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Artists frustrated by Germany’s efforts to boost their intellectual property rights

How can artists be fairly paid for their work? Germany's copyright reform was supposed to make life easier for artists, writers and other creatives, but critics say it doesn't go far enough.

How can artists be fairly paid for their work? Germany’s copyright reform was supposed to make life easier for artists, writers and other creatives, but critics say it doesn’t go far enough.
Artists should be able to make a living from their work: That was the aim of the copyright law reform. On Wednesday (16.03.2016), the German cabinet agreed on a draft legislation impacting the intellectual property rights of authors, filmmakers, designers and composers in their contracts with publishing houses, broadcasters, film studios and the like.

The bill – a reform of a law which was last altered in 2002 – was drafted by Justice Minister Heiko Maas from the Social Democratic Party, who called the result “beneficial.”

However, not everyone is pleased. “Initiative Urheberrecht,” an association representing 35 creative unions and some 140,000 copyright holders, said that the latest version of the reform “gave copyright holders stones instead of bread,” saying the government had not lived up to its promises.

Screenplay writer and producer Fred Breinersdorfer criticized that it was the “small print in the draft” that restricts artists’ right to fair payment.

Artists can switch publishers after 10 years

One of the main sticking points of the reform was a clausal providing for recall rights of artists. While an author, for example, typically sells the rights to their book to a publisher for good, the clause would allow the author to retract his or her book after a certain period of time and sell it to the next highest bidder.

Maas had initially proposed a five-year waiting period, but due to criticism from publishers, the compromise agreed Wednesday allows for a 10-year period.

While recall rights allow creatives to benefit when their own market value rises, it means that smaller publishing houses could regularly lose their top authors to giants like Amazon, which may be more financially equipped to outbid on a proven bestseller.

The recall right becomes even more complicated on stage, where plays or new pieces of music may well be performed over 10 years after their initial commission.

According to the draft, artists are now in a position to sell extensions to rights over their intellectual property, thereby giving up their recall right.

Digitalization makes buy-all deals unfeasible

Total buy-out clauses, in which publishers purchase sweepingly comprehensive rights to a work – even in forms that may not have even been invented yet -, were also a point of contention.

In the digital age, such clauses are not uncommon, but were something the original draft aimed to forbid in order to ensure that artists are paid for every use of their work.

In the final form of the law, however, total buy-out clauses were not explicitly banned, as that would infringe on contract law, but were left purposely vague – to the dismay of creatives who had hoped that artists would be ensured payment for every single use of their work.

Since the ambiguity could lead to conflict between artist and publisher, the draft has strengethened the rights of unions when it comes to court battles. “The individual artists are no longer on their own when it comes to making sure their right to fair payment is observed,” according to Maas.

Germany’s two national associations of newspaper and magazine publishers welcomed the relaxed approach to buy-out clauses, but criticized that the “problematic unions’ right to sue” had been upheld.

The draft was passed by the government cabinet on Wednesday, but still needs to be formally approved by the parliament, the Bundestag.

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