IRIS Plus 2000-2: The Electronic Rights War

Author: Bernt Hugenholtz & Annemique de Kroon, Institute for Information Law, University of Amsterdam

Published: 01/04/2000

"New technologies breathe new value into old content." The history of the media provides many illustrations of this simple truism. The breakthrough of television broadcasting in the 1950's and 1960's created huge secondary markets for existing cinematographic works. The proliferation of video recorders in the 1980's gave new life to popular television programs (e.g. Monty Python's Flying Circus), and further increased the commercial life-span of movies, new and old. With the introduction of each new medium, a new shackle is added to the existing "chain of exploitation". For a major film this chain will typically comprise cinema distribution, subscriber and hotel television, video release and rental, primary broadcast television, second-run broadcast television ("syndication"), cable retransmission, et cetera. Increasingly, successful films are also "serialised" (adapted for television), "novelised" (transformed into  novels) or "theatricised" (turned into plays). In addition, film characters or props (e.g. the legendary Batmobile) are subjected to all sorts of merchandising.

In the digital revolution that is currently taking place, history repeats itself again. Authors, producers, publishers and broadcasters are discovering, as they  did in "analogue" times, that existing "content" can be put to new, sometimes profitable secondary uses. Archived television news items may serve as input to multimedia encyclopedias; film clips may become part of computer games or educational software; newspaper articles may be republished on web sites, or archived on commercial CD-ROMs.

Not surprisingly, the rapidly-emerging market for secondary electronic uses of existing works of authorship has led to disputes over the ownership of so-called "electronic rights". Who owns the rights to reuse in electronic form an article originally written for a newspaper; a television program originally produced for broadcast television; or a film originally made for the screen? Is it the journalist or the newspaper publisher; the television producer or the broadcasting company; the film producer or the distributor? In recent years, a number of disputes over the ownership of electronic rights, mostly involving the works of newspaper journalists, have been decided by the courts. This article provides an overview of the most interesting case law to emerge from Europe and the United States. Some of the cases have been previously reported, in summary form, in this journal; others have only recently surfaced.