Maharashtra National Law University, Aurangabad

Intellectual Property Laws Project

On

Critical analysis of the authorship of films: European

Commission proposals and effects

Submitted By:

SOUMIKI GHOSH

Roll No. 2018/BALLB/10

[B.A. LL.B (H). 4th Year, VIIth Semester]

In

October, 2021

Under The Guidance Of

Dr. Ashok Wadje, Ms. Sakshi Gupta, Ms. Aum Maheshwari

Faculty of Intellectual Property Laws

1
DECLARATION

I hereby declare that the work reported in the B.A.LL.B (Hons.) Sem VII Intellectual
Property Laws Project entitled ― “Critical analysis of the authorship of films: European
Commission proposals and effects” submitted at Maharashtra National Law University,
Aurangabad is an authentic record of my work carried out under the supervision of Dr. Ashok
Wadje sir, Ms. Sakshi Gupta ma’am & Ms. Aum Maheshwari ma’am. This work has not
been submitted for any other degree or diploma. I am solely responsible for the information
contained in my Project Report. This work has not previously been submitted to any other
university, and it is not copied from any book or website.

SOUMIKI GHOSH

2018/BALLB/10

Maharashtra National Law University, Aurangabad

2
INDEX

TOPICS PAGE NO.

Introduction 4
Significance of the study 5
Importance of the topic 5
Objectives of the study 5
Methodology 5
Scope and Limitations of the Study 5
Subject Matter 6-13
Bibliography 14

INTRODUCTION

3
The report by European Commission concerning authorship of cinematographic films which
declared that no harmonisation is required in the concerned area is a mere silent
administrative move across the globe. The European law governing cinematographic films
stands at the notch of conflict between the Common Law regime and the droit d’auteur
system of Civil law nations.

On one hand, there are a host of people, who are regarded as creators and having copyright
over a film, while the latter says producer is the single owner of the film. Although there
were steps taken to avoid any disparage to the economics of the domestic market by
designating the principal director as the usual author of the cinematographic work in the
Directive on Renting and Lending right, the measure explicated its inadequacy soon. Over
this, the question whether such recognition would entail hardships for exploitation of films in
the member states, was taken up by the European Commission in the report on authorship of
Cinematographic films.

SIGNIFICANCE OF THE STUDY

4
The study is helpful to understand the ins and outs of authorship of creative content like films
and the rights of people associated with a film. It appreciates the EC’s report and focuses on
how the changing time demands new aspects on authorship of films.

IMPORTANCE OF THE TOPIC

This is the era of content creating and digitalisation, so it is important and relevant in recent
times to know about the rights of a director and other technicians of a film. The EC’s report
analyses the same and it helps us to understand the authorship rights.

OBJECTIVE OF THE STUDY

This research project attempts to explain European Commission Report’s proposals and
effects regarding authorship of cinematographic films. The objective is to find out,
understand and elaborate the applicability of the laws. It also tries to understand the features,
objectives and shortfalls of the reports with focus on current scenario.

METHODOLOGY

The research is descriptive and qualitative. The techniques comprised of utilizing different
textbooks, journals, research papers, database and websites. Various books on IPR helped to
understand the topic. Secondary and Electronic resources have been used to gather
information and data.

SCOPE AND LIMITATIONS OF THE STUDY

The study is only based on the EC’s report so it doesn’t compare the laws on authorship of
other countries than EC’s members. The focus has also mainly been on films and not other
items like series or digital contents.

CULTURAL DIVERSITY & THE COMMISSION’S REPORT

5
The 2005 UNESCO Convention on Cultural Diversity, ratified at EU level in 2006 seeks to
promote and protect global cultural diversity through digital environment. Nowadays digital
media can allow for a wider dissemination of cultural and creative content, as the
reproduction is cheaper and quicker. Moreover, it also creates ample opportunities for authors
and content providers to reach new and larger band of audience. While formerly, the
individuals might have been excluded from sharing their opinion on issues, this new
pluralism enables them to actively take part in the deliberations which could ensue therein.
Thus, much emphasis is now being laid on promoting online cultural diversity and creative
content through digital cinema. It was expected that the Commission will enable the
digitisation process of the cinema to safeguard cultural diversity but it has not been
addressed.

GLOBAL PROSPECT: EUROPEAN FILM INDUSTRY

The suggestions made by the Commission reflect on the law of the land as prevalent in the
member states concerning the partial harmonisation of the notion of authorship of
cinematographic works. It is with such a pretext that terms such as ‘authorship’ and
‘cinematographic or audio visual work’ have been construed in a broader sense to include
issues concerning original and derivative ownership of rights as well as all types of film
works and moving images. However, at this juncture, the Commission has refrained from
entering into the conceptual differences between the natures of copyright law as it stands in
both – the Common Law nations and the Civil Law Countries.

In addition to this, the report highlighted the Commission’s opinion of considering the partial
harmonisation along with the Directive together with its domestic implementation as having
been successful. In these regards, no urgent need has been expressed to be felt, for further
work on the issue of film copyright in the Community. The report concludes on the note that
there is no evidence that vesting original authorship in the principal director of a film would
have caused difficulties in the exploitation or distribution of films, or in the effective tackling
of piracy and other unauthorised use of such works.1

Even though the report maintains that hurdles which may come up the surface due to the
varying rules governing different member states, can be cured either by contractual
arrangements concerning the transfer of exploitation rights or by respective legislations,
1
Conclusions of Report from the Commission to the Council, the European Parliament and the Economic and
Social Committee, on the question of authorship of cinematographic film and/or audiovisual works in the
Community of 6 December 2002, COM (2002) 691 FINAL REPORT.

6
providing for vesting of these rights in the producer of the film. But sufficient scope is left in
the same regards, by announcing that national contract law in the area of film copyright
would be subject to future examination. Moreover, the scepticism imbued in the conclusion
extends to the fact that all such disparities between the legal regimes of the member nations
would be overcome in reality through contractual arrangements; which are to serve as the
most appropriate instruments for exploitation in the domestic market.

The competing interests in film production and exploitation of the entailing rights-

The producer of a film gains the maximum benefit by unrestricted exploitation of the bundle
of economic rights vested in him in the capacity of the owner of copyrights subsisting in the
cinematographic work. This is seen as his reward for his ability to undertake the risk of
providing financial sufficiency in making the film a success. Such economic returns along
with the moral rights which come complementary to the copyright – also, stand in the interest
of other players and copyright owners who have contributed in the development of the film.
The latter’s interest to share in the proceeds of the film’s exploitation is closely integrated
with the fate of the interests of producers in a successful production and exploitation.
Contrary to this, all such economic prospects from exploitation of the copyrighted work
would cease if a legal bar hinders the production of the film. But, the situation gets
complicated in cases of the special contributions of a nature which are intended to be a part of
a particular film only temporarily and thus exist as independent copyrighted work of different
authors. In such a context, the balance of interests is clear – it must be the film producer who
is required to have absolute autonomy over the licences which are necessary for making of
the film as well as for the subsequent exploitation of the copyright subsisting in the work.
However, laws of many member states including Germany, fails to address this situation.

The Commission’s report clearly brings forth this concern by stating –

“The practical need to place the rights concerned in the hands of the producer and yet to
respect the basic principles of author’s rights protection ... In this regard, a balance has to be
struck between rights and interests of the natural persons who contributed to the intellectual
creation of the film on the one side and the need to ensure the optimal exploitation of
cinematographic or audio visual works on the other”.

7
To this, it must be stated that however easy it may seem in the statement, it becomes
cumbersome to reconcile between the interests of both – the individual authors and the
producers – which, may be treated to be largely overlapping or at odds with each other.

International Film Industry and the Conflict of Laws-

The scenario in the field of authorship and control of copyrights vesting in the
cinematographic films appears even more uncertain once the producer becomes active at the
international level and cross the national borders of his production location. This results
primarily due to the inconsistencies across the legal systems of the member nations who have
resorted to diverse propositions within the law of copyright protection. Here, it becomes
crucial to record the distinction between ‘applicable copyright law’ and the ‘applicable
copyright contract law’. This bears a reference to the fact that in case of a copyright
infringement, the law of the country offering protection to the films would be treated as the
‘applicable copyright law’.

However, for the instances involving breach of contract, the ‘applicable contract law’ is to be
identified – which for the member countries of EU, is the provision embedded in Art 3 of the
Rome Convention. Thus, the major determinant in this field stands to be, how the respective
law of the country of protection addresses the issue of authorship in films. In the same
regards, it is to be taken care of that there is no agreement whatsoever, in relation to the
quintessential question of transfer of rights i.e., the law applicable to the disposal of
copyright. It is also true that a restricted approach of the member nations in their efforts to
systemise and ascertain the constants in the field of copyright protection, are not potent
enough given the legal uncertainty. To this, the German experiment to enact Sec. 32 (b)
UrhG, stands as the best possible illustration. More evidently, if a Spanish screenwriter is
considered as the author of the film natively, the same implication does not rest in the legal
systems where English Law is applicable.

AUTHORSHIP OF CINEMATOGRAPHIC FILMS & FILM RIGHTS

The differences in the prevalent legal practices with respect to authorship of

Cinematographic films-

As we move down to the band of people who are entitled to copyright under the Continental
Law concept of droit d’auteur, there exists only a thin line of distinction. A musing upon the

8
idea also leads us to ponder upon the fact as to how the licence is passed off from the authors
of the independent works to the producers of films.

However, at this juncture, a delineation of the approach adopted in droit d’aut eur with that of
the Common law system, must be distinguished as the latter regards the producer as the sole
author of the film. However, the nuances for the former system may be understood by
allowing a classification into two broad groups:

a. The first group comprises of precisely the individual film authors. Such enumerations are
found in the legislations from Spain2 and Italy3 as well as Greece. However, French and
Belgian law do not provide exhaustive lists, having presumptions as to typical film authors.

b. The second group of Germany, Austria4, the Netherlands and Denmark neither specifies
the creator of a cinematographic work has copyright nor do they offer a presumption that
certain individuals could be considered authors. Instead, they examine the creative quality of
each individual contribution.

It must be noted that the director of a film counts as undisputed in the circle of direct film
authors under all of these copyright regimes, even before the partial harmonisation of film
copyright in Europe.

There are some disparities with reference to the question whether the screenwriters entitled to
co-authorship in the film over and above their role as a creator of the screenplay. This issue
has created controversy across member nations as a screenwriter is presumed to be the author
of his contribution which has been subjected to exploitation for the purposes of making the
film. Thus, some scholars do not accord him the status of direct authors of the film. However,
the former opinion may get support by the ‘doctrine of dual character’, which considers
works created for film, such as screenplay, treatment or synopses, as well as film music as a
component of the cinematographic work and thus their creators are co-authors of the film.

Deliberations of such a sort would not find much acceptance in states that acknowledge the
screenwriter as a film’s author directly. To this, certain illustrations are there–

2
Spanish Intellectual Property Law, Art. 5.
3
Italian Copyright Law, Art. 45(1).
4
The Austrian copyright law, Sec. 38(1) (f).

9
i. Under French and Belgian copyright law, the screenwriter belongs like the composer of
music specifically created for film to the group of individuals who bear an entitlement to the
rights of authorship in a cinematographic work.

ii. Similarly, the Spanish and Italian copyright 5 regimes assign authorship rights in a
cinematographic work to an exhaustive list of individuals which include the authors of
literary materials (i.e. the scripts, their revision, the screenplay and dialogue) and music made
especially for the film as well as the director. The same holds true for Portuguese law.6

However, when it comes to ground-level implementation of such principles, the screenwriters

rarely have their rights and most of the times find it better to quit from the race.

The Distinction in the rules relating to the Acquisition of Film Rights-

Some possible modes of consolidating the rights needed for making cinematographic films in
the hands of film producers are as follows.

(a) Firstly, the authorship rights in a cinematographic film under the Common law can vest
primarily, with the producer of the film.

(b) Alternatively, such rights can also be assigned to the producers by statutes or,

(c) Thirdly, by contractual arrangements based on presumptions.

In Italy, an individual who organised the production of the cinematographic work is entitled
to the right entailed within the film. In addition to this, the law in Italy states that the
enjoyment of commercial exploitation rights to which the producer is entitled is the purpose
for the exploitation of the produced work. Austrian copyright law 7 states that the owner of the
enterprise (the film producer) is entitled to exploitation rights for commercially produced
cinematographic works. The hurdles which come in the path of acquisition of rights by the
film producers are catered to by the statutory assignment of legal rights. On the other hand,
the issue of contractual grant of rights required for film production and exploitation
implicates back to adequate uncertainty for each one who gets involved in making of a
cinematographic film.

5
Supra note 3.
6
Portuguese Copyright Law, Art. 22.
7
Supra note 4.

10
PARTIAL HARMONISATION & THE DISTINCTION BETWEEN LEGAL
SYSTEMS

The systems prevailing amongst the member nations for protection of copyright vesting in
cinematographic works can be sketched into nations following the droit d’auteur concept and
those oriented around the copyright tradition. Art. 14 of the Berne Convention 8 prescribe for
the determination of authorship in a film entirely in accordance with the national legislation
of the Union where protection is claimed.

However, the proposition amongst the continental countries emphasise that the author of an
original work enjoys an exclusive and absolute immaterial property right with respect to this
work on the mere basis of his creation. In other words, they are bent towards a position where
they believe that the original right in intellectual property accrues by virtue of the creation of
the work as a special expression of intellectual effort.

This is premised on the condition that any work capable of being copyrighted, can only come
about as the result of creative, human intellectual activity. However, a notion converse to this
prevails in common law where the copyright doesn’t point towards the right to exploit an
original work to its creator; rather it aims at the person who is either the employer or superior
to the creator.

Two systems intersect when the principal director’s authorship of a film is acknowledged. In
addition to the directive on rental and lending rights, it is also the directive on satellite
broadcasting and cable retransmission; which provides for the recognition of authorship of
the principal director. Instead, the legislators went to an extent whereby they did not restrict
the director of the film to be recognised as author for the purposes of the directive.

Complementing to this, it has to be taken into due consideration that calculation of the period
of protection of the cinematographic work is not only made centred to the principal director,
but also to the screenwriter, dialogue writer, and composer of music specifically created for
use in the cinematographic work. Thus the nations where such a principle has been adapted in
the national law (as in, Britain, Ireland & Luxembourg), the principal director enjoy a
personalised bundle of rights. Partial harmonisation of authorship of films is also visible in
the field of Lending and rental rights, where it has brought about recognition of film directors
as co-authors of a film. This was desired by British and Irish film directors as the directors

8
Berne Convention for the Protection of Literary and Artistic Works

11
had been denied any protection before. The European Commission in its proposal for the EC
rental directive renounced harmonising film authorship in the framework of this directive
which is limited to the lending and rental rights only. However, it was harmonising a
horizontal issue in respect of selected rights which was not considered appropriate. Therefore
the film producers and film directors are now recognised as co-authors under British Law – a
concept which seems contradictory in its own self.

NEED FOR HARMONISATION

There is a vast chasm separating the legal regimes prevailing in various member nations
which govern the arena of copyright protection in films which also includes assignment of
rights by a producer. Although the inclusion of a screenwriter in the group of direct film
authors has been welcomed in the German film Copyright Law, the ambiguity claims of other
agencies involved– such as Cameraman, the sound engineer and the composer of film music;
remains. This serves as an undesired element for the Copyright regulations as such
uncertainties are potent enough to be detrimental for the functioning of the domestic market
which aspires to deal with the exploitation of cinematographic works. As an illustration, it
was the ‘Home field advantage’ under the English Law which, before the partial
harmonisation, recognised producers as the only authors. On one hand this provides a
simplified dimension to the entire process of exploitation of the rights associated with the
copyright, but on the other, it blatantly flouts the mandatory co-authorship of the principal
director. As opposed to the conclusions stated in the report, such repercussions wouldn’t be
eliminated by way of contractual arrangements in the droit d’auteur jurisdictions. Rather, it is
the distinction between the member States whose copyright law offers a clear solution either
through a statutory assignment or at least an enumerative listing of film authors together with
the presumption of assignment and the member nations where the law is still not settled to the
matter stated. However, this would have a negligible impact on a nation where the
exploitation of cinematographic work gets hampered due to regulatory mechanisms. In this
regards, Germany may stand to be an illustration to this effect where, the granting of a license
for an unknown method of exploitation is void. All of this contributes to substantial legal
uncertainty, which should be ruled off in the context of EC law. Moreover, the effect on the
Internal Market remains to be reviewed of the fact that in one Member State high costs must
be laid out for legal research and compensation of the most varied film authors, whereas in
another Member State a simpler and more secure transfer of rights is possible in a
straightforward manner. As a result, it is not understandable why there should be a need for

12
harmonisation just in the area of rental and lending rights, satellite broadcasting and cable
retransmission and the period of protection, but no need for a general harmonisation of film
copyright as a whole.

CONCLUSION & RECOMMENDATIONS

Although the varied nature of the rules of various member nations governing the authorship
of cinematographic films is appreciable, the Commission’s report clearly failed to make use
of an opportunity to instigate harmonisation. Moreover, the report makes an error in gauging
the consequences of such a dissonance on the internal functioning of the audio visual market
in Europe. The hopes of the Commission at the contract practice in the member countries
seem to shatter down as these are not potent enough inter se, to reconcile and compensate for
the dissonance amongst the legal regimes across Europe. Therefore, the report seems to have
exposited its inadequacy to provide security to the fear of some production houses which are
unable to catch international attention due to their disadvantaged location. In these regards,
the report seems to have adopted a docile diplomatic stand and has chosen to ignore the
balancing of this parlance with a general presumption of authorship in favour of the principal
director, the screenwriter, dialogue writer, as well as the composer of music exclusively noted
for the film.

It seems advisable to suggest complementing the idea of harmonisation of authorship of

cinematographic films by introducing adequate legislative instruments in place. This step has
proven to be one of the most efficacious and feasible solutions for many member countries
across Europe and even serves to be in the best interest of the parties involved in making of
the film. One of the benefits of such a resort is that they not only integrate the rights of
exploitation of the copyrighted work with the producer but also aim at providing the much
required legal certainty in the film market by unification of legal relationships for common
exploitation. This attends best to remedy out the nuances which arise due to conflict of laws
and helps accentuate the process of harmonisation of the legal regimes across the member
nations so that greater protection is available to the creators of content thereby facilitating
wide-spread dissemination of copyrighted information; which is the primary goal of the
concept of copyright protection.

13
BIBLIOGRAPHY

 James S. Fawcett, Intellectual Properties and Private International Law 2nd Ed., 2011,
Oxford University Press, New York
 Copyright in a Global Information Economy 3rd Ed., Julie E. Cohen Et. Al. Eds.,
2010, Wolters Kluwer International, New York

14