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Chilean Bid to Help Authors Will Chill Audiovisual Content Online

Authors around the world are realizing the benefits of sharing their work in new ways, finding new audiences by refusing to articipate in traditional methods of distribution and licensing.  But a new proposal in Chile could undermine those choices, at least for Chilean creators.

In pursuing copyright reform around the world, we usually stress the need to balance the rights of users with those of copyright owners. But it's also important to balance the rights of authors with those of copyright owners. Many people understandable think they are the same people. But they often aren't.  Authors (including artists, songwriters and filmmakers) routinely give up their copyrights to large companies in exchange for those companies handling the marketing and management of their work. If the terms of this exchange are unfair, because of the company's greater bargaining power, this can leave the author in a precarious position (the story of Little Richard selling the rights to Tutti Frutti for $50 is illustrative).

A current proposal in Chile shows how hard it is to address this tension without trampling on the rights of secondary users and undermining the burgeoning efforts to give authors more choices about how their works might be handled.

Existing Chilean law give the performers of audiovisual works a right to receive compensation when their performances are broadcast, rented or made available to the public. The kicker is that this right to compensation is independent of the copyright—even if the performer transfers their copyright to someone else, they are still entitled to the royalties, and the law doesn't even permit them to waive that right (presumably because they could easily be coerced into waiving it). This, in itself, is problematic, for reasons that we've explained when writing about a similar proposal for U.S. law (though in the case of that U.S. proposal, the right could at least be waived or assigned). The problems with the U.S. proposal that we described also apply to the existing Chilean law:

Performers (or, in many cases, the companies to which they transfer their rights) could create new roadblocks to the creation of parodies, mash-ups or new versions of their performances, independent of copyright. It would further complicate the process of clearing rights to audiovisual works, and cast a new legal cloud of uncertainty over the activities of creators, producers, and journalists who build on audiovisual works in compliance with copyright law.

In Chile's case this much has been law since 2008. But it's about to get a whole lot worse. The House of Representatives of the Chilean Congress recently approved an amendment to the law that would extend the unwaivable right to remuneration to authors of audiovisual works, and require a copyright collecting society to administer those rights.  It would mean that all of the contributors to an audiovisual performance whom the law regards as authors (which includes the music composer, the scriptwriter, the choreographer, and the director) would all be entitled to payment whenever their work is used online, even if they never asked for payment and don't want it. This would apply for the duration of the copyright, and would apply both to local and foreign works.

This might sound like a benefit to authors, but it comes at a very high price for the public and for authors themselves. This change, if it came into effect, would prevent anyone whose work is performed from effectively dedicating that work to the public domain, or licensing it under a free license, such as a Creative Commons license. Yet in the words of the Public Domain Manifesto, "The voluntary relinquishment of copyright and sharing of protected works are legitimate exercises of copyright exclusivity," and should be respected by the law. Why? Because authors very frequently have motivations other than monetary remuneration for creating audiovisual works, such as self-expression, obtaining recognition from their peers, telling a story or teaching a message. Many of these motivations are better served by allowing works to be copied, shared, and modified freely, rather than by locking them away and demanding payment. The proposed amendment to Chilean law would extinguish this option for millions of authors of audiovisual works.

The results won't be limited to individual creators, but will also impact upon online platforms that facilitate access to audiovisual works—indeed, these are doubtless the real intended target of the amendment. If the Senate passes the bill, Chilean collecting societies will soon after present the major audiovisual sharing websites, such as YouTube, with a bill for the remuneration of all of millions of hours of authored audiovisual content made available through that platform. YouTube can probably afford to pay the freight, but smaller sites will not. We can only speculate about how much of this booty would end up going back to the authors, and how much would end up lining the pockets of the collecting society.

This is the wrong solution to the problem of unfair treatment of authors of audiovisual works, because it disregards the wishes of those authors, and restricts access to their content; perhaps even shutting down entire Internet platforms. (We've seen this before, when legislators carelessly brought in new copyright-like rights for a special interest group.) Better solutions might lie outside of copyright law altogether, such as making it easier for authors to challenge unfair publishing contracts.

The amendment bill is currently before the Chilean senate, and we may have as little as two weeks to stop it. If you would like to help, especially if you are Chilean or if you are an author or represent authors who will be impacted by this bill, now is the time to speak up and take action.

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