European Commission,
the Audiovisual and Media Policies Unit of the DG for Information Society and
Media,
Brussels, Belgium
Stockholm, 5th of September 2005
We, 17 member organisations of KLYS (The Swedish Joint Committée for Artistic
and Literary Professionals), representing some 30.000 individual Swedish
artists, among these creative and performing artists involved in the making of
films and other television content, would like to address the European
Commission on the revision of the ‘Television without frontiers’ Directive. KLYS
urges the Commission to take the opinions of these organisations into serious
consideration.
Our written contribution will be limited to the provision of the TV Directive
that regulates the insertion of advertisements (Article 11).
The respect for artists’ intellectual property rights is of fundamental
importance in all TV broadcasting. Both the Moral and Economic rights of film
creators and performers must be taken into account in the review of the TV
Directive.
Article 11.1 in the current TV Directive stipulates as a principle rule that
advertisements shall be inserted between programmes. This is a very important
principle to authors and performing artists whose artistic works and
performances are broadcast in TV. However, the effect of this very clear
regulation is undermined by the following sentence in article 11.1, which says
that under certain conditions advertisement interruptions are permitted during
programmes in such a way that the integrity and the value of the programme and
the rights of the rights holders are not prejudiced. The condition concerning
commercial breaks in feature films or films made for television is that
advertisements must be broadcast within certain intervals according to article
11.3. This exception to the principle rule is systematically used by commercial
TV companies all around Europe who mutilate films by interrupting them with
advertisements.
In our opinion this loop-hole in the EU regulation is in conflict with the Moral
rights granted to authors in the Berne Convention, which assures that the author
shall have the right to object to any distortion, mutilation or other
modification of, or other derogatory action in relation to the work, which would
be prejudicial to his honour or reputation. It is quite obvious that breaks and
interruptions in a film are such mutilations of a work which constitutes a
violation of the Moral rights of film creators.
Few film creators and performers take legal action against broadcasters when
they interrupt their films with advertisements. Not because they do not care,
but because a lawsuit is always inconvenient and can be very costly in terms of
time and money. However, two Swedish film creators, Mr Vilgot Sjöman and Mr
Claes Eriksson have recently, with the support from KLYS, gone to court to try
if TV4 (the biggest private TV company in Sweden) has infringed their Moral
rights to their films (‘Alfred’ and ‘Hajen som visste för mycket’) by inserting
advertisement interruptions in them. According to the judgement of the City
Court of Stockholm on the 20th December 2004 commercial breaks in these two
films do constitute a violation of the Moral rights of the filmmakers. (TV4 has
appealed against the judgement and the legal process will continue in the
Stockholm Court of appeal.) KLYS’ strong belief is that this important judgement
must be taken into account when reviewing the TV Directive and its provision on
advertisement interruptions.
Until 1 April 2002, the Swedish Radio and Television Act totally prohibited
commercial breaks during the broadcast of films or programmes with respect to
the audience and to the moral rights of filmmakers. Despite strong protests from
the organisations of Swedish authors and performers as well as individual
authors and performers, the Swedish Parliament implemented article 11.3 of the
TV-Directive, which allows advertisement interruptions in films within certain
intervals, in the Swedish Radio and Television Act. The reason for this change
is partly the stiff competition from satellite transmissions to Sweden from
Swedish broadcasters domiciled in other countries within the EU, who are not
bound by Swedish law, and partly the way that the Swedish commercial TV company
TV4 skirted the prohibition by interrupting films or programmes with news
summaries and other short programmes surrounded by advertisements. Since the
amendments were introduced in the Swedish Radio and Television Act TV4 has
systematically used the new possibility to mutilate films by interrupting them
with advertisements.
It is our considered opinion that EU regulation (and national legislation in
European countries) should clearly stipulate that films must be broadcast in the
version that the authors have approved. Now that the TV Directive is being
revised, it is high time to protect the Moral rights of the creative people
involved in the making of films without whose work there would be little to
broadcast. Adding a clear stipulation that advertisements and other programmes
may not be inserted into any feature film, documentary or film made for
television is of greatest importance for television viewers all over Europe as
well as for
authors, performers and other artists who are taking part in the creation of
films. An added advantage is that such a stipulation would render pointless the
argument about reducing competition.
To conclude, KLYS is convinced that Moral rights must be better protected in the
future TV-Directive. The artistic authors and performers of films shall have the
right to have their work exhibited in the form in which it was originally
created.
Please feel free to contact the KLYS office if you have inquiries on this matter.
KLYS’ coordinator/ legal adviser Ulrica Källén or the president of KLYS mr Peter
Curman can be reached by e-mail: council@klys.se, phone: 0046 (0) 8 – 667 88 90,
fax: 0046 (0) 8 – 667 88 11 Address: KLYS, Industrigatan 2 A, 10 tr, 112 46
Stockholm, Sweden
You can also read more about the Swedish legal process on commercial breaks in
films on our website www.klys.se
Yours sincerely,
The Swedish Writers Union The Swedish Association of Stage and Screen Directors
The Swedish Playwrights’ Union The Independent Filmmakers’ Union of Sweden
The Swedish Photographers’ Union The Swedish Union of Theatrical Employees
The Swedish National Artists’ Organization The Swedish Directors
The Swedish Association of Authors of Educational Material
The Association of Swedish Illustrators
The Swedish Association of Craft and Design
The Swedish Union of Architects
Society of Swedish Composers
The Swedish Society of Popular Music Composers
The Swedish Federation of Professional Musicians
The Swedish Musicians Union
The Swedish Union for Clerical and Technical Employees in Industry