EU Contractual Protection of Creators: Blind Spots and Shortcomings

Abstract

One key objective of copyright is to grant exclusive rights to creators to enable them to reap the full value of their creations. As a consequence, they should be able to transfer or license their rights to persons and companies more apt to exploit them commercially, thereby earning some revenues from such exploitation and transforming the work into an economic asset available on the market. Therefore, one of the first relevant acts accomplished by the author, after the creation itself, is to entrust someone else to commercially exploit her rights, hence to give up some part of control over her work. This first contract may be a tricky episode for creators as they will in most cases be in a weaker bargaining position, due to their inexperience, lack of information or desire to be published or produced at any cost. An unfair contract might contribute to creators not getting an appropriate remuneration for the exploitation of their works. In the European Union, as regularly surveyed, only a few creators can earn a sufficient income out of their creation and authors’ revenues are generally below the median income.

The contractual protection that is sometimes conferred to authors by European copyright laws, despite its justification and rightful intentions, does not seem to deliver on its promises to ensure that creators are not excessively dispossessed of their rights and get a fair payment for the exploitation of their works. This article reviews such existing protection and the provisions proposed at the EU level. It also looks at the flaws of the contractual protection of authors, including the isolation of the contract from the broader context of exploitation of cultural products, or the contradiction between the long duration of the contract and the dynamic nature of exploitation, enhanced by the digital context. It recommends changing our views on what regulation of copyright contract should be by extending some of its obligations to further exploiters, to better accommodate the dynamism of exploitation markets and to give meaning to the essential bargain between copyright transfer and work exploitation.

Keywords: copyright, contract, authors, contractual protection, remuneration, European Union