In a meeting organized by the following societies: SAA (Society of Audiovisual Authors), its Latin American counterpart FESAAL (Federation of Latin American Audiovisual Authors Societies), and the CISAC (International Confederation of Societies of Authors and Composers), it was agreed to request a recommendation from the World Intellectual Property Organization (WIPO) to all member countries to pass a law on the right to remuneration.
The virtual event, titled "Audiovisual Authors' Rights in Europe and Latin America," took place on Wednesday, March 1st, and aimed to raise awareness about the remuneration rights of Audiovisual Authors, focusing on the best legal practices in both continents and inspiring other countries to develop a right to remuneration through collective management.
The meeting was moderated by Janine Lorente, with simultaneous translation in Spanish and English, and featured speakers Daniella Castagno (Audiovisual Screenwriter and president of ATN Chile), Henrique de Freitas Lima (lawyer, audiovisual director, and president of DBCA, Brazil), Urša Menart (audiovisual director belonging to AIPA, Slovenia), Aleksander Pietrzak (Audiovisual Director and member of ZAPA, Poland), Dr. Cristina Perpiñá-Robert Navarro (Director of Legal Affairs at CISAC), Dr. Germán Gutiérrez (Author’s rights specialist lawyer representing FESAAL), and Frédéric Young, representing the Belgian Society of Audiovisual Authors (SAA).
Different countries, the same demand
In the introduction to the speeches, Janine Lorente said, "This webinar is important because, being on two different continents, all the collective management societies that are speaking have the same objective, the same goal. They have come to the conclusion that the only and best way for audiovisual writers and directors to have good protection is to rely on the law, on local law."
The first to testify were the participants from Poland and Slovenia, who - through a subtitled video - told how they faced companies that did not want to accept the protection of the law.
Polish participant Aleksander Pietrzak stated that "ZAPA won several court cases in which cinemas and television did not want to pay for Author’s rights. It is unfair that in so many countries, rights are not paid. We are trying to add OTT platforms to the sector of users who should pay remuneration to authors. I was able to choose not to do commissioned work and to do my projects thanks to the remuneration I received for Authors’ rights from previous works. The law must monitor users for the safety of artists."
For her part, Slovenian Urša Menart highlighted that they entered the digital system before their rights were established in the analog system.
"There was a big gap between Audiovisual Authors and musicians or writers. We gave away remuneration rights by contract, which made it impossible for the Author to negotiate if the producer was big. It was possible to negotiate with an independent producer if you were an established author, but only for small issues," she said.
In October 2022, Slovenia implemented probably the most modern law in the European Union achieved by the Authors' struggle.
"We had to negotiate with politicians and educate them about what Audiovisual Authors’ rights are, what rights mean, and why we need them. We had to negotiate between actors, Authors, and producers. It is easier to get what we want if we have established what we want among ourselves and fight united," the director said.
Urša Menart pointed out that "probably Slovenia is the only country in the world where audiovisual authors have more managed rights than music authors. Producers did not want to give up the presumption of rights transfer. We negotiated that each group has its non-transferable rights: authors have our right to remuneration, producers and actors have theirs, and they cannot be transferred. This allows us to think long-term."
Regarding the situation in Chile, Daniella Castagno said that "the Ricardo Larraín law established non-waivable and non-transferable remuneration rights for audiovisual directors and screenwriters in Chile since April 2017."
The audiovisual screenwriter and president of ATN said that "it was a struggle of more than 15 years to achieve it. We managed to get the right to be paid to the exhibitor (platform, channel, cinema) for broadcasting, to collect and distribute by collective management societies. Previously, it was assumed that the rights were transferred to the producer of the work. We managed to have our rights as authors recognized. Beyond the legal recognition of the right (having achieved the law), it was difficult to enforce the right because they were very reluctant to comply."
Castagno maintained that "the recognition of the right, similar in different countries, allowed us to establish alliances such as FESAAL, which allows for the exchange of experiences and mutual support. After the meeting in Switzerland as observer members, FESAAL and AVACI are working on a text to achieve a recommendation from WIPO to member countries to sanction remuneration laws in countries that do not have them."
Frédéric Young, representing the Belgian SAA, stated that in 2015, they obtained "the first non-waivable right for cable transmission. The EU, many years before, imagined these remuneration rights. This was a way to extend something that was already in the framework of Authors’ rights. When the EU began to think about the appearance of the digital directive of 2001, we really fought alongside the SAA and all audiovisual authors' organizations to convince national and European authorities to change their vision and better understand why this situation was unacceptable. It was an incredible battle."
The Belgian stressed that "success was achieved by being united, we managed to have the voice of Authors considered in parliament, with the principle of obtaining appropriate and correct remuneration for all the work done. A cross-sectional remuneration for performers and authors, which is very important. They are foundational stones from which we can continue to grow."
Henrique de Freitas Lima from Brazil recounted that "for 30 years, we fought a very strong battle in the Justice system and managed to collect the rights of composers, both for music and music for movies or television. The Escritório Central de Arrecadação e Distribuição (known as ECAD, which could be translated as Central Collection and Distribution Office) brings together seven entities that in 2022 collected a record-breaking $200 million, most of it from streaming platforms."
The lawyer and Director affirmed: "we always dreamed of having a collective management society of Directors. We reached out to ECAD to belong to the same organization until eight years ago, with great support from DAC Argentina, Directores Brasileiros de Cinema e do Audiovisual (DBCA) was created."
The president of DBCA stressed that "until the end of 2022, we had a political scourge: a far-right government" where "Culture was the subject of a war during those four years. Today we have a new government dedicated to supporting Culture" and added that "Brazil is a very important audiovisual producer. The numbers are incredible. It is a shame for us that in Brazil, screenwriters and directors' remuneration rights are not paid."
Germán Gutiérrez from Argentina stated that "the right to remuneration not only has to be non-waivable, it has to be inalienable and non-transferable. If it is non-waivable, it continues in commerce. The author can choose not to waive it but still sell it. If it is non-transferable, there is no possibility for unscrupulous individuals to bypass this important right for Authors."
The lawyer specialized in Authors' rights" affirmed that "societies have to fight as we have done in Latin America to legislatively obtain the recognition of an inalienable and non-waivable right to remuneration. FESAAL went to Geneva for the WIPO assembly and we saw that there was no Authors’ rights issue on the agenda. They only talked about modifying a broadcasting treaty from 1961. We have not made any progress in the treaty since 1997. We had a meeting with Sylvie Forbin from WIPO and Geidy Lung, and from there arose the possibility of making a recommendation through WIPO to achieve this right where it is not recognized."
Dr. Cristina Perpiñá-Robert Navarro recounted that "in 2018, CISAC commissioned a global study on the importance of a remuneration right for audiovisual works to a professor from the University of Catalonia who mapped the world's legal systems and concluded that the most effective legal mechanism to achieve recognition of this right to remuneration is that it must be non-waivable, recognized by law, inalienable, proportional to the use of the work, and subject to mandatory collective management."
The Director of Legal Affairs at CISAC stated that "the user pays for the right, not the producer, so there is a balance between allowing the producer to commercialize the work when they are granted the rights to do so, but reserving the right to remuneration, which is collected from cinemas, platforms, television, and so on. This way, the author's success is tied to the success of the work. This report is publicly and freely available on the CISAC website."
Unity is strength
In the concluding remarks, Janine Lorente emphasized that "there is a movement to share and find solutions together" and asked each of the speakers to say "what they would tell a WIPO legislator if they had to address them."
Urša Menart urged that "politicians listen to their authors. It is easy to look at France, the United States, or Spain, which have a strong position, but each country has its specific situation, and a solution cannot be transferred from one place to another."
Polish Director Aleksander Pietrzak asked, "do they really want to protect big companies over their national authors? Making a film can take two or three years of our lives. These Author’s rights help us complete that work throughout our lives. Platforms should be integrated into the remuneration ecosystem before they grow and absorb all forms of creation. Their budget is enormous. The law must be in favor of the weaker party. Organized in collective management societies, artists are stronger to achieve this."
Daniella Castagno said that "unity is fundamental. The fact that we did not go alone, but with support. The strength we had to achieve our bill was the arrival of international entities that came to support us in Chile, such as ARGENTORES and AGADU, which later formed FESAAL."
The Audiovisual Screenwriter and president of ATN Chile stated that "that pressure was crucial for the government to take action. Together we are stronger than alone, and politicians, seeing that this is happening in other countries, realize that they are being left behind. That makes them politically incorrect. I think the strength is in continuing to support each other, in giving more growth to our organizations in the unity of authors' rights. Having a common force that supports us, where those who have already achieved this right can present themselves as a block, saying 'they have an obligation to do it.'"
Henrique de Freitas Lima stated that "DBCA has been around for eight years and has required four years to be able to collect. If we can get the government to be with us, we can make audiovisual authors receive what musicians already receive. DAC Argentina has provided us with financial support since the beginning of the entity. We would not have reached this point without them, I publicly thank them. There are factors that favor us. The clarity of what we want, unity, a more interesting political environment. I am convinced that we will achieve our right in 2023. If we do not achieve it, we will have to go to court, but I hope that does not happen."
For her part, Cristina Perpiñá-Robert emphasized "the need for an irrevocable remuneration right with mandatory collective management as the most effective mechanism" and highlighted that "CISAC's revenue report was 608 million for the entire audiovisual world compared to a trillion euros for other areas. It's only 6% of the world's Author’s rights revenue. Music is even recognized within the audiovisual industry to collect with management societies, and that doesn't disrupt production. That can easily be extended to directors and screenwriters. What we're trying to do is convey that message locally and at the European level."
Germán Gutiérrez stated that "it is a goal for FESAAL, SAA, and CISAC to obtain this recommendation from WIPO. When they went to modify local laws, there was no international document that talked about this right to remuneration. A WIPO recommendation will help member countries of that organization to transform the right to remuneration into a positive right."
Meanwhile, Frédéric Young said that "without Authors, there are no projects in the cultural industry. WIPO has to support this and make new proposals based on best practices. Collecting information, breaking it down nationally or internationally. I think it is a very important job that WIPO is doing. They have already done it and will continue to do it."
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