April 5, 2022 rcplegal 0 Comments

Copyright is the economic backbone of the creative industry, stimulating innovation, creative activity, investment and production. Thus, copyright is an important means of ensuring that creative sector activities are rewarded.

The regulations adopted at Union level in the field of copyright and related rights are intended to provide a high degree of protection for copyright and related rights holders by establishing a legal framework within which the exploitation of copyright-protected content can take place.

Rapid technological developments continue to transform the way works and other protected subject matter are created, produced, distributed and exploited. New business models and new players continue to emerge. It is becoming necessary to design the relevant legislation in such a way as to enable its application in the future, so as not to limit continuing technological developments.

In this respect, a series of 24 proposals have been proposed to amend and supplement Law No 8/1996 on copyright and related rights, republished.

An important aspect of the amendments is proposal 11, which implies that the author/artist/performer has the right to revoke the license or transfer of rights in whole or in part in case of non-exploitation of the work or other protected subject matter.

  1. Two new articles, Articles 481 and 482, are inserted after Article 48 as follows:

”Art. 481
(1) Where an author or performer has granted an exclusive licence or has exclusively transferred his rights in respect of a work or other protected subject matter, the author or performer shall have the right to revoke the licence or transfer of rights in whole or in part in the event of non-exploitation of that work or other protected subject matter.
(2) The mechanism of revocation provided for in paragraph 1 shall be the following (1) shall apply, taking into account the following:
(a) the particularities of the music, audiovisual and publishing sectors and the different categories of works and performances;
(b) the importance of individual contributions and the legitimate interests of all authors and performers affected by the application of the revocation mechanism by an individual author or performer.
(3) Authors or performers may choose to cancel the exclusivity of the contract instead of revoking the licence or transfer of rights under paragraph (2). (1).
(4) The revocation referred to in paragraph 1 shall be effected by the licensee. (1) may not be requested before the expiry of three years from the date of conclusion of the exploitation contract. In the case of works in daily publications, this period shall be three months and in the case of periodical publications, one year.
(5) For the purposes of applying the provisions of paragraph (4), the author or performer shall notify the person to whom the rights have been licensed or transferred and set an appropriate time limit for the exploitation of the licensed or transferred rights.

(6) After the expiry of the period fixed under paragraph (5), the author or performer may choose to terminate the exclusive nature of the contract in accordance with paragraph (5). (3).
(7) The provisions of para. (1) shall not apply where the non-exploitation of rights is mainly caused by circumstances which the author or performer can remedy.
(8) Contractual terms derogating from the revocation mechanism provided for in paragraph 1 shall be subject to the following provisions (1) shall be permitted only under collective employment contracts.
(9) The provisions of paragraph 1 shall not apply to collective agreements. (1) shall not apply in the case of works or other subject-matter protected if such works normally contain contributions by more than 10 authors or performers.

Previously, the Law provided for similar provisions but only with regard to the copyright assignment contract, the assignment representing an assignment of the right to exploit the work, the holder retaining only the moral rights of the author. This time, the legislator intended to introduce the same rights for the author of the work in the case of an exclusive licence.

Given that the proposed amendments define new terms that take into account the online environment, the transmission and retransmission of works of art and other objects, the following questions arise:

How do these legislative changes affect the business environment and what needs to be considered in projects involving photo shoots, outsourced video production and advertising production?
Parties should also take into account the new hypothesis of withdrawal of the licence for non-exploitation of the work, considering that, since the creation, the author’s aim is to make his work known.
However, looking at most assignment and licensing contracts on the use of photographic artworks or creations in the field of advertising, they have the character of a work for hire whereby the author executes a work for the benefit and at the initiative of the client.
In this case, the right to revoke the assignment or licence is quite relative, if the client for whom the work was created, based on a commercial need, decides in the meantime that the work is no longer useful or decides to go for another idea, concept in his business.
The author, even if he were to send a notice of revocation, has no material possibility of concluding another contract with another client for photo/video material for example already executed.
Of course there are exceptions to this.
The applicability and usefulness of this new clause is, however, extremely important in the music industry, where the author creates works that he or she wishes to make known to the public as a simple act of creation.

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