June 23, 2016 | By Elliot Harmon and Jeremy Malcolm

Chilean Proposal for Unwaivable Payments to Authors Creeps Onward to Colombia

Copyright Creep

EFF has observed an alarming trend: when certain parties face challenges in attempting to monetize their contributions to copyrighted works, lawmakers often attempt to address it by handing out new copyright-like veto powers. We've dubbed this trend "copyright creep", and it's running rampant all over the world.

The problem with these sorts of copyright-adjacent veto powers is that they invariably impact the rights of far more people than they were intended to help. For example, the Senate of Chile is currently considering a proposal to give authors of audiovisual works a new unwaivable entitlement to remuneration for the use of their content online. The law is ostensibly intended to stop rights holders from treating the authors of audiovisual works unfairly. But in effect, it actually limits the rights of those same authors. It also makes content licensing more complicated and expensive for both licensors and licensees.

Take ActionTell Chilean lawmakers: Don't kill open licensing!

The theory behind this ill-considered proposal is that authors are frequently required to sign away their copyrights in order to commercialize their works, and that an additional, unwaivable right of remuneration would keep copyright assignees from ripping them off. Creating new rights that authors can't sell doesn't solve that problem, though. It actually weakens authors' leverage to negotiate for better licensing terms.

As copyright creep always does, the Chile proposal goes far beyond the people it's intended to help. Some creators want to be able to waive their rights; for example, using Creative Commons licenses. In fact, there are even video creators whose business models rely on open licenses. This law would effectively make it impossible to license a video under CC.

The law would also create unnecessary obstacles for traditional licensing of video works. Anyone who wants to license them for use online would essentially have to pay twice for the exact same thing—once for the copyright license, and again for the author's unwaivable entitlement, notwithstanding that both of these payments derive from the same act of authorship. (This doesn't even include the separate payment to any performers featured in the video, which Chile's law also makes unwaivable.)

Separate, overlapping claims to remuneration for the same subject matter are typical problems arising from the copyright creep, which also affect proposals for new broadcasters rights at WIPO, for new publishers' related rights in Europe, and for new audiovisual performers' rights here in the United States. Each of these could also make it impossible to provide free access to public domain or CC-licensed content that would otherwise be free of copyright restrictions, and would complicate the process of licensing content that remains restricted by copyright.

Worryingly, the misguided Chilean proposal has begun to spread throughout the continent. A similar proposal has emerged in Colombia, which proposes to introduce a new unwaivable entitlement to remuneration for directors or filmmakers, screenwriters, and librettists of audiovisual works. The only exception recognized is for "strictly educational purposes within the grounds or buildings of educational institutions." We are still gathering more details of this proposal and of its progress through the Colombian Parliament, but arresting the progress of the proposal in Chile will certainly assist the fight against similar wrong-headed proposals elsewhere in Latin America, of which Colombia's may not be the last.

Not every problem can be solved by expanding copyright or creating new copyright-adjacent rights. There are many ways, both inside and outside the legal system, to address the problem of unfair copyright licensing agreements. The current Chilean proposal wouldn't solve that problem, but it would create a host of others. Every time policymakers invoke copyright creep, it comes at a cost to innovation and free expression online.

Take ActionTell Chilean lawmakers: Don't kill open licensing!


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