Co-written by Susannah Kendall
Much has been written recently about the harmonisation of copyright laws throughout Europe. However there are areas where significant differences exist between the common and civil law jurisdictions of Europe. One such area relates to the exploitation of works created by freelance writers. This article examines the different ways in which freelancers are treated under the two systems and considers what clues can be gleaned in relation to future developments in this area. The focus is primarily directed towards copyright in 'literary works' although identical or similar issues arise in respect of other works used in publications, in particular photographs and other visual works.
The major common law jurisdictions of Europe, namely the United Kingdom ('UK') and Ireland, focus on the economic interests conferred by copyright and classify copyright as a property right in which rights of ownership and exploitation are freely transmissible. The civil jurisdictions of continental Europe approach the matter from an entirely different perspective. In continental countries intellectual property is regarded as the most sacred, unchallengable and personal of all properties - an extension of the personality of the author. Accordingly, continental legislation is cast in terms of 'author's rights' (droit d'auteur) which include not only the economic rights of exploitation but also moral rights, personal to the author, which are retained even if the economic rights have been transferred. The key moral rights provided in civil law jurisdictions are the right to determine whether and how a work is to be published (publication right), recognition of authorship (paternity right) and to prohibit distortion of the author's work (integrity right).
Harmonisation of laws in Europe
Over the past decade harmonising legislation in the form of Directives to the Member States issued by the European Union are shifting the copyright law of the common law jurisdictions closer to the civil position. In this respect the most recent and far-reaching development dealing with copyright in the digital age, the Directive on Copyright in the Information Society, has confirmed that copyright law in Europe is firmly based on the continental concept of 'author's rights'.
The EU approach
The approach of the EU to harmonisation of copyright is fundamentally a civil law, continental approach - incorportating not only economic considerations but the view that copyright is an essential element of the cultural policy of the EU. Manifestations of this approach can be seen in the wording of Directives concerning copyright, for example the description in the Term Directive of the type of photograph that will qualify for copyright protection as a photograph which is the author's own intellectual creation reflecting his personality, and similarly the requirement in the Software Directive that computer programs be original in the sense of being the author's own intellectual creation. On the economic front copyright is viewed as more of a worker's right than a property right - the exploitation rights belong to the author not because he is the owner of the work but because it constitutes the fruits of his labour and that labour must provide him with an adequate means for a living. On the cultural side, the institutions of the EU are entitled to and do encourage cultural and linguistic diversity. The latter aim is considered by the EU to be supported by existing continental laws concerning the author's moral rights which is why such rights are progressively being enacted in the common law jurisidictions.
Copyrights in published works
Publishers operating in Europe require a working knowledge of the applicable domestic laws under which they operate and the relevant EU laws including the Database Directive and the Digital Copyright Directive (considered in more detail below).
The key copyright issues facing editors, journalists and other persons involved with the content of newspapers, magazines and periodicals concern the ownership of individual contributions and the rights to use and re-use such content in various formats. Since 1995 most European newspaper publishers have developed significant digital products (both off-line and on-line) of their own. In addition they usually have syndication deals for the use of their content in other territories (necessarily permitting translations and editorial changes) and for the use of that content in third-party databases. Consequently the importance of ensuring that copyright issues concerning content has been dealt with adequately has emerged as a fundamental issue.
The production of newspapers, magazines and periodicals generates a number of distinct copyright works. Using the UK as an illustration, newspapers, magazines and periodicals are 'collective works' i.e. works in which there are distinct contributions by different authors. A collective work may contain or result in a number of individual copyright works including:
the individual contributions from journalists/authors;
the newspaper or periodical, as a whole, as a 'compilation';
databases consisting of a collection of independent works where the selection or arrangement of the contents of the database represents the author's own intellectual creation;
the typographical arrangement of a published edition of a literary work.
In addition to these various issues over ownership of copyrights across the Member States must be added the effect of moral rights. Having regard to European copyright laws, electronic publishing raises these key issues for publishers and contributors alike:
ownership of copyright
the effect of employment on ownership of copyright
restrictions on transmission of copyrights
specific provisions dealing with publishing agreements
specific provisions dealing with exploitation in digital media
moral rights and restrictions on waiver
In every jurisdiction the first owner of copyright, subject to the...