Reversion rights again became a topical issue in Europe following the adoption of the Directive on Copyright in the Digital Single Market which introduces a new right of revocation to the EU copyright framework. The right gives effect to a “use-it-or-lose-it” principle, entitling authors and performers to reclaim their works when they are not exploited. While reversion rights are not a novelty to a number of EU Member States, the current reversion rights landscape is fragmented, with provisions often limited to certain works or agreements.
The Author’s Interest Project, IPRIA and CREATe joined forces to map this fragmented legal landscape as a part of a collaborative research project. The results of the mapping, capturing all provisions allowing authors and performers to reclaim their rights, can be explored via the Rights Reversion Resource Page. In May 2021 the collaborators came together again to contribute to a special section of the European Intellectual Property Review (43(5)) concerning reversion rights in Europe.
In an opinion entitled “Getting creators paid: one more chance for copyright law” Martin Kretschmer and Rebecca Giblin name reversion rights one of the most promising ideas for re-imagining copyright law, within the current treaty-mandated boundaries. They argue against the accumulation and warehousing of rights, pointing out that copyright must benefit creators and promote access.
The opinion introduces an Open Letter signed by a group of leading academics first published in December 2020. The letter calls upon the European Commission and the relevant authorities of EU Member States to take the “right of revocation” under Article 22 of the Copyright Directive seriously, as is it offers a “once-in-a-generation opportunity” to secure new income for creators, new exploitation opportunities for investors and new access for the public.
It is important to reinforce this message now. Even though the implementation deadline passed on 7 June, only 4 Member States have transposed the right of revocation to their national legal orders, and the implementation proposals tabled to date show that Article 22 is not given thorough consideration. Thus a lot of work remain to be done.
Ula Furgał’s article “Interpreting EU reversion rights: why ‘use-it-or-lose-it’ should be the guiding principle”, like the Open Letter, builds on her work as part of the joint Author’s Interest Project-IPRIA-CREATe mapping project. It shows that European jurisdictions tend to prefer use-based to time-based “triggers” (such as a termination right after a specific number of years). Ula argues that there is a lack of understanding what sufficient exploitation means, especially in the digital context. This shortcoming can and should be amended during the implementation of the new revocation right by specifying what a meaningful use is.
Finally, an article by Elena Cooper “Reverting to reversion rights? Reflections on the Copyright Act 1911” offers a distinct historical perspective on the reversion rights. Inspired by earlier work by Rebecca Giblin and Joshua Yuvaraj, it uncovers the legislative history of reversion in the UK Copyright Act 1911, which also applied to the British Empire (including Ireland, Malta and Cyprus). Elena shows that the common law tradition of freedom of contract is compatible with constraints on contractual transfers, and that UK reversion provisions historically were a direct response to the significant increase in the copyright term in 1911.
These three contributions hope to shape the debate on the revocation rights, and the unique opportunities those rights provide for creators.
All three contributions are also available as a CREATe Working Paper which can be accessed here.