What is the author's right?
The authors benefit from an exclusive right for some form of exploitation of their works. Every time a work is created - a book, a song, a painting, a movie -, its author becomes the owner of the work - he or she acquires the author's right. Basically, this means that the creator decides if his/her work will be used and how.
Becoming the owner of this right does not require any formality generally. In the Letter of the author's right of CISAC, "the author's right is based on the act of intellectual creation." What is needed is that the works are determined in a tangible manner. From that moment on, the author is guaranteed legal protection, whose nature is given by the author's rights law.
The need to protect the author's rights
"The authors of literary, musical, artistic and scientific works have a spiritual function whose benefit extends to all mankind, remain in time and has material influence in the evolution of civilization." (Letter CISAC, art. 1)
One of the essential forms by which our association recognizes the critical importance of the creation is by the protection offered by the author's rights. The legal protection granted by the author’s right law provides the authors with the recognition of their work and allows them to obtain a fair economic compensation for their creative activities.
Although the protection of the law should ensure the authors that their works may be disclosed without fear of illegal use, the generalized illegal copy of music in Internet and the continuous piracy trend show that the legal theory and the daily practice do not always agree. For this reason, the authors and their representatives struggle continuously to defend and promote the application of author's rights.
What works are included?
The type of works covered by the author's rights include: literary works such as novels, poems, plays, reference works, newspapers and computer programs; databases; movies, music compositions and choreography; fine arts such as paintings, drawings, photographs and sculptures; architecture; adverts, maps and technical drawings.
The terms "literary and artistic works" comprise all the productions within the literary, scientific and artistic field, regardless of the form or manner of expression, such as books, brochures and other writings; the conferences, speeches, sermons and other works of the same nature; the dramatic or dramatic-musical works; the choreographic works and the pantomimes; the musical composition with or without lyrics; the film works, which include the works expressed by a procedure similar to film making, the drawings, painting, architecture, sculpture, engraving, lithography; the photographic works which include those expressed by a procedure similar to photography, the applied arts works, the illustrations, maps, blueprints, sketches and plastic works related to geography, topography, architecture or the sciences. (Berne Convention, art. 2 (1))
What rights does the author's right grant?
The author of a piece of work has the exclusive right to use or authorize others to use the work under the agreed upon conditions. This generally means that they can prohibit or authorize:
- Its reproduction, such as in a printed publication or a sound recording;
- Its public performance, such as in a play or a musical piece;
- Recordings of a work, such as in the form of compact discs, cassettes or videocassettes;
- Its broadcast by radio, cable, satellite or through the Internet;
- Its adaptation, such as a novel in a script;
- Its translation to other languages.
How long does the author's right last?
The international protection standard set forth by the Berne Convention is for the author's life and 50 years after his/her death. However, in many countries, such as United Stated and the countries of the European Community, the protection has extended to the work author's life plus seventy additional years. Once this period is finished, the works are accessible for public domain and may be used freely by anyone.
Author's Right or copyright?
From the general point of view, these two can be confused. From one continent to another, people talk about author's right and copyright as if they were the same thing. This blurred outline contains two different concepts of the author's right, on which the world legal systems are based.
The term "Author's right" is based on the idea, born in Continental Europe, that a work is closely related to its creator. The work cannot be separated from its author, such as a boy from his father.
The concept of "copyright" comes from the English tradition, according to which the authors have a property right over their creations and they can trade it based on economic principles.
"The intellectual work is, in turn, a product of the author's personality and a source of economic interests" (Letter of author's right of CISAC, art. 7)
The CISAC has a wide definition of the author's right that brings the idea of the author's right and the copyright to coexist, such as it is reflected by most of the laws on author's rights of the majority of the countries.
There are two theories closely related to the discussion about copyright and author's right that are the center of the current international law of author's right. The first theory sets forth some economic rights. It states that the authors must be compensated for their unique creative abilities. The second theory states the intimate connection between the author and the work and states that the authors should have a moral right to restrict the alteration and the exhibition of his/her works, even after they have transferred their economic rights to a third party, such as an editor.
he "economic rights" include the right to authorize, in return for payment, or to prohibit the exploitation of a work or its reproduction in any manner whatsoever. The economic rights are as follows:
- The reproduction rights:
- Broadcast by radio or television;
- Broadcast by cable;
- Public performance;
- Public recitation;
- Public exhibition;
This right, which in principle belongs to the author, may be transferred to enable the exploitation of a work. In return for the transfer of rights, the author will receive remuneration, which must be proportional to the income generated by exploiting said work.
The "moral rights" are useful to protect the integrity of the work, prohibiting any modification with the prior consent of its author. The moral rights are generally for life and non-transferrable and are related to the author as a person, being the latter the only one with capacity to exercise them. They provide the creator:
- The respect of his/her name;
- The respect of his/her author status and the integrity of his/her work;
- Assignment of the work ownership to the author;
- Authorization to the author to decide if a work must be known to the public or not.
The Author's right history
We can go back to the old world and find emerging ideas about the modern concept of the author's right. The Greeks' point of view about individuality revokes our recognition of the author's and the work uniqueness. In Rome, contracts could be signed with booksellers in which cases, the poet Martial complained about the illegal recitation of this work.
However, the authors did not start to claim the right over their intellectual work until the arrival of modern times, when the invention of the Gutenberg's printing allowed the mass distribution - and piracy - of the works. A precocious author in selling his rights was John Milton, who granted the license of his famous poem The lost paradise in 1667. Unfortunately, as it seems, the license only made him earn 10 pounds before this death in 1674.
The British Statute of Anna of 1710 is known by most of the people as the first modern law on author's right. However, its protection is limited to the piracy of printed works. Two historical events - the French Revolution and the US Independence - led the author's right to its current form, based on two main principles. On one hand, an economically tradable property right, granted for the first time by the US Constitution of 1787. On the other hand, France and Germany developed the idea of author's unique expression. Inspired by the German philosopher Kant, who said that a work of art cannot be separated from its author, the French writer Beaumarchais started to organize the authors concerning to the first world authors' association. In 1791, the French National Assembly approved the first law of author's rights.
Almost a century later, the authors received the international protection of their work. The Berne Convention for the Protection of the Literary and Artistic Works was signed in 1886. At the end of 2004, almost 157 countries had adhered to this treaty.
Modern history was written in 1996, when the Internet treaties of the OMPI prepared the author's rights for the 21st century. In 2002, both treaties became effective, since they were ratified by a minimum of 30 countries.
"Every person has the right to the protection of the corresponding moral and material interests due to the scientific, literary or artistic productions he/she is an author of" (Art. 27.2) Universal Declaration of Human Rights (1948)
The international protection principles of the author's right, presented for the first time in the Berne Convention of 1886, are gathered in a significant body of the international law. The following are among its main treaties and conventions:
The Berne Convention for the Protection of the Literary and Artistic Works (1886)
The basic principles governing the protection of the author's rights at international level were established by the Berne Convention for the Protection of the Literary and Artistic Works. Signed by 157 countries by the end of 2004, the Berne Convention sets different rules, such as the "national treaty", that means that in each country, the foreign authors obtain the same benefits concerning the protection of their rights, as the national authors.
Universal Convention on Author's Right (1952)
Under the sponsorship of UNESCO, this convention was created to establish an author's right protection system, which is capable of ensuring the respect of the individual's rights and of encouraging the literature, the sciences and the arts. Its most well known result is the famous symbol ©, meaning that a work is protected in its country and therefore, in all the countries tat signed the Convention on Author's Rights. Moreover, the convention provides the standards for an efficient and proper protection of the author's right, such as the basic rights ensuring the authors' economic interests and the protection conditions.
International Convention on the Protection of Performing or Executing Artists, the Producers of Phonograms and the Broadcasters (the Rome Convention) (1961)
The Roma Convention extended the protection of the author's right to the related rights: the performing artists benefit from the rights on their performances or executions, the producers of phonograms on their recordings and the radio and television organizations on their programs. The protection provided for under this convention varies depending on whether it is provided to the artists or the producers of phonograms and the broadcasters. For the former, the protection includes the possibility to prevent some uses of their performances without their prior consent and is subject to certain conditions, while the latter benefit from the exclusive right to authorize or prohibit.
Agreement regarding Aspects of Intellectual Property Rights related to Trade (Agreement regarding the ADPIC) (1994)
In order to reconcile the international trade with a proper and efficient protection of the intellectual property rights, the agreement regarding the ADPIC was created to ensure the setting of appropriate rules and principles related to the availability, extension and use of the intellectual property rights related to trade. The agreement also establishes the means to strengthen said rights.
Treaty of the OMPI regarding the Author's Right (WCT) and Treaty of the OMPI regarding the Performance or Execution and Phonograms (WPPT) (1996)
The Treaty of the OMPI regarding the Author's Right (WCT) and the Treaty of the OMPI regarding the Performance or Execution and Phonograms (WPPT) were developed in 1996 to adapt the protection of the authors' rights to the challenges raised by the arrival of the digital world. The WCT, aimed at guiding the author's right legislation in the digital era, became effective on March 6th 2002. The WPPT, related to the performance or execution and phonograms became effective on May 20th 2002.
Collection of Electronically Accessible Laws (CLEA)
The database CLEA, established and managed by the OMPI, constitutes an international electronic file of legislation about intellectual property.
Europe and USA
In addition to the legislation addressing the author's right issues worldwide, the laws of supranational entities such as the EU and countries such as USA deserve attention in view of the impact of the author's right in the world. According to the specific needs of its region of origin, its objectives address a wide variety of topics, such as the protection of the databases and of the author's right in the digital era.
Some of the main European and American laws are as follows:
- Directive 92/100/EEC of November 19th 1992 regarding rental and lending rights and other rights related to the author's rights within the scope of the intellectual property;
- Directive 96/9/EC of the European Parliament and the Council of March 11th 1996 regarding the legal protection of the databases;
- Directive 2001/29/CE of the European Parliament and the Council of May 22nd 2001, regarding the conciliation of certain aspects of the author's rights and related rights in the information society;
United States of America
- The "Digital Millennium Copyright Act" (1998)
- The Digital Millennium Copyright Act (DMCA) is intended to update the American law regarding the author's right in the digital era, waiting for the ratification of the treaties of the World Intellectual Property Organization (OMPI).
- One of the key topics of the DMCA is the provisions on the avoidance of the author's right protection systems, a fair use in a digital environment and the responsibility of the online services provider.
The author's right in the digital era
Preserving an old balance in a new world
At first sight, one may feel tempted to consider Internet as a threat for authors and their rights. The music industry was shocked when the MP3 technology and the peer-to-peer services enabled the free worldwide use of musical works protected by the author's right. Besides, not only the music is involved since any type of work can be distributed through the Internet.
It is estimated that the global music piracy business contributed with 4.3 billions of dollars in 2001, while the audiovisual sector loses 3 trillions of dollars a year due to the illegal file download.
However, the authors and their representatives remember more and more what has been clear since the beginning: the worldwide network also offers unparalleled opportunities to the creative world. The authors had never had before the possibility to make their works known to so many people, regardless of their location.
The CISAC is in favor of a positive approach to the arrival of the information era. The Confederation is giving new impulse to its dual mission: protect the authors' works and encourage its distribution.
"The author's interest is to see its works spread as extensively as possible. By protecting the intellectual creation in its origin is how the general culture development and its worldwide spread are most efficiently favored" (Letter of author's right of CISAC, art. 3)
The efforts of CISAC focus on preserving a veteran and confident balance in a new world: by making available the highest number of works to the highest number of people possible and by creating, at the same time, an online environment that ensures the proper protection of the authors' rights.
To do this, the CISAC has a dual mission:
- Develop the means to avoid piracy, such as, the illegal copy of compact discs.
- Develop some schemes to avoid the illegal distribution of works in the Internet.
The collective management
The collective management is the exercise of the author's right by bodies representing the authors and being in charge of strengthening their rights.
The need of a collective management
The individual authors find it increasingly difficult, even impossible, to control the use of their works. For example, the BBC uses almost 60.000 music pieces every week. Besides, the authors do not need to waste their time supervising their rights. They are creators!
On the other hand, it would be very difficult for the users of works to address the beneficiary himself/herself every time they use a work, especially if this work, a movie for example, is the joint work of different authors with different creative categories. As it happens with authors, the broadcasters such as the BBC have better things to do.
The solution found by the individual authors (and there are around two million who are members of, or are affiliated to the CISAC associations) to fill in the gap between them and the users of their works was to get together and manage their rights collectively. So, they created collective management associations.
Collective management organizations
The authors benefit from the activities performed by a collective management organization. These activities include (among others):
- Collection of royalties and distribution thereof among the authors;
- Legal support, such as the preparation of standard contracts, the granting of licenses and the authorizations of use; the negotiation of rates and the conditions of use with the users;
- Political actions in favor of the efficient protection of the author's rights; said actions may be performed before the national or international organizations representing the author's right community, either governmental or not;
- Social and cultural actions promoting the authors' interests and protecting their well-being.
Through the authors' rights management, the collective management organizations make a valuable cultural and economic contribution to the creative world. The remuneration the authors receive for their works allows them to develop and apply their talent, thus improving the intellectual and spiritual function of the arts in the society. This means an important service for the users of the works, since they are provided with proper unified access to the rights, and in the case of the so-called "global agreements", a unique and permanent authorization to use all the protected repertoire without complex formalities.
"Think globally, act locally"
Following the principle of the national treaty established by the Berne Convention, the foreign beneficiaries are treated in the same way as the national ones. Therefore, within the limits of its country, a collective management organization will apply the national legislation in the author's right field regarding both the national and foreign artists.
The CISAC encourages a global network of collective management organizations, where this principle is supported by means of mutual representation agreements. They enable the organizations to manage the foreign repertoires in their national territory, exchange information and pay the corresponding royalties to the foreign beneficiaries.
Understanding the collective management
From the development of a piece of work until the distribution of the corresponding royalties
As soon as an author has finished his/her work, a process is activated which purpose is to ensure the application of rights. This process is called collective management and is carried out by the collective management associations. It ends when the author received the benefits from his/her creation.
This process comprises the following stages:
Registration and Documentation
A work is protected by the author's right law from the very moment of its creation. It only needs to be tangible.
However, the author's associations encourage the authors to register all the works they create, since it allows them to efficiently exercise their rights. The works registration conditions vary from one association to another.
The basic information required to efficiently protect the intellectual property rights are the information about the author and his/her works. This documentation enables the collective management associations to carry out their tasks.
For example, the only way the author associations may take care of the distribution of royalties is based on solid documentation. It may have thorough files on their members on one hand and of the relevant repertoire on the other.
Granting of licenses
By representing the authors, the collective management associations are in charge of authorizing the use of an author's work. If a user meets the conditions set forth by the association, he/she will be authorized to use a certain work.
The main condition to use a piece of work is the payment of royalties. Moreover, we can also consider the rights arising from the authors' moral rights, such as the integrity of their work and the respect of their name.
The rates are generally settled through negotiation between the authors associations and the users. Sometimes, the law determines the rate, such as in the case of "droit de suite" or of private copy.
The authors associations will manage the different types of rights according to the relevant type of work (music, literature, audiovisual works, multimedia productions, etc.), depending on the form of exploitation of the repertoire they represent.
- Musical works
- Audiovisual works
- Dramatic works
- Printed works
- Visual and fine arts
When an author association grants a license to use the works, the next step is to collect the royalties that the user agreed to pay.
In case of failure to pay said royalties, the author association will intercede for the damaged author and if necessary, the author association will defend his/her case in court.
Once the royalties have been collected, the association is responsible for the distribution of the corresponding amounts to the individual beneficiaries in such a way that all of them receive the part they are entitled to by law. Generally, an amount is deduced from the royalties to cover the administrative expenses. According to the CISAC standards, the administrative expenses must not exceed the 30%.
In practice, the simple and fair principle of equitable distribution is pretty complicated. Many works do not have only one author but many, so, how do we distribute their royalties? In addition, most of the authors associations are not in charge of a few pieces of work but of millions. Distributing their remunerations is a huge task. The author associations have created distribution departments with great information technology to achieve this goal Link to CISAC News November "The CISAC will manage a database about distribution"