THE DIRECTOR OF PHOTOGRAPHY AND HIS CREATIVE CONTRIBUTION IN SPANISH LAW

(Assessment of the current legal protection. Proposals for lege ferenda regarding the recognition of protection of Directors of Photography by Spanish Intellectual Property Law)

By CRISTINA BUSCH
Doctor of Law
Professor of University Abat Oliba CEU Barcelona

I.- Introduction

Lately, with the Torún Declaration published in 1999 during the Camerimage Film Festival in Poland, the question about intellectual property rights of the Director of Photography (hereinafter DP) has become a very disputed issue. As often happened in the field of Intellectual Property Law, the new technological advances made it necessary to reconsider the rights of the DP, because new profit exploitation of films was possible and the creative artists wanted to take part in the distribution of profits. Here I only stress the video and digital exploitation of films, the coloration of black and white films, the effective introduction of remuneration rights for private copy, etc.

At the same time technology brought new means and formats, which “..opened a totally different world to new forms of artistic expression which will be comparable to the Nouvelle Vogue of the 60’s”.. The cinematographer will claim his share of this new artform” (COSTA).

The claims of the DPs for appropriate recognition and retribution of their creative work depend on the protection provided by Intellectual Property Law to the DP. This is why we have to investigate the current legal protection of the creative contribution of the DP, seeking solutions.

Before starting, we should stress the special characteristics of the film (cinematographic or audiovisual work): Firstly, the film is a “mixtum compositum” (POLL) of creative and non creative works of a various of people, who all together contribute to making the film as it finally is. Legally we speak about “work in collaboration” when the collaboration of various authors has an unitary result. Due to art. 7 T.R. LPI the rights belong to all co-authors, while in a “collective work” as set out in art. 8 T.R. LPI, rights belong to only one person, which can even be a legal person. Secondly, films are currently not created by a sudden creative impulse of the author. Unlike a publisher (for example), the producer normally does not exploit a finished work which has been offered to him. The creation of a film is normally the result of a concentration of different immaterial (creative) and material (economic) forces which leads to a new creation, which has the double character of “intellectual production” and “capital expenditure”. This second characteristic influences the third: During the process of filming intellectual property rights “originate”. But only once having finished definitively the film, can it be cleared up who actually has “obtained” intellectual property rights regarding this product (POLL).

It is important to realise that Spanish Intellectual Property Law is based on the principles of “creation” or “creativity” (“Schöpferprinzip”) and the “casuistic method” (“Fall-Methodik”), will say that the creator of a work is always its author, but every creative contribution has to be examined “case by case” if it fits the requisites of “original work”, because authorship can only exist in relation with an original work. The Spanish law does not recognise the utilitarian “categorical method” (“Kategorien-Methodik”), will say it does not automatically acknowledge the condition as author of a creative work because of his or her membership of a special (creative) profession.

II.- The DP as Co-author of the Film

1. The Requisite of Original Work

Conditio sine qua non of the authorship of the DP is the character of “original work” of the film itself. Art. 10.1. d) T.R. LPI names expressly the “cinematograhic works and any other audiovisual works” as works protected. The definition of works itself is set forth in art. 10.1 T.R. LPI: “original literary, artistic o scientific creations expressed in any manner or medium ...”. Spanish Courts and Experts have derived three basic requirements for copyright protection: creative intellectual production, originality and perceptibility.

The criterion of originality might be interpreted in an objective or a subjective sense, which means the work has to be either novel or an expression of the personality of the author.

Currently, every film directed will be considered as “work” by the Intellectual Property Law, because of the personal creative work of the director, cinematographic architects, DP, etc. which all together make something “new”, different to existing film productions. This includes, cinematographic films, television films, publicity films and even documentary and cultural films. It will be nearly impossible to deny the category of “original work” to every produced film, because as it is well known, Spanish Courts require a minimum standard for copyright protection.

2. Authorship of the Film

a) The Creative Contribution of the DP and its Valuation as Co-Authorship of the Film

After verifying the character of the film as “work”, we will have to see if the DP’s work in the film can be qualified as co-authorship. The DP can only be considered Co-author, if his or her contribution is more than a mere skill, technical contribution, subordinated completely to the instructions of the director.

The creative contribution, duties and responsibilities of the DP has been described perfectly by VACANO and earlier in Germany by two expert reports written by PRÜMM and HERTIN. In short we can say that the DP has great influence in all the important creative elements of the film. Specially the visual design and the lighting design corresponds almost only to him. As the lighting design is a very elemental part of the film, because it gives to every individual image its special atmosphere, and influences the sensation of the whole film, it is the DP who imprints his or her mark of personality to the film.

The fact that the DP has to co-ordinate his or her work with the Director and that currently it is the Director and/or the Producer who has the “last word” can not be interpreted as “lack” of personal creativity, considering the work of the DP a simple subordinated technical assistant to the Director. The DP is the most important partner of the Director. He must trust him, because through the work of the DP the Director succeeds in “making visible” what has been only insinuated by the other media such as writing (script) and speaking (explanations of the Director). The responsibility of the DP is much more complete than of any other creative person involved in the project of filming, besides the Director: he or she not only has to make technical perfect images, but also to meet the aesthetic and artistic vision of the film which the DP is elaborating together with the Director.

Neither the importance of the creative duties nor the responsibilities of the DP can be disputed by the fact that new video equipment has made his or her work (apparently) easier: “Technique by itself can not create anything” (VACANO), or quoting ALMENDROS “the main qualities a director of photography needs are plastic sensitivity and a solid cultural background. So-called cinematographic technique is only of a secondary importance, and depends above all on one’s assistants ...”

In short, being the visual and lighting design mostly the sole responsibility of the DP and collaborating closely together with the Director regarding all the other aspect of filming, the creative contribution of the DP has to be assessed as co-authorship of the film.

b) Additional Evidence of (Co-) Authorship of the DP

A further confirmation that the DP has to be considered co-author is the fact that he or she is normally named in the film credits, in Spain, as “Director of Photography”. The word “Director” just implies the recognition of the directorial role of the one in charge of the camera.

The creative merits of the DP are awarded as the work of the Director himself. For example the Spanish National Award for Cinematography or the Goya Award for the best photography. Quoting VACANO: “... if cinematography was actually the task of the Director, as is sometimes claimed, then it would be completely illogical for DP’s to be regularly presented with awards for this task. To date, however, no Director or producer has ever objected to the practice......”

Further evidence of the general or extended consideration of the DP as co-author of the film is the fact that the producer normally while contracting the work of the DP requires the transmission of all economic rights, expressly assigned in an individual manner. If the producers did not recognise the work of DP as co-authorship they would not feel the need to impose such extensive and wide transmission of rights.

c) The Legal Regulation of Art. 87 T.R. LPI and the Unjustified Exclusion of the DP

As we just mentioned in the introduction of this report, the film constitutes a “work in collaboration” of creative and not creative works of various people and reference is made in art. 87 T.R. LPI where the legislator decided who has to be considered co-author of the film: “The following shall be the authors of the audiovisual work within the meaning of Article 7 of this law. “The director or maker, 2. the authors of the script and the adaptation, and those of the scenario or dialogue; 3. the authors of the musical compositions, with or without words, that are created specially for the work.”

Spanish Experts (GONZALEZ GOZALO, MAYOR DE HOYO, PEREZ DE CASTRO) interpret the enumeration as a “numerus clausus.” The strongest argument for this interpretation is the derogated Art. 3 of Law 17/1966, of 31st May, predecessor of the current regulation, which appointed the same professionals as authors, but annexed a second paragraph “.. other natural persons can also enjoy the same rights if they have collaborated en the realisation of the project by an activity of intellectual creation.” Having eliminated this paragraph of “numerus apertus” during the reform of Spanish Copyright law in 1987, maintaining the first paragraph nearly identically, we have to consider the current regulation as “numerus clausus.”

The regulation supposes an infringement of the principle of creativity, basic principle of Spanish Copyright law, because it excludes without justification creative contribution of other individuals from the (co-) authorship of the film. The argument used by those who are in favour of that regulation is the major legal certainty. As we will see in the last part of this report, legal certainty can also be achieved by other regulations which preserve the principle of creativity.

But not only the decision of the Spanish legislator to limit the circle of possible authors of the film is open to criticism, but also the concrete selections of professions. There is no doubt about considering the Director as an author of the film. “A key task of the Director includes checking, approving and deciding between various creative ideas and proposals and, in the final analysis, determining what is included in the film and what not” (VACANO). For example, it is he, together with the producer, according to art. 92.1 T.R. LPI who decide about the definitive finalising of the filming. Because of this pre-eminent position the Director has to be considered (co-)author.

Regarding the protection of the authors of the script, the adaptation and those of the scenario or dialogue, which all constitute literary works which finally form an integrated part of the film, Spanish Experts (PEREZ DE CASTRO) and Spanish Courts (STS 29 June 1995) have great difficulties in delimiting the different creative contributions. It seems as if the Spanish legislator, not being able to decide whose creative contribution of these literary authors is the more relevant, ordered a legal presumption of authorship to all of them. Italy, which has a similar regulation of authorship, for example, excludes the author of the script and of the adaptation (Art. 44).

As art. 87 T.R. of the LPI is considered a “numerus clausus” and having omitted a special reference to the DP, we should ask if the DP could be considered an “adapter”, in the sense that he or she “adapts” by visual and lighting design the literal works, as script, etc. and the explanations of the Director. Even if some Spanish Experts (PEREZ DE CASTRO) defend a “open” interpretation of the terms of art. 87 T.R. LPI the assumption of the DP under the term “adapter” has to be vetted as an interpretation against the formal meaning of the word, limited to the adaptation of literal works and that is why it is mentioned in art. 87 T.R. LPI together with the authors of the script, dialogue and scene.

It is not understandable at all and thus signifies a very important loophole in protection, that the legislator has failed to include the DP in the presumption of co-authorship of the film. If the Director is the “last one” responsible for the lighting design, but, as we just have seen, does not do this creative work personally, and at the same time, the lighting design determines the elemental impact of the whole film, the legislator must include the DP as co-author in the art. 87 T.R. LPI. This implies an infringement of the principle of equality before the law, when some kind of authors, as the author of literary works mentioned in art. 87.2 T.R. LPI, receives preferential treatment, as their wide protection is unjustified. We insist, the most important partner in the process of filmproduction of the Director is the DP.

d) The International and European Prejudice regarding the Regulation of (Co-)Authorship of the DP

The present report does not allow enough space to intensify this question. Thus the following is a short summary:

Art. 14bis second paragraph a) of the Berne Convention for the Protection of Literary and Artistic Works, (Paris Act of July 24, 1971) consider the regulation of ownership of copyright in a cinematographic work as “a matter for legislation in country where protection is claimed”.

The Council Directive 92/100/EEC on rental right and lending right and on certain rights related to copyright in the field of intellectual property states in art. 2 second paragraph:” For the purpose of this Directive the director of a cinematographic or audiovisual work is considered author o as one of the authors. The member states are free to assign (co-) authorship to other persons.”

The same provision can be found in the later Directives, such as the Council Directive 93/83/EEC on the co-ordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (art. 1, 5th paragraph) and the Council Directive 93/98/EEC harmonising the term of protection of copyright and certain related rights. Resuming we can see, that the Spanish legislator is free to assign co-authorship to the DP.

III.- The (Subsidiary) Protection of the DP as Author of Photographic Works or Producer of simple photographs

1. The Creation of Individual Photographic Works during the filming

According to the definition of art. 87 TR LPI, a film is made by “means of a series of associated images...” At the same time, art. 10.II.h) T.R. LPI consider “photographic works and works expressed by a process analogous to photography” as subject matter of intellectual property.

We should now investigate if the DP during the shooting is creating individual photographic works. As mentioned above, the lighting and visual design of the film is responsibility of the DP. So during the process of filming, he will decide the focus or fragment of the image, the lighting, etc., creating with his personal style individual photographic works, which achieve the level of originality required by the law.

It is commonly accepted by Spanish Experts and Courts that a part of an original work can be protected as individual original work when it fits in with the standard of originality. After the Directive 2001/84/EC on the resale right for the benefit of the author of an original work of art, it has been cleared by the European legislator that the level of originality by photographs is minimum, it is sufficient that they are “creations issued by the artist himself” (art. 2 first paragraph).

So there is no reason to deny legal protection to the DP as the author of individual photographic works, even if this works form part of the film itself. The recognition of individual rights regarding the single images in a film is not new in the Europe.

In Germany in 1965, the legislator made express reference to this question. According to the premise, that from a technical point of view, a film is built by different individual images, he inserted an explicit regulation in the copyright law, the now derrogated paragraph 91 UrhG, which regulated (by a cessio-legis regulation or an originate ownership of rights -the German Experts discussed the nature of this legal precept) that the rights of the “images” which are generated during the film production correspond to the film producer and not to the one who made the images. The current regulation, the new paragraph 89 UrhG, makes it even clearer, because specifies in its forth paragraph that the presumption of assignment to the filmproducer includes the rights “regarding the simple photographs and individual photographic works which are created during the process of filmproduction”.

Opponents could argue that the DP is creating a variety of identical photographic works, and that is why the consideration as “individual works” does not fit in with the legal system. Of course, the DP will make a variety of identical photographic works during the shooting, or similar photographic works, if the focus is the same, but compared with fine arts and painting this argument can not be convincing: every copy of a sculpture, every lithographic series and every individual but similar work of painting of a series of an plastic artist enjoy individual legal protection (SCHULZE).

Spanish Experts (GONZALEZ GONZALO, PEREZ DE CASTRO) require for individual legal protection of the work of a person who contributed to a film production but who has been excluded as co-author of the film by the drafting of art. 87 T.R. LPI, not only the sufficient level of originality of his or her work, but also the possibility of separate exploitation. Although the aforementioned Experts do not refer to the work of a DP, we understand that there is no problem to exploit the individual photographic works created by the DP in a separate way, like other photographic works.

In short, the DP can be considered author of individual photographic works which form part of the film itself. Even if his creative contribution should not meet the level of originality, he or she could enjoy protection by the art. 128 T.R. LPI who recognises related rights to “simple” photographs (“mera fotografía”).

Nevertheless we have to admit that the photographic work of the DP is different from “normal” photographic work, because of its character of associated images. But, we insist, the association of many photographs needs individual images. Because of the work of DP, these individual images are not made by pure coincidence, they are result of the visual and lighting design work of DP and should deemed to have character as individual original work.

2. The Rights of DP as Author of Individual Photographic Works and as Producer of Simple Photographs

If we consider the DP, besides his condition as Co-author of the film, also author of individual photographic works which are part of the film but separately exploitable, the DP has the full and exclusive ownership of economic and moral rights, included the remuneration rights.

As economic rights (exploitations rights), the author has the exclusive rights to exploit his work by reproduction, distribution public communication and even transformation (art. 17 and following. T.R LPI), As moral rights, DP has, as the most important, the “irrevocable and inalienable rights” to “demand recognition of his authorship of the work” (art. 14.3 T.R. LPI) and “the right to demand respect for the integrity of the work” (art. 14.3. T.R. LPI).

According to his or her position as a “normal” author, the DP could ban, for example, the colouring of the black-and white film, etc. (SCHULZE). At the same time, he or she could require to be mentioned as author of the photographic works. We insist, until now this question has not be submitted to Spanish Courts and even Spanish Experts, as we know, has not yet treated this problem.

As author of Individual Photographic Works the DP could also, on the condition, that he or she is accepted as member of a Collecting Rights Society, claim the revenue from video rentals, cable and satellite broadcasting and the blank tape levy as well. The opposing argument (LÖWENHEIM) against the participation in these revenues, that the individual photographic works are not transmitted or reproduced, but only the whole film itself, is not convincing at all. Indeed, the whole film is transmitted, but the whole film is, as mentioned above, built by “a series of associated images”, which are exploited by the transmission or the reproduction (HERTIN, SCHULZE)

As producer of simple photographs (art. 128 T.R. LPI) DP has another subsidiary protection. As just mentioned above, art. 128 T.R. LPI do not even need “originality”, the mere or simple technical effort is deemed protected. According art. 128 T.R. LPI DP has the same full economic rights for the term of 25 years as the author of photographic works.

It is our personal opinion that the legislator did not see this problem in all its facets. During the process of legislation there was an intensive debate about the pre-existing works of film production and the rights corresponding to that category of authors. Instead of giving them the category of co-authors of the film, art. 89 T.R. LPI includes a presumption about assignation of their rights to the producer. The photographic works or simple photographs made by a DP can not be considered pre-existing works or creativity. The Spanish legislator included the art. 124 T.R. LPI (former art 114). According this precept, the producer is granted the “exploitation rights of the photographs generated during the process of filmproduction.”

Spanish experts (BERCOVITZ RODIRGUEZ-CANO) criticise this precept as “chaotic” and as not possible to interpret it without infringing all existing legal provisions regarding photographic works and so called “simple photographs” (art. 128 T.R. LPI), recommending its application only for photographs not included in the film. The present report does not allow enough space to intensify this question, later we will see how this lack of legal prevision can be resolved.

3. The Transmission of the Rights to the Film producer

As mentioned above, we suppose, the Spanish legislator did not realise the problem of the double position of the DP as possible (Co-)Author of the film itself and the independent position as author and owner of the rights of photographic works or simple photographs, otherwise he would have not introduced the chaotic prevision of art. 124 T.R. LPI.

This is why that the special regulation for films do not regulate any special presumption of rights, as it does, for example for the authors of pre-existing works (art. 89 T.R. de LPI) and as it did art. 112 of the project of Ley 22/1987. Nevertheless, the DP will normally sign a contract with the Producer where he or she assigns all the economic rights to the Producer. Clauses of the contract which affect the moral rights of the DP should deemed to be not valid because of the irrevocable character of the moral rights.

In case that the DP has not assigned by a contract the rights to the film producer, we have to apply the general provisions of transmission of rights. According to art. 51.2 T.R. de LPI and regarding a employment relationship between DP and producer “it shall be presumed that the exploitation rights have been granted exclusively and with the scope necessary for the exercise of the customary activity of the producer at the time of the delivery of the work made by virtue of the said employment relations”.

4. Conclusion

We have seen that the DP could currently be considered as a author of individual photographic works or, in a subsidiary manner, as producer of “simple photographs”. But this very theoretical interpretation of the Spanish Copyright law is not convincing. Firstly, it generates great problems about the protection of moral rights. Because of its irrevocable character the DP could hinder massively the exploitation of the film. This brings big economic risks to the film industry which is contrary to the aspirations of DPs who are interested in the exploitation of the film. Secondly, the transmission of economic rights is not complete either. Art. 124 T.R LPI do not solve the problem. Experts will only apply this prevision towards photographs (works or simple photographs) not included in the film. The absence of any special regulation for films in the law makes it necessary to apply the general provisions. Art. 51.2 T.R LPI contains undetermined legal concepts as “with the scope necessary for the exercise of the customary activity of the producer”. Legal certainty can not be achieved, which harms both, DP and the producer.

IV.- Recommendations and Conclusions

1. Preliminary Observations

We have seen that the Spanish legislator is free to regulate the (co-) authorship of the film production, while he considers the Director as Author of the film.

The recognition of the creative contribution of DP by the author’s right or related rights must bear in mind the situation of conflict and parallelism of interest in the film production and the film exploitation. The central interest of all parties involved in the production of the film is the unhindered exploitation of the film, permitting the satisfaction of material or immaterial interests and the amortisation of investments. Without the guarantee of the possibility of widely exploiting the film, the DP can not make effective his or her claim to participate in the profits from exploiting the film. If the film can not be exploited, the DP will not normally exploit his creative contribution in a separate manner. This is why, in the following short considerations we will seek to find a fair balance between the interest of film producer and the DP.

As Spain has still not transposed the Directive 2001/29/CE on copyright and related rights in the Information Society and not even published the new Spanish government’s Draft Project of Legislation (Anteproyecto) while other states like Austria and Germany are trying to reform their laws for a second time after the first reform which transposed the Directive, we feel the need to make several proposals in the hope that some could be included in the new draft law. At the same time, the following proposals which this congress aims to pass are considering the current debates on reforming copyright law in other European countries.

2. Specific Considerations for an efficient and operable System of Legal Protection of the Creative Contribution of the DP

a) Inclusion of the DP in the art. 87 T.R. LPI as co-author of the film versus express inclusion of the DP in the art. 105 T.R. LPI as rightholder of the related rights of the performers

Having explained that the core interest of all parties involved in the project of film production is unhindered exploitation and having seen that the creative contribution of DP needs specific recognition of his or her rights, we should raise the question of whether the DP really needs an author’s right or whether his interest can be satisfied by a related right.

As a co-author of the film, the DP assigns his or her rights, either by a special legal presumption regulation as the current art. 88 T.R.LPI or as normally by contract to the producer. Being normally the “weaker” of the contacting parties, he or she will have to accept the “Buy-out” of his exclusive rights without an equitative remuneration.

In contrast the law provides for the performers rights which are also presumed by law to be assigned to third parties, a variety of rights on remuneration as compensation for the (presumed) assignment. So, perhaps it could be an advantage for the DP to be thought of as a performer, as currently the legislator does with the director of a stage performance and the conductor of an orchestra (art. 105 T.R. LPI), because what is the aim of some exclusive rights if they have to be assigned without legal guarantee of compensation?

The idea to grant the DPs a special related right (not the general related right as producer of simple photographs) is not new. The project of Belgian Copyright law of the 22 March of 1986 provided in art. 59 that “... the fitters, directors of photography, camera operators, sound-engineers, vision mixers, decorators, and make-up artists who have participated in the audiovisual work, must be considered performers.” The advantage of such a solution would be that it is not necessary to prove in each case if the work of DP has reached the level of originality, necessary for the protection as author (“method of category” instead of “casuistic method”). Also the unhindered film exploitation could be guaranteed because of the less protection of moral rights of performers.

Regardless of the mentioned advantages, we do not consider the recognition of related rights to DP the best solution. From 1966 until 1987 Spanish legislation allowed, besides the special appointment of the Director and different authors of literary works as co-author of the film, by the mentioned Law 17/1966 to consider co-authors as those “who participate by an activity of intellectual creation in the realisation of the film”. This regulation is the only one which preserves the principle of creativity which is a basic principle of the Spanish Copyright law. It is even better than a specific inclusion of DP in a new number of art. 87 T.R. LPI, because it could also provide rights to other creative artists, involved in the filmproduction, as the cutters, for example.

With good legal regulations regarding the presumption of transmission of rights by express remuneration, as we propose in the following points, there is no danger that the DP as co-author of the film can be excluded from the profits generated by the exploitation of the film and also legal certainty is guaranteed. The condition as author is always more preferable than the one of an owner of a related right, specially because of the protection of moral rights.

It is also preferable the regulation as “author’s right” considering that in the last years the filmproducer themselves are reclaiming an “author’s right” instead of the related right, as they currently have. Even it is our personal opinion that the “lobby” of the producers will not obtain the recognition of their work as “authors”, because of the lack of creativity in their work (Intellectual Property Law is not Industrial or Commercial Law), the recognition of the work of DP as related rights, would aggravate the balance of power between creators and producers.

b) Rejection of “cessio-legis” solution

We mentioned the need of legal certainty regarding the assignment of rights by the co-author of the film. Of course, a cessio-legis regulation in the sense of an original ownership of the co-authors rights by the producer would bring total legal certainty, and would bring the film industry advantages in the international market.

Recently, Germany is discussing to introduce such a prevision in its Copyright law, following the example of Austria. But such a solution is not compatible with the European-continental copyright system, because its origin is in the principle of Anglo Saxon Copyright “work for hire”, where the employer obtains directly and original the rights of the “hired work”. It must be considered an expropriation of the authors and a serious infringement of art. 27 second paragraph of the Universal Declaration of Human Rights (1948), which declares the intellectual property as a human right, as also the art. 17 second paragraph of the European Constitution, which declares “intellectual property rights are protected”.

c) Clear regulation about the legal presumption about transmission of economic rights

Once the condition of DP is stated as co-author of original photographic works, we have seen the problems caused by the lack of a clear regulation about the legal presumption concerning assignment of rights. Art. 124 T.R. LPI has to be considered a totally insufficient and chaotic regulation.

That is why it is recommendable to make a clear legal presumption of assignment of rights which includes all the rights of the co-authors, included those of the co-author who at the same time are authors of an individual, non pre-existing work, as we consider the DP for example. Even the regulation should include the transmission of the subsidiary rights of DP as producer of “simple photographs”. It is necessary to transmit the rights for the exploitation regarding the so called “first market” and “second market”, including the rights for new unknown modalities of exploitation. (For example, art. 45 Dutch Copyright, art. 43 Spanish T.R. LPI and art. 13 Greek Copyright prohibit generally the transmission of rights by unknown forms of exploitation.)

Merchandising rights or the transmission of revocable remuneration rights are not included and should be expressly prohibited. The film producer has his own related right (art. 120 T.R. LPI), so he does not need any “supra”- protection. He should only get in a concentrated form the economic rights for exploitation for the first and second market.

d) Compensation of the legal presumption of global transmission of rights by not renouncable rights of remuneration

We have seen that the Spanish law does not compensate the presumption of transmission of rights of co-author of the film by irrevocable rights of equitable remuneration.

On an international level, it is important to know that with the exception of art. 11bis second paragraph second phrase of the Bern Convention for the Protection of Literary and Artistic Works regarding a compulsory licence for broadcasting communication, there exists no general principle according to which the authors have a right to obtain equitable remuneration in case of transmission of rights.

On the European level, art. 4 of the Council Directive 91/100/EEC on rental rights and lending right has introduced for the first time an irrevocable right for equitable remuneration in the event that the authors and performers have transmitted their rental right to the film producer or producer of phonograms. According art. 90 T.R. LPI (See also: art. 19 Belgian Copyright Law, art. 34 third paragraph Greek Copyright Law, art. 122-125 French Copyright Law) the remuneration for the presumed assignment of rights has to be determined for each exploitation form.

The Spanish law does not specify the “equitable” remuneration as it does for example the Greek and Belgian Law, which imposes a “proportional” remuneration on the basis of the “gross” income of the film exploitation. The Greek law even goes further, specifying some minimum for certain modalities of exploitation.

It is our personal opinion that the proportional remuneration, in addition to a global fee, could bring down the cost of production, because the basic salary could be reduced for granting the creative persons involved in the film production a right of a share in the profits.

Regarding the remuneration of the new, unknown forms of exploitation, we recommend specifying that the remuneration has to be “equitable”.

e) Explicit legal regulation which sets up a maximum of the Film producer’s share in the rights of remuneration of the DP which are revocable

Art. 108 T.R. LPI establishes for performers, that in absence of agreement between the performer and the producer on sharing the amount of equitable remuneration, it shall be in equal parts. Art. 38 first paragraph Austrian Copyright Law establishes the 50% participation of the firm producer. We recommend a similar regulation, but specifying that the 50 per cent is the maximum which the Film producer can get.

f) Explicit legal regulation regarding the moral rights

Spanish law makes some references regarding moral rights of co-authors of the film: The producer can exploit even unfinished works, the destruction of the master is prohibited, etc. (Arts. 92, 93 T.R. LPI). We think the legislator should make the regulation clearer so as to make the exploitation of films easier (for example to avoid problems regarding the colouring of films, the change of the film formats, the interruptions due to publicity, the broadcasting of the logo of a TV channel in the film, etc.).

g) Explicit legal regulation which permits the Producer to reclaim the restitution of transmitted rights to third parts because of non-utilisation

As mentioned above, the DP has an interest for the film to be exploited as much as possible. German and Austrian Copyright Law establish, in a general way, the right to reclaim the restitution of transmitted rights when the rightholder makes no use of it. A similar regulation in Spanish law, specially for films has to be assessed as positive.

h) Explicit legal regulation which provides the Producer with a right to appropriate remuneration in his relationship with the exploiters of the film

For the same reasons as in point g) such a regulation not only benefits the producer but also the author. As it is well known, the producers do no exploit the films by themselves. When they sign contracts with third parties such as TV broadcasters, renters of films, etc. quite often the producer only receives a “global” fee. A right for equitable remuneration for the producer has to be introduced in the Spanish Law.