(§) Section 2 Work
The subject of copyright law is a literary work and another artistic work and a scientific work which is a unique result of the author‘s creation and is expressed in any objectively perceivable form including the durable or temporary electronic form, regardless to its extent, purpose or significance (hereafter only „work”).
The work is namely a literary work expressed in speaking or in writing, musical work, dramatic work, dramatico-musical work, choreographic work and pantomime work, photographic work and work expressed with a method similar to photography, audio-visual work as it is a work of cinematography, plastic work as it is painting, graphic and sculpture work, architectonic work including work of urbanism, non-decorative work and cartographic work.
(§) Section 59
An audio-visual work and works used in an audio-visual manner are not a collective work.
Author of an Audio-Visual Work
The Director of an audio-visual work is considered to be its author. Thus the rights of the authors of works used in an audio-visual manner are not concerned.
Rules for the Distribution of Charges Taken by Collective Administrator
From the charges taken pursuant to (§)Section 25, 3, letter a) and c) belong as far as the apparatus used for manufacture of sound recordings is concerned and from unrecorded supports of sound recordings : 50% to the authors and 50% to performing artists and producers of sound recordings, divided in equal portion, (b) as far as the apparatus used for manufacture of audio-visual recordings isconcerned and from unrecorded supports of such recordings : 60% to the authors (it is 15% to the authors of literary, dramatic and dramatico-musical works, 14% to directors, 11% to cinematographers, 11% to the authors of musical works with or without texts, 9% to architects, set designers and audio-visual artists of audio-visual works) and 40% to performing artists and to producers of audio-visual recordings of works (it is 25% to the producers of audio-visual recordings of works and 15% to performing artists, to the authors of choreographic and pantomime work).
EXPERIENCES WITH AUTHORSHIP LAW IN CZECH REPUBLIC
The Association of Czech Cinematographers would like to add its views to the debate on the issue of copyright on the work of cameramen, as follows:
The film industry has a long tradition in the Czech Republic. The first films to be shot here date fromthe very beginnings of cinematography. In the period after the Second World War cinematography was nationalised. The thriving film industry was strongly supported by the Czechoslovak state.
Films served the communist totalitarian government as a propaganda instrument. The production of thefilm industry was therefore run in such a way as to achieve the best possible technical and artisticquality for films.
It was at this time that the Academy of Performing Arts, an institute of higher education, was established in Prague, together with its film faculty, known as FAMU. Today FAMU continues to produce graduates for the creative film professions, awarding them the title of MgA (the equivalent of the American MA – Master of Arts).
It is clear that the communist totalitarian system must have recognised the creativity, professionalism and copyright rights of the individual professions, including that of cameraman. Otherwise they would never have awarded graduates in the cameraman’s profession a university-level arts diploma.
Today it is surprising that an open, democratic, capitalist society deliberately and systematically avoids officially recognising the professional copyright rights of cameramen. Is it so painful for production companies to cope with the obligations arising from the copyright rights of the profession of cameraman? As we know, in some European countries cameramen’s copyright (or joint copyright) in their work has still not been recognised.
Countries where cameramen’s joint copyright in films or their copyright in the visual parts of films have been recognised by law can be numbered on the fingers of one hand. For example, in our case, in the Czech Republic, cameramen’s copyright in the visual component of audiovisual works (like the copyright of the set and costume designers) is recognised by law. Even so, we have great problems in obtaining our rights. We are forced to sign disadvantageous contracts that are drawn up to favour the other side, not only with the state Czech Television company, which has something of a monopoly status, but with other production companies as well. Otherwise we are not allowed to shoot a film. Such a situation is possible because of the legal immaturity and inexperience of the Czech legal milieu, but also because people point to the position in other, larger, European countries. Czech producers do not want to respect cameramen’s copyright status, in the sense of remuneration for each use of the work, at any price. That is why, although we have a copyright law for cameramen, we too need the European copyright status of cameramen to be strengthened and promoted. It is one thing to declare that we have copyright in audiovisual works, and quite another to protect this copyright of ours in practice. We therefore recommend that IMAGO sets out to try and resolve this whole issue globally. It is not enough to fight for copyright, it is also necessary to fight for the rights arising from this copyright. After the first step of officially gaining copyright status for cameramen, the struggle must continue. Royalties from the performance of the work are in fact a serious problem for producers. In the Czech Republic they started to offer us, from a position of power based on a monopoly, the same fees (and sometimes even lower ones) than in the previous period, but at the same time they started to divide the sum into two parts. The first is the fee for producing the work and the second represents all royalties for the use of the work. In this way, paradoxically, the value of cameramen’s work has been reduced and royalties have effectively not been taken into account at all.
Unless this situation is resolved by law, then the whole idea of copyright law is pointless. It seems that one way of dealing with the situation in our country might be to have all cameramen represented by an agency that would act as our collective administrator in cases where there is no collective administration of copyright. The payment of royalties to musical composers has functioned in a similar way for many years now. The collective administrator for composers has the exclusive right to collect royalties for their works. The producer is thus forced to agree a fee with the composer for the creation of the work, and sends the royalties to the collective administrator. This model seems to us at present to be the most effective one, because of the stronger position of the collective administrator in the face of the legal position built up by the producers. In such cases the copyright owners are always outsiders who do not really have the time to deal with these complex legal procedures. Unless the rights of cameramen arising from their copyright status is dealt with globally, the producers and distributors will always have scope to use their monopoly position to fix cameramen’s fees at the level they want and to rob them of their royalties.
Today, after the successful integration of the economic interests of the EU member states, cameramen are presented with an unprecedented opportunity to unite their views and positions and, using this united strength, to fight in the EU parliament to achieve a position whereby all cameramen hold joint copyright in films. We venture to believe that this would have a positive impact for all cameramen throughout the world, for such a precedent would certainly have repercussions beyond the borders of the EU.We are aware that a distinction exists between copyright in the visual component of a film (something which on the basis of European moral and ethical norms can surely not be questioned) and joint copyright in the whole film.
This is a fundamental distinction and we hope that intensive discussions on this point will take place as soon as possible, and that the profession of cameraman will be re-defined as a profession that holds joint copyright.
The Association of Czech Cinematographers takes a clear stand in favour of cameramen’s joint copyright in the whole film being recognised by law. It is our belief that cameramen and their artistic, creative work create the value of the emotionally effective visual component of a film, which, however, cannot be regarded as existing in isolation. The art of film language does not just consist in the screenplay, the technical scenario, or the storyboard. It does not just consist in the direction.
It also consists in work with the rhythm of the movement of the camera, the rhythm of the movement of objects in a scene, the rhythm of light and shadow, the rhythm of music, the rhythm of editing, the rhythm of sound and bustle, and the rhythm of actors’ performances, and all this clearly takes place in cooperation with the work of the director.
The director is thus the conductor of a large artistic ensemble. Working with time, with camera shots, and with their rhythms on all levels, resulting in the final visual and sound composition, of necessity obliges the individual professions to work together. And each profession requires for its sovereign creative work not just the direction of the director, but also working conditions that include professional dignity and the right to a tolerant environment. Without Dignity, Tolerance, and Respect there will be no Creativity. Humiliation and inter-professional Intolerance do not increase creativity and motivation. On the contrary, they reduce them!
Creative motivation can be strengthened by large fees, which may include buying out the share in the copyright.
But this model will probably not work in the smaller European countries, where film producers do not have large budgets at their disposal, and so cannot afford this ”luxury” of buying out the licence. They therefore solve the problem in their own way. They do not recognise the cameramen’s joint copyright in the film or copyright in its visual component at all, and so do not pay the copyright licence. The current situation without any amendment to the European copyright law suits them perfectly.
But these facts are already known to everybody. The Association of Czech Cinematographers with the greatest responsibility proposes that IMAGO draws up a joint document, a ”White Paper”, which clearly states the united view of representatives of the cameramen’s profession that cameramen are JOINT CREATORS OF AND JOINT COPYRIGHT HOLDERS IN FILMS, and lays down a principled approach. Cameramen are creative colleagues on an equal footing with directors, scriptwriters, set designers and musical composers. All of them participate in a creative way in making a film – they must therefore have joint copyright in it. We reject on principle the view that just one person, whether the director or the producer, should own the copyright in a film. Usurping the copyright in a film in this way is completely unacceptable and does not correspond to reality. It is a unique quality of the art of a film that it is an art created by a collective of professions. If the director or producer wants the sole copyright, then they should do the writing, shooting, soundtrack and editing themselves.
We also propose that an IMAGO strategy should be drafted and drawn up as soon as possible for the process of amending the European copyright law, so that cameramen will be explicitly named as joint copyright owners of films, and their indisputable claims to financial remuneration for their creative and artistic work and its distribution will be expressly dealt with. Without such a just amendment of the European copyright law we cannot imagine that
this law will be relevant in other spheres that are today dealt with by the law.
Europe must not only be strong economically, but through its rich variety of national cultures it must become a world power in the moral and cultural spheres as well.
8.-(1) The copyright to a work which has been produced until the time of the completion of the work as a single work by the creative activity of two or more authors (work by joint authors) shall belong to all the joint authors jointly and inseparably. The establishment of a work by joint authors shall not be prejudiced if the creative contributions to the work by the individual joint authors can be distinguished, unless such contributions are capable of being used independently.
(2) A joint author shall not be a person who has contributed to the establishment of the work merely by providing assistance or advice of a technical, administrative or expert nature or by providing documentation or technical material, or who has merely given the impulse to the generation of the work.
(3) All the joint authors shall be jointly and inseparably authorised to perform, and liable for legal acts pertaining to their joint work.
(4) Joint authors shall decide unanimously about the disposal of their joint work.
Should an individual author obstruct, without serious reason, the disposal of the work of joint authors, the remaining joint authors may seek compensation for the absent manifestation of his will in court. Protection of copyright to the work of joint authors against threat or infringement may be sought also by an individual joint author independently.
(5) Unless agreed otherwise by the joint authors, the share of the individual joint authors in the joint proceeds from the disposal of copyright to the work of joint authors shall be determined in proportion to the size of their creative contributions; if it is not possible to distinguish these contributions, the shares in the joint proceeds shall be equal.
62.-(1) An audiovisual work shall mean a work created by the arrangement of works used audiovisually, adapted or unadapted, constituted of a number of recorded interlinked images evoking the impression of movement, accompanied by sound or mute, perceivable by sight and, if accompanied by sound, perceivable by hearing.
(2) A work may be adapted and included into an audiovisual work only with the author’s consent.
The Author of the Audiovisual Work
63.-(1) It shall be deemed that the author of the audiovisual work is the director of the work. This shall not prejudice the rights of authors of works used audiovisually.
(2) It shall be deemed that the statement concerning the audiovisual work and the rights to such work, including the rights relating to its utilization, recorded in the register of audiovisual works kept in compliance with the international convention is true, unless there is proof to the contrary; this shall not apply in cases when a statement cannot be valid according to this Act or when it is contradicted by another statement recorded in such register.
(3) Unless agreed otherwise, in the case when the author of the audiovisual work has granted the producer of the first fixation of the audiovisual work his written permission to fix the first fixation of the work, it shall mean that
a) he has also granted such producer the exclusive and unrestricted licence, with the exception of uses pursuant to Article 13, as far as making copies for the purpose of their distribution is concerned, Articles 14 and 18 paragraph (2), to use the audiovisual work in its original version as well as in the dubbed and subtitled versions, and also to use the photographs created in connection with the making of the primary fixation, including the option of granting authorisation which is part of such license in entirety or part to a third party, and that
b) together with such producer he has agreed on a remuneration in the amount habitual in the sense of the provision of Article 49, paragraph (2) a).
(4) The provisions of Article 54 shall not apply to the relation between the author of the audiovisual work and the producer of the first fixation of the audiovisual work, unless agreed otherwise; the provision of Article 58 paragraph (4) shall apply appropriately, and the provision of Article 58 paragraph (5) shall apply analogously.
Works Utilized Audiovisually
64.-(1) Where the author of a work utilized audiovisually, with the exception of a musical work, has granted the producer of the first fixation of the audiovisual work written permission to include the work into an audiovisual work, it shall mean that he has granted, unless agreed otherwise, such producer
a) authorisation to include the work without alteration or after adaptation or other alteration into an audiovisual work, and also to fix the first fixation of such audiovisual work, as well as to dub it and provide it with subtitles, and that
b) he has also extended to him the exclusive and unrestricted licence, with the exception of uses pursuant to Articles 13, as far as making copies for the purpose of their distribution is concerned, Articles 14 and 18 paragraph (2), to use the work during the utilisation of the audiovisual work, and also to use the photographs created in connection with the making of the primary fixation, including the option of granting authorisation which is part of such license in entirety or part to a third party, and that
c) they have agreed on a remuneration in the amount habitual in the sense of the provision of Article 49 paragraph (2) a).
(2) Unless stipulated otherwise, the author of the work utilised audiovisually pursuant to paragraph (1) may grant permission for the inclusion of such work into another audiovisual work, or include it into such a work himself after the passage of ten years from the granting of the permission pursuant to paragraph (1).
(3) The provision of Article 63 paragraph (4) shall apply analogously.
Marek Jicha, Association of Czech Cinematographers