We are happy to present the fifth entry in our series of working papers released in 2021. The paper is a joint re-issue of three articles first published in a special section of the European Intellectual Property Review concerning reversion rights in Europe (May 2021, 43(5)).
Reversion rights became a topical issue in Europe following the adoption of the Directive on Copyright in the Digital Single Market which introduces a new right of revocation to the EU copyright framework. The right gives effect to a “use-it-or-lose-it” principle, entitling authors and performers to reclaim their works when they are not exploited. While reversion rights are not a novelty to a number of EU Member States, the current reversion rights landscape is fragmented, with provisions often limited to certain works or agreements.
In an opinion entitled “Getting creators paid: one more chance for copyright law” Martin Kretschmer and Rebecca Giblin name reversion rights one of the most promising ideas for re-imagining copyright law, within the current boundaries. They argue against the accumulation and warehousing of rights, pointing out that copyright must benefit creation.
The opinion introduces an Open Letter signed by a group of leading academics first published in December 2020. The letter calls upon the European Commission and the relevant authorities of EU Member States to take the “right of revocation” under Article 22 of the Copyright Directive seriously, as is it offers a “once-in-a-generation opportunity” to secure new income for creators, new exploitation opportunities for investors and new access for the public.
With the Copyright Directive implementation deadline less than a month away (7 June), it is important to reinforce this message. As the CREATe’s implementation resource page shows, to date only two Member States have implemented the Copyright Directive, thus a lot of work remains to be done.
The open letter builds on a collaborative project between CREATe and the Intellectual Property Research Institute of Australia (IPRIA), University of Melbourne, with the reCreating Europe consortium. The project mapped all provisions allowing authors and performers to reclaim their rights. The results of the mapping can be explored via a Reversion Rights Resource, with a CREATe working paper by Ula Furgał “Reversion rights in the European Union Member States” providing a complete record of the mapped provisions.
Ula Furgał’s article “Interpreting EU reversion rights: why ‘use-it-or-lose-it’ should be the guiding principle” further builds on the project’s comprehensive mapping. It shows that European jurisdictions tend to prefer use-based to time-based “triggers” (such as a termination right after a specific number of years). Ula argues that there is a lack of understanding what sufficient exploitation means, especially in the digital context. This shortcoming can and should be amended during the implementation of the new revocation right by specifying what a meaningful use is.
An article by Elena Cooper “Reverting to reversion rights? Reflections on the Copyright Act 1911” offers a distinct historical perspective on the reversion rights. It uncovers the legislative history of reversion in the UK Copyright Act 1911, which also applied to the British Empire (including Ireland, Malta and Cyprus). Elena shows that the common law tradition of freedom of contract is compatible with constraints on contractual transfers, and that UK reversion provisions historically were a direct response to the significant increase in the copyright term in 1911.
These three contributions hope to shape the debate on the revocation rights, and the unique opportunities those rights provide for creators.
The full paper can be downloaded here.