Negotiating the new economy: The effect of ICT on industrial relations
9. Widening the negotiating agenda: Copyright and intellectual property rights
In the age of information, value will lie increasingly not in physical assets but in intellectual property. What is sometimes seen as the arcane world of copyright and IPR raises profound public policy issues concerning access to and ownership of information. The framework is being built now which will establish, perhaps for several generations, the way in which public and private interests are met.
The World Intellectual Property Organisation (WIPO) published in mid-2000 a comprehensive overview of the issues posed by the growth of the internet, e-commerce and electronic forms of data storage.105 As WIPO says: "Materials protected by copyright and related rights, spanning the range of information and entertainment products, will constitute much of the valuable subject matter of electronic commerce".
Although the WIPO Primer does not concern itself with industrial relations issues, there are significant concerns relating to the intellectual property rights of workers. Perhaps not surprisingly, it has been the international trade union organisations representing workers in the artistic and creative sectors which have taken a lead in raising this issue.
The International Federation of Journalists launched an international authors rights campaign at a conference, Authors Rights for All, held in June 2000. The background to the campaign has been moves in recent years by several international publishers to seek to ensure that they have the rights necessary to exploit created material in new digital media, as well as in other media not yet invented. These moves (dubbed a rights grab by journalists) have been controversial and have been the subject of a number of legal cases.
In the US, Jonathan Tasini and other freelance members of the National Writers Union first challenged in 1993 the right of the New York Times to republish material contributed by them for use in the print edition in a commercial electronic database. A interim court ruling in 1997 found for the newspaper, but this was reversed on appeal in 1999 in a judgment which appears to establish that freelance writers should be paid for electronic publication of copyright material. A similar class action, initiated by freelance writer Heather Robertson, was launched in Canada in 1999, and the issue has also been subject to court action in the Netherlands.106
However, there are also examples where the issue of electronic publication rights has been resolved through collective agreements. Some examples are those between Les Echoes and the French union of journalists, Guardian Newspapers Ltd and the National Union of Journalists (UK) and the Danish newspaper publishers association and the Danish union of journalists.107
The IFJs Authors Rights campaign draws attention to differences between countries, and to the distinction between copyright and authors legal moral rights. There are also differences between the rights enjoyed by employees and the self-employed. Copyright in work produced by workers under employment contracts is generally acquired automatically by the employer.
The International Federation of Actors (FIA) and the International Federation of Musicians (FIM) have both drawn attention to issues raised by performance rights in new electronic media. For actors, the FIA has identified the creation and development of mechanisms for obtaining secondary payments for the use of performances as perhaps the most challenging issue facing actors unions worldwide. The FIA claims that "the balance of power in the bargaining relationship between the performer and producer means that rights can be easily transferred to the producer, and in most film contracts the actor is required to assign to the producer all rights in all media in perpetuity".108
Audiovisual performers rights (which, although protected by multilateral treaties remain currently outside the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty, negotiated in 1996) are to be the focus of a WIPO diplomatic conference called for December 2000.
The distribution of music electronically over the internet and the challenge posed to the established music industry has been the subject of much attention. Recent developments include an agreement between Warner and music website mp3.com109 and a court case by the recording industry against web service Napster.110
For individual musicians, there are similar problems to writers and performers in maintaining any control of the exploitation of their work electronically. The International Federation of Musicians (FIM) has drawn particular attention to the situation facing musicians in developing countries. In a study of musicians in Asia, Africa and some Latin American countries, FIM has pointed out that the usual self-employed status of musicians and the common lack of written contracts leaves individuals vulnerable. FIM has called for the establishment of efficient structures for collecting royalties and paying artists in these regions.111
For individual creative artists, the task of policing copyright and obtaining payments for use are almost insuperable. In many countries, therefore, copyright creators have chosen to work collectively through established collecting societies. As intellectual property rights become increasingly important, these collecting societies will become more directly of relevance in industrial relations. The IFJs Authors Rights campaign calls for a focus "on the importance of close co-operation between licensing systems for authors all over the world and the possible advantages of creating one worldwide author-controlled licensing system".
Whilst IPR is an issue primarily facing freelance and "e-lance" workers, workers' representatives may wish to ensure through collective bargaining that individual employees receive adequate remuneration for the benefits to their employer from their creative efforts. This concerns not only workers in the media and entertainment industry but also software writers of computer programs.