, OJ L 290 24.11.1993 p. 9, at art. 2(1)

6

                                                
2.

Directive 93/83/EEC

According  to  the  Directive  on  the  co-ordination  of  certain  rules  concerning  copyright  and
rights  related  to  copyright  applicable  to  satellite  broadcasting  and  cable  retransmission,
Member States shall provide an exclusive right for the author to authorise the communication
to  the  public  by  satellite  of  copyright  works.  Article  1(5)  of  the  Directive  takes  up  the
compromise found in Article 2(2) of Directive 92/100/EEC for its purposes. Thus, the partial
harmonisation  of  the  notion  of  authorship  in  cinematographic  or  audiovisual  works  became
relevant not only to rental and lending but also to communication to the public by satellite.

The Directive does not provide for explicit provisions, such as those in Article 2(5) and (6) of
Directive 92/100/EEC on the presumed transfer of the rental right, with regard to the right of
communication to the public by satellite.

3.

Directive 93/98/EEC

Article  2(1)  of  the  Directive  harmonising  the  term  of  protection  of  copyright  and  certain
related  rights  stipulates  for  the  first  time  that,  in  general,  the  principal  director  of  a
cinematographic or audiovisual work should be considered as its author or one of its authors
(i.e. without restricting this definition to “the purposes of this Directive”).

As  regards  the  admissibility  of  rules  on  the  presumption  of  transfer  of  exploitation  rights,
Recital 4 of Directive 93/98/EEC stipulates that the provisions of this Directive do not affect
the application by the Member States of the provisions of Article 14bis (2) (b), (c) and (d) and
(3)  of  the  Berne  Convention,  which,  as  mentioned  above,  basically  leave  the  contracting
parties some leeway.

Furthermore, Article 2(2) of Directive 93/98/EEC provides the same point of reference for the
calculation of the term of protection throughout the Community. As the general rule for works
of  joint  authorship  in  Article  1(2)  is  based  on  national  rules  and  would  not  have  provided
sufficient  harmonisation  with  regard  to  cinematographic  or  audiovisual  works,  Article  2(2)
stipulates that the term of protection of cinematographic or audiovisual works shall expire 70
years  after  the  death  of  the  last  of  the  following  persons  to  survive,  whether  or  not  these
persons are designated as co-authors: the principal director, the author of the screenplay, the
author  of  the  dialogue  and  the  composer  of  music  specifically  created  for  use  in  the
cinematographic or audiovisual work. This provision means that in the calculation of the term
of protection, Member States have to take into consideration only the contributors mentioned
in the Directive regardless of who might have authors’ rights in film works at national level.

4.

Conclusion

Directive  93/98/EEC  has  consolidated  the  respective  provisions  set  out  in  Directives
92/100/EEC  and  93/83/EEC,  treating  a  cinematographic  or  audiovisual  work  as  a
collaborative work the principal director of which, as one of its authors, enjoys corresponding
copyright  protection.  This  partial  harmonisation  of  the  notion  of  authorship  was  somewhat
limited by  the  fact  that  until  the  adoption  of  Directive  2001/29/EC  on  the  harmonisation  of
certain aspects of copyright and related rights in the information society8 (which introduces a
harmonised reproduction right, a harmonised right of communication to the public including
the right of making available and a harmonised distribution right for authors of works), only
few exclusive rights of film authors had been harmonised at Community level. Whereas the

8

Directive 2001/29/EC 22.06.2001, OJ L 167 22.6.2001 p.10

7

                                                
latter  Directive  does  not  provide  for  a  presumption  rule  on  the  transfer  of  the  rights
harmonised,  articles  14bis(2)  and  (3)  of  the  Berne  Convention  might  be  seen  as  a  basis  for
allowing divergent national rules on first ownership of rights and presumed transfer of rights
also with regard to the rights harmonised by this Directive.

IV.

1.

REVIEW OF IMPLEMENTATION BY MEMBER STATES

Regulating authorship in Member States

In  respect  of  the  obligation  to  consider  the  principal  director  as  an  author,  some  Member
States did not consider it necessary to introduce implementing legislation as they thought they
were  already  in  compliance  with  this  obligation.  On  the  other  hand,  where  implementation
legislation was needed, Member States enacted laws at a seemingly variable pace regardless
of the  implementation  deadline  set  up  in  the  Directive.  However,  little  by  little  all  Member
States have now either modified their laws in order to comply with the obligation or let it be
known that their law already complied with the obligation already before the adoption of the
Directive 92/100/EEC.

In Ireland and the United Kingdom, the film producer is still considered as an author of a
cinematographic  work  by  law.  Before  Directive  92/100/EEC,  this  person  alone  enjoyed
copyright in the cinematographic work in these Member States. The producer was, and still is,
regarded as a creator of a film because he is responsible for  the necessary arrangements for
the making of a film, not least in a financial sense. Ireland and the United Kingdom have later
on explicitly added the principal director as  also qualifying for  protection as an  author.  The
situation  in  Luxembourg  is  quite  similar.  The  producer  and  the  principal  director  are
considered as first owners of copyright.

Spain,  Italy  and  Portugal  determine  precisely  who  the  authors  of  cinematographic  or
audiovisual  works  are  without  vesting  authorship  in  the  film  producer.  This  includes  the
director, the authors of underlying works of literature (script, scenario, dialogue, adaptation)
and the authors of the film music. Thereby, they exclude others, not mentioned persons who
gave creative contributions from being a co-author of a film and thus reach a high degree of
legal  certainty.  Greece  vests  authorship  in  cinematographic  or  audiovisual  works  in  the
principal  director  only.  However,  authors  who  participated  in  the  creation  of  the  film  and
whose  contribution  can  be  separately  exploited  normally  have  rights  in  their  own
contribution.

In Germany, Austria, the Netherlands, Denmark, Finland, Sweden, Belgium and France
the actual wording of the law does not give the precise answer to the question who is to be
considered as an author of a work. In these countries, the authorship is vested in the physical
persons whose creativity contributed to the intellectual creation of the film.

Germany and Austria vest authorship in cinematographic or audiovisual works basically only
in  authors  who  participated  in  the  creation  of  the  film  and  whose  individual  creative
contributions may not be separately exploited. In general, this is the principal director, but the
cameraman, the editor and the sound designer and others may be considered as film authors
too, provided that their contributions meet the requirements of originality in each individual
case.  Also  the  Netherlands  vests  initial  ownership  of  copyright  in  the  natural  persons  who
have made a creative contribution to the work. According to the prevailing view, this includes
the principal director.

8

Denmark,  Finland  and  Sweden  do  not  provide  for  any  specific  rule  relating  to  the
determination  of  authorship  in  cinematographic  or  audiovisual  works.  They  vest  authorship
according to the general rules on authorship in persons whose creative contribution is decisive
for the making of a work as a whole, regardless of whether their individual contributions may
be separately exploited or not. Normally these are at least the principal director and the writer
of  the  screenplay.  Others,  like  the  composer  of  the  film  music,  may  also  be  considered  as
authors  of  a  work,  provided  that  their  contributions  meet  the  requirements  of  originality  in
each individual case and play a decisive role in the work as a whole.

Belgium  and  France  combine  a  general  rule  relating  to  authorship  in  cinematographic  or
audiovisual  works  with  a  list  of  persons  who  are  presumed  to  fulfil  the  requirements  for
authorship. They vest authorship in persons  who participated in the creation of the film and
whose  individual  creative  contributions  may  not  be  separately  exploited,  authors  of  works
created especially for the film which can be exploited independently of the film and authors
of pre-existing works. However, the list  of persons  who  are presumed to be co-authors of a
film is limited and does not cover auxiliary or secondary authors.

2.

Regulating transfer of rights in Member States

As  appears  from  the  above,  the  number  of  authors  in  a  given  film  work  can  be  quite
considerable. Therefore, to assure the practical means for the exploitation  of  films,  Member
States  provide  rules  on  the  transfer  of  rights  in  film  works  and  underlying  works  to  the
producer, or the rules concerning works made in the course of employment stipulate the initial
ownership of rights. These rules differ considerably in various Member States as concerns the
method (cessio legis, rebuttable presumptions based on contracts, presumption of legitimation
along the lines of Article 14bis Berne Convention, assignment based on employment), as well
as the coverage.

As  concerns  the  method,  for  example  Austria  and  Italy  provide  a  cessio  legis  solution
according to which the copyright originates  in the creators of  the  film but  certain economic
exploitation  rights  are  transferred  to  the  film  producer  at  the  moment  of  the  creation  by
operation  of  law.  Belgium,  Germany,  Greece,  Spain,  France,  Luxembourg,  the
Netherlands,  Portugal,  Denmark,  Finland  and  Sweden  provide  for  a  rebuttable
presumption  of  transfer  of  rights.  The  presumption  is  based  -  with  regard  to  pre-existing
works  -  on  the  contract  permitting  the  audiovisual  adaptation  and  -  with  regard  to  the  film
itself  and  other  underlying  works  –  on  contracts  between  authors  and  film  producers
concerning  the  film  production.  It  seems  that  in  the  majority  of  legislations  a  contract  in
which the author undertakes to participate in the film is sufficient to produce the presumption
so that explicit contractual stipulations on the assignment of rights would be unnecessary.

Ireland and the United Kingdom identify the producer as an author of the film in the first
instance. However, the national law of these countries recognises the principal director as the
co-author.  The  question  on  how  the  copyright  is  divided  between  the  producer  and  the
principal  director,  seems  to  be  determined  by  agreements  within  the  margins  of  contractual
freedom of the parties. Legislative transfer rules provided by Ireland and the United Kingdom
only cover rental rights of authors of underlying works.

However,  it  must  be  pointed  out,  that  certain  Member  States  also  provide  that  where  a
cinematographic work is made by an employee in the course of his employment, his employer
is the first owner of any copyright subject to any agreement to the contrary. This is the case at
least in Ireland, the United Kingdom and the Netherlands. These provisions on works made in
the  course  of  employment  seem  to  exclude  the  principal  director  from  having  rights  in  the

9

work, if the principal director is working as an employed person. The Commission intends to
examine  further  how  the  rules  on  employers’  ownership  correlate  with  the  mandatory
provisions of the Directives  concerning  authorship of cinematographic or  audiovisual  works
and unwaivable remuneration right.

As  concerns  the  coverage,  laws  of  the  Member  States  provide  for  different  solutions.  More
specifically,  Belgium,  Germany,  Greece,  Italy,  Luxembourg,  the  Netherlands,  Portugal
and  Austria  seem  to  restrict  their  transfer  rules  -  more  or  less  explicitly  -  to  audiovisual
exploitation modes, thus excluding non-audiovisual merchandising rights and other derivative
rights,  theatrical  rights  and  graphic  edition  rights.  Spain  and  France  explicitly  exclude
theatrical rights and  graphic  edition  rights  from  the  scope  of  their  transfer  rules.  Denmark,
Sweden and Finland provide for a presumption rule which assigns the necessary exploitation
rights to the producer.

Despite many substantial differences, the various legislative presumption rules of transfer of
rights  seem  to  have  one  common  feature.  They  usually  cover  almost  all  contributors  to  a
cinematographic or audiovisual work except the authors of musical works. The  exclusion of
musical  authors  from  the  scope  of  presumption  rules  can  be  explained  by  the  fact  that  the
performing  rights  in  the  musical  sector  are  administered  by  the  internationally  established
system of collective administration.

V.

IMPACT OF HARMONISATION

The  concept  that  the  principal  director  of  an  audiovisual  or  cinematographic  work  is  to  be
considered  as  the  author,  or  one  of  the  authors  of  such  a  work,  was  introduced  with  the
adoption of Directive 92/100/EC. This has evidently strengthened the position of the principal
director  as  the  Member  States  have  gradually  modified  their  legislation  accordingly.  At  the
same time, the  importance  of  contractual arrangements  has  increased  as  they  have  balanced
the effects of the new rule. Agreements concerning the film production have been adapted to
take account of the modified legislation and to provide a new basis upon which to build the
exploitation  of  films.  Contrary  to  concerns  expressed  before  the  adoption  of  Directive
92/100/EC, harmonisation has not caused any difficulties in practise.

The impact of this partial harmonisation of the notion of authorship was somewhat limited by
the  fact  that  before  the  adoption  of  Directive  2001/29/EC  on  the  harmonisation  of  certain
aspects of copyright and related rights in the information society, only few exclusive rights of
film  authors  had  been  harmonised  at  Community  level.  Nevertheless,  those  Member  States
(Ireland,  Luxembourg  and  the  United  Kingdom)  which  had  to  change  their  legislation
provided  principal  directors  with  all  authorship  rights  and  not  only  with  rental  and  lending
rights or the right of communication to the public by satellite.

Finally,  it  should  be  pointed  out  that  the  different  steps  taken  to  harmonise  the  notion  of
authorship of film works at European level have not changed the basic situation completely.
Differences  in  detail  still  exist  with  respect  to  the  question  of  who,  among  the  group  of
persons involved in the making of the film, is considered as its author.

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VI.

1.

POSSIBLE NEED FOR FURTHER COMMUNITY ACTION

The divergent rules on first ownership of rights in the Internal Market

Although the Directives provide that the principal director of an audiovisual work should be
deemed to have the status of an author, they do not prescribe any other changes to authorship
of  audiovisual  works.  The  rules  on  the  presumed  assignment  of  rights  as  provided  by  the
Directives have only a very limited scope. There is still a continuing disparity as to who may
or may not be considered as author or first owner of  rights in a film in the various Member
States.  However,  the  considerable  differences  do  not  seem  to  cause  major  difficulties  in
practice. The different national solutions as regards ownership of rights in audiovisual works
were in practice overcome by contractual solutions and do not seem to have created obstacles
to trade which would impede the effective exploitation of rights across Member States.

2.

The  effect  of  non-harmonised  mandatory  rules  in  national  copyright  contract
law on the international exploitation of films

Contractual  freedom  as  a  means  to  overcome  difficulties  which  could  arise  from  diverging
copyright  legislation  is  not  unlimited.  Traditionally,  national  copyright  contract  law
provisions provide for different mandatory rules for the benefit of authors or users the purpose
of which is, in most cases, to protect the weaker party to the contract. These rules restricting
contractual  freedom  might  have  an  impact  on  the  producers’  ability  to  acquire  the  rights
necessary for the international exploitation of films. It cannot be excluded that such national
rules, unless harmonised, could lead to difficulties within the Internal Market.  If contractual
arrangements  remain  the  primary  means  for  the  exploitation  of  cinematographic  and
audiovisual  works  in  the  Internal  Market,  national  copyright  contract  rules  will  have  to  be
subject to continued scrutiny.

3.

The  possible  impact  of  the  conditions  applicable  to  contracts  relating  to
intellectual property on the Internal Market

The issue of authorship is closely linked to the issue of management of rights and will deserve
further  consideration  in  the  framework  of  the  follow-up  to  the  1996  Commission
Communication on Copyright and Related Rights in the Information Society9.

In this Communication, the Commission committed itself to continue its examination of the
management  of  rights  issue  in  the  light  of  the  development  of  the  market  especially  with
regard to the Information Society. The results of the International Conference on Management
and Legitimate Use of Intellectual Property, organised by the European Commission in July
2000  in  Strasbourg,  confirmed  that  the  market  place  is  in  a  continuing  process  of  adapting
licensing  schemes  to  the  needs  of  the  new  environment.  Therefore,  the  examination  of
contractual  law  aspects  relevant  to  the  exploitation  of  intellectual  property  remain  an
important  task.  Further  analysis  of  the  management  of  rights  in  Europe  will  have  to
concentrate  not  only  on  issues  such  as  collective  management,  the  various  forms  by  which
authors’ and related rights can be disposed of, copyright contract law and the possible impact
of  non-harmonised  limitations  to  contractual  freedom  on  the  movement  of  copyright-based
goods and services in the Internal Market, but also on the rules on ownership of rights and the
role these rules play for the allocation of rights and the distribution of goods and services.

9

COM(96)568 final, 20.11.1996

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With  regard  to  the  increase  of  transnational  exploitation  of  protected  works  and  services  as
one of the results of the information society, the Commission is already examining in detail
the conditions applicable to contracts relating to intellectual property in Member States with a
view  to  evaluating  the  possible  impact  of  the  existing  differences  in  national  law  on  the
Internal  Market.  This  examination  should  also  cover  the  different  national  rules  for  the
management  of  the  non-waivable  remuneration  right  as  governed  by  Article  4  of  Directive
92/100/EEC.

Through contractual arrangements, rights which are required for the exploitation of films may
be concentrated in the hands of film producers in a manner compatible with basic principles
of copyright and neighbouring rights. Such arrangements can thus be used as an efficient tool
for the distribution of cinematographic and audiovisual works in the Internal Market.

VII. CONCLUSION

As  this  report  demonstrates,  the  partial  harmonisation  of  the  notion  of  authorship  has
strengthened the position of the principal director of a cinematographic or audiovisual work
as  one  of  its  authors.  Community  legislative  acts  have  not,  however,  resulted  in  complete
harmonisation of the first ownership of rights in these works.

Contrary to the fears expressed before the adoption of the Directive 92/100/EEC, 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 in the effective tackling of piracy and
other unauthorised use of such works. Although it was argued at the time of the adoption of
the directive that this provision might lead to increased complexity in dealing with rights, in
practice, relevant exploitation rights are transferred to the producer by operation of law or by
contractual  arrangements.  Within  the  margins  of  contractual  freedom,  relations  between  the
producer  on  one  hand  and  other  rightholders  on  the  other  are  determined  by  agreements
concerning  the  film  production.  Also  potential  difficulties  resulting  from  disparities  in
Member States’ legislation are levelled by contractual arrangements.

Efficient administration of rights in  the  cinematographic  and  audiovisual  works has become
more and more complex as the exploitation channels of such works multiply together with the
development  of  information  technologies.  For  the  purpose  of  maintaining  the  status  of
contractual  arrangements  as  a  proper  tool  for  the  efficient  distribution  and  exploitation  of
cinematographic and audiovisual works in the Internal Market, these contractual arrangements
and conditions that apply to them under national law have to be subject to continued scrutiny.
The Commission will continue to study the issue of first ownership of rights and transfer of
rights together with the examination of issues relating to the management of rights in general
and analyse further developments in these fields.

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