Article 22 of the Directive on Copyright in the Digital Single Market provides for a right of revocation (DIRECTIVE (EU) 2019/ 790, adopted in April 2019). This gives effect to a ‘use-it-or-lose-it’ principle. EU Member States must provide authors and performers who licensed or transferred their rights on an exclusive basis with a right to revoke this transfer or license in case their works are not exploited. It is a general provision applying to all types of copyright works.
The final shape of the revocation right in EU Member States’ laws will depend on the transposition process. Member States are left with considerable freedom in implementing art. 22. They can decide whether to adopt special provisions for different sectors, different types of works, including collective works, as well as whether to introduce time limitations. The transposition process is ongoing, with implementation deadline set for 7 June 2021.
Mapping national provisions
Reversion rights are not a novelty to a number of the EU countries. National laws already provide for the return of rights to the authors and performers in certain situations. Considering that the inclusion of the right of revocation in the Copyright Directive was not accompanied by a focused discussion on its form or merit, a question arises: are there any lessons to be learnt from current national solutions to aid the art. 22 implementation process?
To find those valuable lessons, we mapped provisions which are already a part of national laws across the EU, exploring how they work and how they affect creator contracts. A summary of the mapping is presented in the table below. The table is a visual representation of provisions which are currently in force (marked green) and historical provisions (marked yellow).
You can further explore the table by clicking on the image:
Our mapping shows that the laws of Member States offer a variety of solutions allowing authors and performers to terminate agreements and to regain their rights. Some of those provisions are general in their nature, others apply only to certain types of works (audiovisual, adaptations, journalistic etc) or certain types of contracts (publishing agreements, adaptation agreements etc). A general use-it-or-lose-it right similar to that introduced by article 22 of the Copyright Directive is a part of national laws of 8 Member States.
It is possible to distinguish four different types of revocation rights depending on how they are triggered.
- The first group of provisions is linked to the exercise of rights and the use of works. It includes use-it-or-lose-it provisions as well as provisions triggered by the lack of initial use of works, for example publication of a book, and insufficient or inappropriate use of works.
- The second group brings together provisions triggered by moral rights concerns, when the use of work is no longer in tune with author’s convictions or reputation.
- The third group includes provisions triggered by the change in licensee’s or a transferee’s circumstances, such as bankruptcy, insolvency or a lack of a legal successor.
- The fourth group are provisions triggered by a simple passage of time, with rights reverting back to the authors and performers after certain period of time lapses.
Provisions resembling the US termination right allowing authors to terminate the assignments after 35 years are a rarity in the EU Member States. More common are provisions prescribing a maximum term for which an agreement can be made.
Rights can revert back to creators automatically, however, in most situations authors and performers need to actively pursue their rights, by notifying their intent to terminate or setting an additional period of time for the use of work to resume.
DIRECTIVE (EU) 2019/ 790 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL – of 17 April 2019 – on copyright and related rights in the Digital Single Market and amending Directives 96/ 9/ EC and 2001/ 29/ EC
Article 22 – Right of revocation
1. Member States shall ensure that where an author or a performer has licensed or transferred his or her rights in a work or other protected subject matter on an exclusive basis, the author or performer may revoke in whole or in part the licence or the transfer of rights where there is a lack of exploitation of that work or other protected subject matter.
2. Specific provisions for the revocation mechanism provided for in paragraph 1 may be provided for in national law, taking into account the following:
(a) the specificities of the different sectors and the different types of works and performances; and
(b) where a work or other subject matter contains the contribution of more than one author or performer, the relative importance of the 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.
Member States may exclude works or other subject matter from the application of the revocation mechanism if such works or other subject matter usually contain contributions of a plurality of authors or performers.
Member States may provide that the revocation mechanism can only apply within a specific time frame, where such restriction is duly justified by the specificities of the sector or of the type of work or other subject matter concerned.
Member States may provide that authors or performers can choose to terminate the exclusivity of the contract instead of revoking the licence or transfer of the rights.
3. Member States shall provide that the revocation provided for in paragraph 1 may only be exercised after a reasonable time following the conclusion of the licence or the transfer of the rights. The author or performer shall notify the person to whom the rights have been licensed or transferred and set an appropriate deadline by which the exploitation of the licensed or transferred rights is to take place. After the expiry of that deadline, the author or performer may choose to terminate the exclusivity of the contract instead of revoking the licence or the transfer of the rights.
4. Paragraph 1 shall not apply if the lack of exploitation is predominantly due to circumstances that the author or the performer can reasonably be expected to remedy.
5. Member States may provide that any contractual provision derogating from the revocation mechanism provided for in paragraph 1 is enforceable only if it is based on a collective bargaining agreement.
This resource is the result of a collaborative project between CREATe, University of Glasgow and the Intellectual Property Research Institute of Australia (IPRIA), University of Melbourne. It has been supported by Assoc. Prof. Rebecca Giblin's ARC Future Fellowship The Author's Interest and the European Union’s Horizon 2020 research and innovation programme under grant agreement No 870626870626 (“reCreating Europe: Rethinking digital copyright law for a culturally diverse, accessible, creative Europe”, WP3 Authors and Performers, D3.1: Dr Ula Furgal and Prof. Martin Kretschmer).