Page 122 - Law and the Media

Rights Clearances
for world-wide use in order that the final product can be exploited as widely as possible. In
such circumstances, the licence fee will be considerably greater than that paid for domestic
exploitation.

Further use and exploitation
In many cases, a producer or editor may only be able to clear certain rights because of
budgetary restraints. In such cases, he will clear and pay for specific rights, as well as
obtain permission in principle from the rights owner for other uses or exploitation on
condition that he pay a specific amount for such additional use or exploitation if and
when it occurs.

If the producer or editor does not clear additional uses at the outset, he will need to enter
into subsequent, separate negotiations for further exploitation of the rights in order to
avoid breaching the contributor’s copyright.

5.4 Rental rights

The Rental and Lending Rights Directive (the ‘Directive’) (92/100/EEC), formulated by
the European Commission and incorporated into domestic law by the Copyright and
Related Rights Regulations 1996 (‘the Regulations’) which amend the CDPA, is another
issue that must be considered when dealing with rights clearances.

Under the Regulations, exclusive ‘rental and lending rights’ are granted to authors of
literary, musical and dramatic works and most artistic works (as defined under the CDPA
– see Chapter 3). Similar rights are granted to performers in respect of recordings of their
performances.

When an author and a film producer enter into an agreement, the author’s exclusive rental
right in the film is presumed to be transferred to the producer unless the contract provides
otherwise (Regulation 12). However, authors and performers who transfer their exclusive
rental rights in films and sound recordings to producers retain a right to ‘equitable
remuneration’ for rental of the sound recording or film. This right to ‘equitable
remuneration’ cannot be waived by authors and performers (Regulation 14). Unfortu-
nately, there are no payment scales or guidance as to what constitutes ‘equitable
remuneration’.

A producer of a film or sound recording should always ensure that any agreement with
an author, lyricist, scriptwriter, playwright, director, interviewee or composer includes the
transfer of rental rights along with the transfer of any copyright, waiver of moral rights or
performers’ rights consent. The producer must also secure the consent in writing of
the individual, that the proposed remuneration is an appropriate payment for their
services.
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