1 Making Broadcasts Accessible OnlineInstituut voor informatierecht (IViR) Making Broadcasts Accessible Online A Study on the Copyright- Related Environment and Industry Practice By: dr. Simone Schroff

2 The conundrum: making TV broadcasts accessible onlineNISV holds 498,127 TV broadcasts (~2015) made by public service broadcasters Most have been digitised Only 2% are accessible online Main reason: uncertainty about the copyright status Especially who can provide a license

3 The copyright issue Making broadcasts accessible online requires 2 rights: reproduction and making available No exemptions are available for large scale project Each TV broadcast is made up of a combination of copyright works and neighbouring rights Terms and right holders vary Creator- doctrine Need to identify the right holder

4 Copyright works Recurring featuresFocus of Protection First Owner Term of Protection Recurring features Detailed storyline as combination of common themes Author(s) Death in 1945 last surviving author died in 1945 Specific description of a format Recognisable, detailed characters which are made up of a combination of specific features Pre-existing works Underlying novel etc Script, representing the adaptation of the pre- existing work News Edited and corrected news statements News programs as a whole Spoken Words Non-script based, spoken communication by an individual Structured interviews Music Musical composition and lyrics last surviving author died in 1945 Moving Images (film work) Audio-visual work, meaning moving images with or without sound last surviving author died in 1945: principal director, scriptwriter, author of the dialogue, composer of film music - if work was made before 1996: special rules Copyright works

5 Performance of a copyright work, with a minimum degree of personality Focus of Protection First Owner Term of Protection Performance Performance of a copyright work, with a minimum degree of personality Performer Fixation occurred after 1965 - if fixation on phonogram: fixation occurred after 1945 Phonogram Recording of sound Phonogram Producer Recording was made after 1965 - if communicated to the public: fixation occurred after 1945 Fixation of Film Recording of moving images, with or without sound Film producer - if distributed or communicated to the public: 50 years from that date Broadcast Transmission of work as a broadcast, both radio and TV Broadcaster Transmission was made after 1965

6 The doctrinal view Large number of authors and right holdersComplicating factors: Special ownership rules Transfers Long timeframe: the law is not static BUT: this is not what the data says

7 The information used in this projectProject had access to two distinct sets of empirical evidence 1) Schoon Schip empirical data Copyright status and rights division for a sub-set of TV broadcasters Holds information at season level on things like rights holder, exclusive rights, territory, duration and purpose of use 2) catalogue empirical data All of the broadcasts in NISV’s archive Records general information but also copyright-relevant roles e.g. author, scriptwriter, director, producer etc

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9 What we don‘t see: individual authors holding the rights Conclusion: company ownership by especially public service broadcasters and independant producers What we don‘t see: individual authors holding the rights Conclusion: The doctrinal analysis by itself is insufficient Public service broadcasting market practice concentrates the rights into the hands of few people However, how this happens is important Typ hier de footer

10 Mechanism for rights concentrationEffect of this information crucially depends on how the broadcaster got hold of the rights 1) via copyright law directly: the broadcaster is the ‘maker’ 2) transfer of rights: the broadcaster is the assignee or licensee of the rights, but not the ‘maker’ Difference: maker owns all rights, even new ones, while the assignment has to be interpreted as limited to the purpose of the contract Main issue is unknown uses: could be excluded from the transfer Full transfer is possible but increasingly unlikely Main question: which mechanism explains the concentration of rights? How does it vary across time? Main research question essentially asks: what was common market practice? Making works accessible is an unknown use at least until the early 1990s

11 Process-tracing: assessing the likelihood of alternative explanationsNo dataset available to test the different explanations statistically Process-Tracing: explain a given phenomenon by identifying the processes through which it is generated Process= more than one point in time Each theoretical explanation (mechanism) is translated into observable characteristics Process- tracing: see if mechanism‘s evidence is visible at different points in time To use this methodology, each mechanism has to be highly conceptualised and indicators selected

12 Mechanisms relevant for TV broadcastsMethodology: process- tracing to examine three mechanisms 1) employment (art. 7 Aw and related provisions in WNR) 2) first communication to public by legal entity (art. 8 Aw and related provisions in WNR) 3) transfers (combination of articles, both copyright and neighbouring rights)

13 A mechanism in process-tracingStep 1: conceptualise mechanisms  identify core observable characteristics Step 2: mechanism across time  when and where more likely, least likely Amend/ expand observable characteristics Step 3: carry out process tracing tests All mechanisms are equal

14 How does it work? (example: employment)Step 1: conceptualise the mechanism Detailed doctrinal analysis of how the rules on employment have changed since 1912 Focus on turning points  table

15 Note that I divided it into: Rule itself From 1912 1951 1973 1988 Legal Provision In the course of employment, unless agreed otherwise Interpretation Relationship of authority: employer defines the tasks Salary/ compensation All works covered by employment Explicit employment contract Implicit Scope of Employment (Sense of Duty) Implicit Scope of Employment (Sense of Duty) Creation of work is required by employer Scholarly debate Moral rights assumed owned by employer Ownership of moral rights debated: tendency towards author ownership Contracts to the contrary not discussed Contracts to the contrary are increasingly relevant, including implicit ones This is an extract Note that I divided it into: Rule itself Intepretation based on case law Scholarly debate - Legal interpretation matters more than scholarly debate  observable pattern more pronounced for the former than the latter

16 NWO Project: How does it work? (employment)Step 1: conceptualise the mechanism Detailed doctrinal analysis Step 2: identify observable characteristics that reflect the legal relevance Always in the form of hypothesis Special attention to turning points Turning points: usually not the same across mechanisms and therefore especially valuable in terms of affirming/ weakening hypotheses Chosen indicators crucially depend on the kind of data or observations available

17 Examples of HypothesesE3: Due to the financial resources required, the author will most likely be a legal entity. This will most likely be a single entity. E8: Permitting the author to put his name on a work can indicate an implicit contract, acting as a disincentive to the naming of authors (especially after 1973). Works of employment are therefore more likely to not have any author information.

18 NWO Project: How does it work? (employment article)Step 1: conceptualise the mechanism Step 2: identify indicators that reflect the legal relevance (hypotheses) Step 3: test hypotheses Define test strength and data points Run the tests - Turning points: usually not the same across mechanisms and therefore especially valuable in terms of affirming hypotheses

19 Types of Test in Process- TracingIn the social sciences: affirmation rather than confirmation Process- tracing forces the researcher to think about Change across time Type of evidence (qualitative or quantitative) Strength of the test in terms of affirming hypothesis as well as relating to each other In the natural sciences: laws of nature always apply In the social sciences: the best explanation known so far  absolute certainty is never possible

20 4 Types of Test: the ‘Puddle- Mystery‘Straw in the Wind Test Hoop Test Smoking- Gun Test Double Decisive Test

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22 Example 1: Hoop Test E3: Due to the financial resources required, the author will most likely be a legal entity. Hoop test: look more for evidence to the contrary Other explanations exist for having only a legal entity but it is not theoretically likely that an individual acts as an employer in the context of broadcasting Indicator: type of right holders that own exclusive rights Especially look for those where the right holder is an author

23 Category of Right HolderOnly legal entities own TV broadcasts Decade Category of Right Holder Total Foreign Broadcaster Independent Producer Public Service Broadcaster 1950s 5 180 185 1960s 2 20 1111 1133 1970s 8 41 783 832 1980s 7 217 910 1134 1990s 76 893 1993 2962 2000s 48 1223 2283 3554

24 Example 2: Smoking Gun and Straw in the Wind TestE8: Permitting the author to put his name on a work can indicate an implicit contract, acting as a disincentive to the naming of authors (especially after 1973). Works of employment are therefore more likely to not have any author information. Straw Test: not naming authors Other explanations are possible Smoking Gun Test: specific drop around 1973 So theory specific and no alternative explanations relating to any theory or technical situation at NISV Indicator: share of TV broadcasts that have at least one author qualifying role named

25 Naming authors in the 1970s Year At Least One Key Authorship Category1971 11% 1972 10% 1973 8% 1974 7% 1975 9% 1976 1977 1978 12% 1979 16%

26 Example 3: constructing a double decisiveUnder employment rules, the third party is the author: rights should be highly concentrated Series of individually tested hypotheses but the strongest case if they all occur at the same time Concentration highly unlikely under transfer rules Indicator: combination of all exclusive rights, territory (at least the NL), full duration and all purposes of use

27 Fully concentrated rights Decade Full Rights Total Percentage 1950s 64 179 36% 1960s 740 1111 67% 1970s 441 784 56% 1980s 199 903 22% 1990s 30 1902 2% 2000s 10 2177 0%

28 Weighted Tests Type of tests vary according to evidentiary value in relation to tested hypothesis as well as other hypothesis Absolute scores Weaker results Weights applied: Straw test: 1 Smoking Gun Test: 1.5 Hoop test: 2 Combined test: 3

29 Summary Methodology Detailed doctrinal analysis of all provisions relating to either trasnfers or deviations from the creator doctirne Translation of changes of into hypothesis which can be empirically tested Empirical analysis based on weighted tests

30 Overall Number of TestsDeviations from Creator Doctrine Decade Employment Communication by public entity Transfers 1950 15 6 1960 1970 16 9 1980 1990 10 2000 8

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32 Area Indicator Test Type 1950s 1960s 1970s 1980s 1990s 2000sownership Schoon Schip: Ownership by Legal Entity Hoop Schoon Schip: Single right holder Straw Catalogue: No contributor information Catalogue: 1 producer and 1 broadcaster rights concentration Schoon Schip: average number of rights Schoon Schip: Distinct Number of Rights Schoon Schip: Type of right Schoon Schip:identity of uses Schoon Schip: number of distinct jurisdictions Schoon Schip: identity of jurisdictions Schoon Schip: Duration Schoon Schip: combined concentrated ownership 4x Combined Smoking Gun contract Schoon Schip: contract present importance of authors Catalogue Data: broadcast without author Catalogue Data: author categories Catalogue Data: author categories (specified drop) Smoking Gun Catalogue Data: importance director 1950s combined rights: many productions have no information at all rather than split rights

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34 Area Indicator Test Type 1950s 1960s 1970s 1980s 1990s 2000sOwnership Schoon Schip: Ownership by Legal Entity Hoop Schoon Schip: single right holder Straw Catalogue: No contributor information Catalogue: 1 producer and 1 broadcaster Rights Concentration Schoon Schip: average number of rights Schoon Schip: Distinct Number of Rights Schoon Schip: Type of right Schoon Schip:identity of uses Schoon Schip: number of distinct jurisdictions Schoon Schip: identity of jurisdictions Schoon Schip: Duration Schoon Schip: combined concentrated ownership 4x Combined Smoking Gun Reliance on Contracts Schoon Schip: contract present Importance of Authors Catalogue Data: broadcast without author Catalogue Data: author categories Catalogue Data: importance director Smoking Gun

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36 Area Indicator Test Type 1950s 1960s 1970s 1980s 1990s 2000s 2010s ownership Schoon Schip: Legal Entity Straw Catalogue: 1 producer and 1 broadcaster rights concentration Schoon Schip: average number of rights Schoon Schip: average number of rights 1970s Smoking Gun Schoon Schip: Distinct Number of Rights Schoon Schip: Type of right Schoon Schip: identity of jurisdictions contract Schoon Schip: contract present Schoon Schip: presence 1970s (status authors) Schoon Schip: increase 1980s (article 45d) Schoon Schip: increase 1990s ( reforms) importance of authors Catalogue Data: broadcast without author Catalogue Data: author categories Catalogue Data: importance director Catalogue Data: importance composer Catalogue Data: importance performer

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38 Conclusion Until the 1980: TV broadcasts are most likely made by employment or communication by a public entity (both deviations from creator doctrine) 1980s: mixed picture Leaning towards deviations to the creator-based mechanisms but it depends on the individual production After 1990: dominant mechanism is transfers

39 Implications: who owns the making available right?Up until 1980: most likely the broadcaster TV broadcasts made from the 1990s onwards Making available online covered in contracts+ presumption of transfer Troublesome: TV broadcasts between 1980 and early 1990s: making available not likely to be part of contracts The more authors, the more difficult it gets

40 Thank you for your attention!