Hospitals
& Asylums
Alliance of Motion Picture and Television Producers v. Writers Guild of America HA-30-11-07
The Producer’s Comprehensive Proposal to the Writer’s Guild of
America West and East of October 25, 2007 requires technical editing, DVD residuals
must double, Internet and new media sales should offer high residuals of 2.4%
to avoid future conflict and authors must be entitled to a small residual from
advertising revenues to improve collaboration.
Furthermore, the motion picture and television industry must unite with
their writers and actors unions to transfer section 406 of the WIPO Copyright and Performances
and Phonograms Treaties Implementation Act of 1998 Pub.
L. No. 105-304, 112 Stat. 2860 that was improperly codified as a seizure to
a new Chapter 14 of Title
17 Copyright with or without more regulation of the industry. Since 2000, media conglomerate revenue
from entertainment segments has increased 51% from $63 billion to $95
billion. Over the same period of time,
writer earnings and residuals have increased only 20% from $1.1 billion to $1.3
billion. Between 2005 and 2006 writers
actually saw a decline in their income, only the highest-paid 25%, saw a 1.7%
rise in earnings for those at the 75th percentile to $253,377. Earnings trends
for other groups softened somewhat with the figure for the 95th percentile
sliding 2.3% to $665,000; the 50th percentile was off 2.6% to $104,750; and the
25th percentile fell 1.7% to $37,777.
Producers are doing too well to deny their author’s their rights and the
contract is so authoritarian they have only themselves to blame for the
strike. Having reassured producers of
tax breaks for any actual losses they might suffer everyone should go back to
work united by the legislative purpose of equal protection of the law.
To direct the technical editing we must begin by repealing
the equal rights in discrimination at all of section 6 Crediting Fees/Program
Fees and section 7 Appendix A. Further sections will need to be renumbered
accordingly however in this guiding paragraph they shall be referred to as
is. Section 11 Residual Payments for
Theatrical and Motion Pictures needs to be rewritten. At (B) the residual rate
for DVDs shall double. At (C) the residual rate for Internet and New media
shall be 2.4%. At (D) Confirm with WGA that, applicable to Universal only, under
Article 15.A., no compensation is due for the exhibition on free television of
any theatrical motion picture, the principal photography of which commenced
prior to June 13, 1960. Repeal Section
22 Article 48 Writer’s Participation in Production Process. Repeal section 26
Product Made for New Media. Repeal section 27 Promotional Uses. Repeal section
28 Withdrawal/Rejection. Repeal concluding clause, “Any of the Guilds’
proposals not mentioned herein are rejected”.
Transfer section 23 Grievances and Arbitration to the end of the
Contract to give the semblance of an alternative dispute resolution mechanism
guaranteeing individuals the safety to voice to redress their own
grievances. Having performed these six
repeals, three amendments and one transfer the Comprehensive Proposal would be
a surefire hit with Guild and the strike would break.
Works Cited
1. Addison, John
T.; Belfield, Clive R. Union Voice. Chapter 8: What Do Unions Do? In
Bennet and Kaufman ed. Transaction Publishers. New Brunswick. 2006. pgs.
238-274
2. Alliance of
Motion Picture and Television Producers (AMPTP)
3. AMPTP Sideletter
on Literary Material Written for Programs Made for the Internet.
4. Art. I
Section 8 Clause 8 of the US Constitution Intellectual Property Clause
5. Author’s Guild. Author’s Guild
Sues Google, Citing Massive Copyright Infringement. September 20,
2005
6.
Bennet, James T.; Kaufman, Bruce E. What Do Unions Do?: A Twenty Year
Perspective. Transaction Publishers. New Brunswick. 2006
7. Berne Convention
for the Protection of Literary and Artistic Works of
September 9, 1886, completed at PARIS on May 4, 1896, revised
at BERLIN on November 13, 1908, completed at
BERNE on March 20, 1914, revised at
ROME on June 2, 1928, at BRUSSELS on June 26, 1948, at
STOCKHOLM on July 14, 1967, and at PARIS
on July 24, 1971, and amended on September 28, 1979
8. Berne Convention
Implementation Act of 1988 in Appendix I of Title 17 as maintained by the US
Copyright Office
9. Blanchflower, David G.;
Bryson, Alex. What Effet Do Unions Have on Wages Now and Would Freeman and
Medoff Be Surprised? Chapter 4: In Bennet and 10. Kaufman ed. Transaction
Publishers. New Brunswick. 2006. pgs. 79-113
11. Budd, John W. The Effect of
Unions on Employee Benefits and Non-Wage Compensation: Monopoly Power, Collective
Voice and Facilitation. Chapter 6:
12. What Do Unions Do? In Bennet and Kaufman ed. Transaction
Publishers. New Brunswick. 2006. pgs. 160-192
13. Card, David; Lemieux, Thomas;
Riddell, W. Craig. Unions and Wage Inequality. Chapter 5: What Do Unions Do? In Bennet and Kaufman ed. Transaction
Publishers. New Brunswick. 2006. pgs. 114-159
14. Chao
v. ULLICO Civil Action Number 1:07-cv-02089
15. Cognis Corporation v. United Steel Workers of America 2007-Ohio-1489.
March 30, 2007
16.
Commons, John R. Labor and Administration . New York. MacMillan. 1913
17. Counter, Nick. Can the Strike be Settled? Cut the Theatrics Say the Producers. Los Angeles Times. November 17, 2007
18. Duration of copyrighted Works created on or after January 1, 1978 17USC(3)§ 302
19. Eldred v. Ashcroft. As noted in
the Brief of Amici Curie from the Association of American Publishers et al. No. 01-618.
June 8, 2002
20.
Flanagan, Robert J. Has Management Strangled US Unions. Chapter 15: What
Do Unions Do? In Bennet and Kaufman ed. Transaction Publishers. New Brunswick.
2006. pgs. 459-492
21.
Freeman, Richard; Medoff, James. What Do Unions Do? New York. Basic Books. 1984
22.
Freeman, Richard B. The 2004 M-Brane Stringtwister Edition. Chapter 20: What
Do Unions Do? In Bennet and Kaufman ed. Transaction Publishers. New Brunswick.
2006. pgs. 607-636
23.
Friedman, Milton. Some Comments on the Significance for Labor Unions on
Economic Policy. In David McCord Wright, ed. The impact of the Union. New York.
Kelley and Millman. 1956
29.
Hirsch, Barry T. What Do Unions Do for Economic Performance? Chapter 7: What Do Unions Do? In Bennet and
Kaufman ed. Transaction
Publishers. New Brunswick. 2006.
pgs. 193-237
30. In re: $0.50 United
Food and Commercial Workers UFCW 1099 v. Kroger Company HA-1-11-07
31. International Covenant of
Economic, Social and Cultural Rights. 16 December 1966
32. International Covenant on
Civil and Political Rights (ICCPR) December 16, 1966
33. Kaufman, Bruce E. What Do
Unions Do? Evaluation and Commentary. Chapter 17: What Do Unions Do? In Bennet and Kaufman ed. Transaction
Publishers. New Brunswick. 2006. pgs. 520-562
34. Krugman, Paul. The Conscience of a Liberal. W.W. Norton & Company. New York. 2007
35. Lawless, Jill. European Writers Support US Strike. November 28, 2007
36. Masters, Marick F.; Delaney, John T. Organized Labor’s
Political Scorecard. Chapter 16: What Do Unions Do? In Bennet and Kaufman ed. Transaction
Publishers. New
Brunswick. 2006. pgs. 492-519
37. Mitchell, Daniel J.B.; Erickson, Christopher L.
De-Unionization and Macro Performance: What Freeman and Medoff Didn’t Do. Chapter 12: What Do Unions Do? In Bennet and
Kaufman ed. Transaction Publishers. New Brunswick. 2006
pgs. 373-400
38. McNary, Dave. Pay for writers drops in '06: Slip due to
3.2% decrease in compensation. Variety, Reed Business
Information, a division of Reed Elsevier, Inc. July 9, 2007
39. National Academy
of Science’s Institute of Medicine. To Err is Human. 2000
40. Pencavel, John Unionism
Viewed Internationally. Chapter 14: What Do Unions Do? In Bennet and Kaufman ed. Transaction
Publishers. New
Brunswick. 2006. pgs. 423-458
41. Rosenthal, Phil. Democrats
Walk a Fine Line in Writer’s Strike. Chicago Tribune. November 25, 2007
42. Producer’s Comprehensive Proposal to the Writer’s Guild of
America West and East October 25, 2007
43. Sanders, Tony J. Hospitals & Asylums Book Proposal HA-24-8-07
44. Sonny Bono
Copyright Term Extension Act Pub. L. No. 105-298, 112 Stat. 2827.
1998
45. Sleigh, Stephen
R. A Unionist’s Perspective. Chapter 19: What Do Unions Do? In Bennet and Kaufman ed. Transaction
Publishers. New Brunswick. 2006. pgs. 589-606
46. Slichter, Sumner H. Union Policies and Industrial
Management. Washington DC. Brookings Institution. 1941
47. State Employment Relations
Board v. Queen City Lodge No. 69, Fraternal Order of Police Ohio 1st
App. 2007-Ohio-5471.
October 26, 2007
48. State ex rel Anthony J.
Celebrezze v. Gibbs (1991), 60 Ohio St.3d 69, 75, 573 N.E.2d 62
49. U.S. Department
of Labor’s Office of Labor-Management Standards announces 16 indictments, 5
convictions for union embezzlement in October 11/08/2007
50. Universal
Declaration of Human Rights. December
10, 1948
51. Verrier, Richard; Change, Andres. Writers strike could
cost $21.3 million a day. Los Angeles Times, November 21, 2007
52. Wagner Act
53. Wikipedia. Writer’s Guild of
America Strike 2007
54. WIPO
Copyright and Performances and Phonograms Treaties Implementation Act of 1998 Pub. L. No. 105-304, 112 Stat. 2860
55. WGA Contract 2007
Briefing
56. Writers Guild
of America, East (WGAE)
57. Writers Guild
of America, West (WGAW)
58. WGA 14 Picket
Locations
59. WGA Struck Companies List
1. The
Writers Guild of America Minimum Basic Agreement (MBA) expired on October 31,
2007. The provisions of the MBA cover approximately 12,000 current members of
the WGAW and the WGAE. The 2007 Writers Guild of America
strike is a strike by both the Writers Guild of America, East (WGAE) and the Writers Guild of America, west
(WGAW) that started on November 5, 2007. The
WGAE and WGAW are two labor unions that represent film, television and radio
writers working in the United States. The strike is against the Alliance of
Motion Picture and Television Producers (AMPTP),
a trade organization that represents the interests of American film and
television producers. More than a
thousand companies are struck. The primary issues involve the rates at
which the intellectual property rights of authors are purchased, including a
doubling of residual income from DVD sales, capitalization upon Internet sales,
author’s rights to advertising revenues, as well as $250,000 income cap for
health and pension benefits contributions outlined in the Comprehensive Package of October 25, 2007.
2. Motion picture
and television producers have denied the union contract because AMPTP claims
the writers are already well paid and that very few productions turn a profit,
at all, and most features operate on multi-million dollar deficits. In
television, some 85 - 90% of series fail before they can be syndicated.
The average deficit, production
costs less license fee, for the first season of a one-hour series is $26.4 -
$33 million and is $8.8 - $15.4 million for a half-hour series. The WGA’s 4,434 working members make an
average of $200,000 per year. Writers are also demanding a percentage of the
advertising revenue earned by the networks from ad-supported streaming the
WGA’s contract is not with networks, it is with producers, who receive no
proceeds from these advertisements, just as they receive none of the revenue
achieved by networks through commercial television. It’s the producers who
shoulder all the risk in a business in which most motion pictures lose money,
and the vast majority of television shows either never get past the pilot
episode or never achieve profitability. Regardless of whether a show or a movie
is a hit or a flop, the writer is paid.
3. Galvanized by
the refusal to approve their contract, members of the Writers Guild of America,
West and Writers Guild of America, East refused to go to work and staged the
largest action in the Guild's 74-year history. On Monday, November 5 at 12:01
am, more than 3,000 WGAW members walked picket lines throughout the day at 14 locations and
demanded that the Companies bargain fairly with writers. By Tuesday, the number
had swelled to 3,200. Most TV shows are filmed in L.A. If the strike continues
into next month, virtually all of the 44 one-hour dramas and 21 situation
comedies that are shot in Los Angeles will stop production entirely as the
shows run out of fresh scripts to keep crews filming, industry officials say.
That translates into a loss of 15,000 jobs and $21.3 million a day in direct
spending (Verrier & Change 2007). Two opinion polls have been conducted to
gauge the public's response to the strike. One national survey conducted by
Pepperdine University found that 84%, or more than four out of five Americans,
were aware that the strike was in progress. Nearly two-thirds of the American
public tends to side with the writers, one third are unsure, and only four
percent sympathize with the AMPTP. A second regional poll conducted by Survey
USA of Los Angeles residents showed that eight percent supported the studios
with sixty-nine percent supporting the writers (Wikipedia 2007). On late November 16, 2007, both the WGA and
the AMPTP made the following announcement: "Leaders from the WGA and the
AMPTP have mutually agreed to resume formal negotiations on November
26". So far no progress has been
made. Strikers are willing to settle
but are also willing to continue their strike if their demands are not met.
4. Numerous politicians, such a presidential candidate John Edwards and
Rev. Jesse Jackson and actors have joined the picketers. Democratic presidential hopeful John
Edwards and his wife, Elizabeth, are canceling a scheduled appearance on “The
View” in support of the Writers Guild of America strike. So is Michelle Obama,
wife of Barack, Edwards’ rival for the Democratic nomination. If CBS News writers, who last week approved
a strike after going without a contract for 2 1/2 years, actually walk, several
candidates, including front-runners Edwards, Obama and Hillary Clinton, have
said they will sit out that network’s Democratic debate, set for Dec. 10,
rather than cross a picket line (Rosenthal 2007). Several dozen writers
rallied in front of the headquarters of Britain's main union federation holding
red-and-black placards saying: "We Support the Writers Guild of
America." In Paris, a few dozen
screenwriters and others joined a march from the Opera Garnier to the Trocadero
Plaza across from the Eiffel Tower in support of their American counterparts.
They held up signs saying "French Screenwriters Are Angry" and
"Our Creative Work is Under Threat." In Berlin, about 30
scriptwriters and actors gathered in front of the Brandenburg Gate. Australian scriptwriters also supported
their U.S. counterparts, with Australian Writers Guild members rallying in
Sydney, Brisbane, Perth and Adelaide. Speakers at the 50-strong Sydney rally
included Oscar-nominated screenwriter Jan Sardi, "Shine" and
"The Notebook", and Craig Pearce, "Strictly Ballroom,"
"Moulin Rouge", (Lawless 2007).
5. The underlying reason for the strike is
that Hollywood scribes saw Guild-covered earnings slide 1.5% last year to
$905.8 million in the first decline in five years, due to a 3.2% decrease in
compensation for feature writing. The WGA West’s annual report to its 8,000
members, noted that 2006 earnings figure is still higher than any other year
except 2005. Be-ginning in 2002, earnings had risen by 3.8%, 4.1%, 2.2% and
5.8%. In an indication that studios are holding the line on screenwriters,
feature pay declined to $437.9 million after rising 3.9% last year. The number
of writers employed on features rose by 37 to 1,935 -- a 1.7% gain. Feature
writers also saw a 6% slide in residuals last year to $121.3 million -- mostly
from a 13% fall in video/DVD residuals to $43.5 million. Pay TV residuals
declined 6% to $38.9 million. The WGA Contract 2007
Briefing argues that since 2000, Media
Conglomerate Revenue from Entertainment Segments has increased 51% from $63
billion to $95 billion. Over the same
period of time, Writer Earnings and Residuals have increased only 20% from $1.1
billion to $1.3 billion.
Entertainment Segment Revenue and
Writer Earnings and
Residuals 2000-2006
(Source: WGA Analysis of SEC filings and
Company Annual Reports)
6. TV
writing saw slightly brighter results as earnings held fairly steady at $464.6
million -- a 0.1% hike amounting to $400,000 higher than 2005. It was the fifth
all-time high in a row but the gain was miniscule compared with the previous
hikes of 1.5%, 2.9%, 3.8% and 7.6%. The number of TV writers employed edged up
for the third year in a row with a 0.8% gain to 3,353 -- 25 higher than in
2005. TV residuals shot up 9% to $130.7 million, thanks to an 11% gain in
foreign free TV to $21 million due to a greater volume of programs released
into international distribution; 17% in basic cable to $33.1 million and 30% in
home-videos to $13.1 million. Residuals from free TV reuse edged up 2% to $63.2
million due to gains in network overnight and daytime reuse. The biggest gains for a group of writers
came for the highest-paid 25%, who saw a 1.7% rise in earnings for those at the
75th percentile to $253,377. Earnings trends for other groups softened somewhat
with the figure for the 95th percentile sliding 2.3% to $665,000; the 50th
percentile was off 2.6% to $104,750; and the 25th percentile fell 1.7% to $37,777.
7.
Anticipating a strike WGA West’s net assets rose $1.7 million to $32.3 million
and has combined total of $12.2 million in its Strike and Good & Welfare
funds. The Guild’s been required under its constitution since 1992 to keep $6
million in its strike fund. The WGA West said it generated a net surplus of
$1.7 million for the fiscal year ended March 31, compared with a deficit of
$202,611 in fiscal 2006. Revenues edged down to $22.3 million, down $100,000;
investment income rose to $2.9 million from $1.9 million; and expenditures
declined by $900,000 due to lower costs in the WGA Awards show and reduced
spending on professional fees. Striking workers are not paid, nor are their
health and pension payments paid.
Article IX, Section B.6 of the Guild's Constitution provides for a
Strike Fund to be made available to members facing hardship in the event of a
work stoppage and the Strike Fund Committee to administer the Strike Fund. Members who meet the following criteria will
be eligible to apply for Strike Fund assistance in the form of interest-free
loans.
8. From 1900 to mid-century union density slowly and irregularly moved on an upward trend starting at 7 percent in 1900 and reaching a peak of 33 percent in 1953. Under the New Deal unions surged in both membership and power. Union membership tripled from 1933 to 1938 then doubled again by 1947. At the end of WWII more than a third of non-farm workers were members of unions (Krugman 2007: 49). Since then density has retraced much of its path, moving steadily downward. Falling rapidly from 24 percent in 1977 to 13 percent in 2002 until in 2005 it stood at 12 percent. Private sector density peaked in the United States in the early 1950s at 36 percent and then fell steadily and sharply until in 2005 it stood at only 8 percent in 1983. Density remains higher in manufacturing than in services. The opposite trend occurred in the public sector where union density rose more than threefold between 1960 and 1980 and then remained in the 35 to 40 percent range from the mid 1980s to the present time. By 2002 46 percent of all union members were in the public sector compared with 32.5 percent in 1983 (Blanchflower & Bryson 2006: 82).
9. US unions are associated with slower employment growth but exhibit little or no difference in rates of business failure or survival. By 2002 traditional collective bargaining serves few workers in the US private sector only one in twelve (8.6 percent) are union members and one in eleven (9.3 percent) are covered by a collective bargaining agreement. In the United States, the average “raw” union-nonunion wage gap without control for skill or other attribute is about 20 percent whereas the union nonunion wage gap falls to 15 percent when skill characteristics are held constant. (Pencavel 2006: 453). The de-industrialization of the United States was in fact a de-unionization (Hirsch 2006: 217-218). Unionism on net probably raises social efficiency and recent trends have brought the level of union density below the optimal level wherefore they advocate revision in the nation’s labor laws in order to foster greater unionization in the American economy (Freeman & Medoff 1984: 1).
10. The two countries with the largest declines in unionization, the United States and United Kingdom, also experienced the biggest increases in wage inequality (Card, Lemiex, Riddell 2006: 114). The average income, the total income of the nation, divided by the number of people, has gone up substantially since 1973, the last year of the great boom. We are after all a more productive people. Average income however doesn’t tell you how most people are doing. Median income, the income of a person richer than half the population but poorer than the other half, depending on which definition used has either risen modestly or actually declined (Krugman 2007:125). Postwar US economic history can be divided into three eras, the postwar boom, from 1947 to 1973, the time of troubles, when oil crises and stagflation wracked the US economy, from 1973 to 1980 and the modern era of reasonable growth with rising inequality from 1980 until the present. During the postwar boom the real income of the typical family roughly doubled, from about $22,000 in today’s prices to $44,000. That’s a growth rate of 2.7 percent per year. The time of troubles temporarily brought growth in median income to a halt until inflation was brought under control. Since 1980 median family income has risen only about 0.7 percent a year. Even during the best of times the Reagan era “morning in America” expansion from 1982 to 1989 and Clinton era boom from 1993 to 2000 family income grew more slowly than it did for a full generation after WWII. (Krugman 2007: 54-55). According to a Federal Reserve study in the 1970s chief executives at 102 major companies were paid on average about $1.2 million in today’s dollars. Not hardship pay it was only a bit more than CEOs were paid in the 1930s and only 40 times what the average full time worker in the US was paid. By the early years of the 21st century CEO pay averaged more than $9 million a year, 367 times the pay of the average worker (Krugman 2007: 142).
11. In
the original What Do Unions Do? by Freeman and Medoff in 1984 economists and
the public were found to hold two different conceptions of unions the negative
view they call the “monopoly face” of unions, the positive they call the
“collective voice/institutional response” face. Unions use monopoly power to raise wages above competitive
levels. Workers have two ways of
dealing with workplace problems, the exit option of quitting and the “voice”
option of speaking up to management. In
the second What Do Unions Do? by Bennett and Kaufman in 2006 a third concept
called monopsony is introduced to cope with diminished union density and
increasing wage inequality between workers and managers. The union monopoly vs.
employer monopsony idea suggest that a counteracting union monopoly effect
could raise wages without necessarily decreasing employment. Monopsony power
provides that a firm acting in a free market which sets a relatively high wage
will experience low turnover and a high absolute inflow of quality workers from
the outside labor market while a firm that sets low wages will experience low
inflow of quality workers and high turnover rates. A nonunion firm will usually have monopsony power. Monopsony might prevail in nonunion labor
markets, particularly in the context of declining union threat witnessed in the
past 30 years, however a powerful union entering the scene can raise wages to a
higher level. Monospsony suggests a
downward pressure on wages and a shift of income distribution from labor to
capital (Mitchell & Erickson 2006: 385-388 & 391).
12. In
their classic article on the “Two Faces of Unionism” and their subsequent book,
What Do Union Do? Freeman and Medoff (1979 and 1984 respectively) emphasized
the positive voice face of unions in contrast to the conventional monopoly face
that emphasized rent extraction. Under
its monopoly face, unions can have negative effects on resource allocation,
productivity and social welfare by fostering strikes and restrictive work
practices as well as by raising wages above the competitive norm. In contrast, by serving as the institutional
embodiment of voice at the workplace, unions could have positive effects on
productivity, cost and social welfare.
This could occur through various voice mechanisms: articulating the
preferences and internal trade offs of workers; improving communications
between workers and management; fostering due process and restricting the
capricious actions of managers; reducing quits and “shocking management into
more efficient work practices. Even in
the case of strikes, positive cathartic effects may ensue and pent-up
frustrations may be released (Gunderson 2006: 401).
13. The
purpose of unions is to further the economic interests of its members by
negotiating on their behalf over terms and conditions of employment. People join unions both to rectify
dissatisfying circumstances and to increase the gains from employment. A pro-union vote is determined primarily by
job dissatisfaction and a belief that the union will be able to improve one’s
work life by ensuring higher wages and benefits, job security and protection
against arbitrary and unjust treatment.
Union jobs entail social benefits in the form of a system of due process
and participation in decisions about employment and working conditions. Attitude surveys of American workers have
shown repeatedly that union workers report less overall job satisfaction than
nonunion workers, despite lower job satisfaction however union workers are less
likely to quit (Hammer & Avgar 2006: 347).
14. The right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work. Collective bargaining has two principle aspects. First, it is a method of introducing civil rights into industry, that is requiring that management be conducted by rule rather than by arbitrary decision. Second, it is a method of price fixing of labor. Collective bargaining is a form of countervailing power that balanced the wage determination process, levels the playing field, and thereby promotes improved economic efficiency and social welfare. In this role union wage increase are not monopoly creating but monopsony reducing where monopsony is defined very broadly to include any factor that limits competition for labor. (Kaufman 2006: 525)
15. Collective bargaining is not simply an instrument for pursuing external ends, whether these be mundane monetary gains or the erection of a private rule of law to protect dignity of the worker in the face of managerial authority. Rather, collective bargaining is intrinsically valuable as an experience in self-government. It is the mode in which employees participate in setting the terms and conditions of employment, rather than simply accepting what their employer chooses to give them. Collective bargaining is the procedure through which the views of the workers are made known, expressed through representatives chosen by them, not through representatives selected or nominated or approved by employers. More than that, it is a procedure through which terms and conditions of employment may be settled by negotiations between an employer and his employees on the basis of a comparative equality of bargaining strength Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 June 8.
6. Industrial Democracy: This is the most elusive aspect of the legislative purpose, although most commentators indicate that a concept of industrial democracy is embedded in the statutory scheme, or at the least was one of the articulated goals of the sponsors of the Act. Senator Wagner frequently sounded the industrial democracy theme in ringing notes, and scholars have subsequently seen in collective bargaining “the means of establishing industrial democracy, . . . the means of providing for the workers’ lives in industry the sense of worth, of freedom, and of participation that democratic government promises them as citizens”.
18.
Everyone knows that unions raise wages the questions are how much, under what
conditions and with what effects on the overall performance of the economy
(Freeman & Medoff 1984: 43)? Studies show that the union wage effect is on
average 10-15% and in the 1970s it was 20-30% (Blanchflower & Bryson 2006:
80). Workplaces with at least 50
percent union members have total expenditures on non-mandatory benefits items
25 to 35 percent higher than similar nonunion workplaces (Budd 2006: 165). Using standard theory, a wage gain can
decrease capital if scale effects exceed substitution effects, but the
capital-labor ratio unambiguously rises.
If unions tax capital to facilitate wage gains there is no presumption
that factor mix is either more or less capital intensive in union firms (Hirsch
2006: 229) Taking into consideration the lessening union density if unions raise wage rates in a particular
occupation or industry, they necessarily make the amount of employment
available in the occupation or industry less than it otherwise would be. Just as any higher price cuts down the
amount purchased the effect of union wage gain is to limit the amount of labor
the firm can afford (Friedman 1962: 124).
In general unions tend to increase productivity
but almost always lower profitability.
Unions are beneficial to organized workers and are almost always
beneficial to the economy but harmful to the bottom line of company balance
sheets (Hirsch 2006: 194).
19. Other
things being equal the typical unionized firm has 6 percent lower capital
investment than its observationally equivalent nonunion counterpart. The average unionized firm has 15 percent
lower research and development. In sum
the vote for union certification is likened to a 30 percentage point increase
in the corporate income tax (Hirsch 2006: 216). Union bargaining guarantees that the firm listens to workers
concerns and that the firm does not take the lion’s share of the gains.
(Freeman 2006: 609). Wages and other
terms and conditions of employment in unionized firms are determined through a
sequential step bargaining process with the threat and occasional use of a
strike. Without strike costs and other
costs of disagreement the firm and union have no motivation to compromise and
reach an agreement. When the costs of
disagreement are introduced both sides have to calculate the benefits and costs
of intransigence. A strike occurs and
lasts until an agreement is reached or one or both the parties exits the
relationship.
20.
Strikes are the clearest form of union voice at the workplace, at its loudest
and most muscle flexing form. In a
strike the union flexes their monopoly power as the exclusive bargaining agent,
immune from anti-trust regulation, imposing costs on upstream suppliers and
downstream customers as well as the struck employers. Strikes can jeopardize the competitiveness of a country and deter
inward foreign investment as well as leaving a legacy of scarred relationships between
the parties after they return to work. The right to strike in the publics
sector is highly restricted. Such
strikes are regards as particularly invidious because services are often
regarded as “essential” and consumers usually have few alternatives and
consumers generally keep on paying through taxes although services are not
provided during the strike. Overall
strikes are declining in both private and public sectors (Gunderson 2006:
407-409).
21. Art. 8 of the International
Covenant of Economic, Social and Cultural Rights (ICESCR) of 16
December 1966 provides for the right of everyone to form and join
trade unions of their choice, for the promotion and protection of their
economic and social interests through collective bargaining. Art. 8(1)(d) provides for the right to
strike. Unions must be careful to exercise the right to strike in conformity with the laws of
country for they will be supervised by the armed forces. For their part, employers must not disregard the terms of their
collective bargaining agreements whenever they find it convenient to do
so. Employers should honor their
contractual obligations to their employees just as employees must honor their
contractual obligations to their employers pursuant to State Employment Relations Board v. Queen
City Lodge No. 69, Fraternal Order of Police Ohio 1st App. 2007-Ohio-5471
of October 26, 2007. An equitable
solution can be achieved as the $0.80 raise in the 11th hour
settlement of In re: $0.50 United Food and Commercial Workers
UFCW 1099 v. Kroger Company HA-1-11-07.
22. In State v. Local
Union 5760, United Steel Workers of America, the Ohio Supreme Court held
that a labor union may be liable for contempt of court based upon the
contemptuous acts of its union officials. In such case, the acts of such
officials are deemed to be acts of the union. For instance the U.S. Department of Labor’s Office of Labor-Management
Standards announced on November 8, 2007
16 indictments, 5 convictions for union embezzlement in October. Since fiscal
year 2001, OLMS investigations have yielded a total of 856 indictments with 806
convictions and court-ordered restitution of more than $102 million.” In
Cognis Corporation v. United Steel Workers of America 2007-Ohio-1489
of March 30, 2007 the Union was found in criminal contempt for violating the
terms of their agreement regarding picketing, that caused serious damages
including an explosion. Decisions
in contempt will not be reversed on appeal absent an abuse of discretion State ex rel Celebrezze v. Gibbs (1991), 60 Ohio St.3d 69, 75, 573 N.E.2d
62.
23. Management opposition policies to union organizing
typically manifests in the form of preemptive authorization of union wages and
working conditions. Under US labor this
is only illegal after an organizing campaign beings. The federal judiciary has increasingly permitted employers to
bring tort actions under state law against alleged defamatory claims made
during union organizing campaigns and alleged violence during economic
strikes. Since the 1970s employers have
increasing refused to accept the finality of the Nation Labor Review Board’s
representation decisions and labor relations policy has drifted back to the
courts. Sustained management opposition to unions and collective bargaining has
been largely an America phenomenon that has increased in the past 20 years
(Flanagan 2006: 472 & 488). Some
managements will adjust to the union and turn unionism into a positive force at
the workplace, others will not. Over
the long run, those that respond positively will prosper while those that do
not will suffer in the market place.
24. By providing the worker with a voice mechanism the
union lowers quits. The key variable
signifying whether or not the individual will engage in voice or exit behavior
is loyalty. Collective voice through
the agency of a union outperforms individual activity. Unions collect information about the preferences
of all workers and aggregate them to determine the social demand for such
public goods. Section 8(a)(2) of the
Wagner Act prohibits employers from dominating or interfering with the
formation or administration or any labor organization or contributing financial
or other support to it, ruling out company unions (Addison & Belfield 2006:
240-241). Sumner Slichter (1941: 575,
579) argued, “The very fact that the workers have had an opportunity to
participate in determining their working conditions is in itself favorable to
efficiency. Efficiency depends upon
consent. Even though the specific rules
and policies adopted in particular instances may not be ideal, the process of
joint determination of working conditions at least offers the possibility of
achieving greater efficiency than could be obtained under rules and conditions
dictated by one side (Pencavel 2006: 449-450).
25. Let
us then begin debating the issues with that of the $225,000 - $250,000 or
$450,000-$500,000 for a group of three, annual income cap on pension and health
benefits payments. This should not be controversial
whereas the Labor Department just filed a lawsuit that alleges that Union Labor
Life violated ERISA when it failed to properly disclose its compensation and
receive approval from plan fiduciaries independent of Union Labor Life for
funds taken directly from the investment account, as well as payments received
from third-party borrowers, such as loan commitment fees, construction
administration fees and lender inspection fees. The insurer allegedly
kept, among other fees, millions of dollars from loan applicants who failed to
go forward with loans even though the plans assumed virtually all the risk of
funding those loans Chao v. ULLICO Civil Action Number 1:07-cv-02089. “Self-dealing by pension fiduciaries at the
expense of workers’ retirement plans cannot be tolerated,” said Secretary of
Labor Elaine L. Chao. “This $20 million settlement is a loud and clear message
to all plan fiduciaries that they will be held accountable when their actions
are detrimental to workers’ benefit plans.” The $250,000 cap should
help to reduce and eliminate abuse of funds by the union and health and pension
programs over which no allegations have surfaced. At (F) the Health Trustees
are specifically prohibited from diverting funds from salary increases.
26. It
was unions negotiating the government and big business that brought about the
introduction of health care insurance and pension benefits in the 1940s and
1950s and it was unions that set the standard for such benefits throughout the
next 40 years. Health insurance, along
with life and accident insurance account for 4 percent of total
compensation. Virtually every union
worker, 99 percent, was covered for health insurance, versus 70 percent of
nonunion workers. The current share of
health care expenditure is 9.1 percent of total labor cost goes to health
insurance. The rapid escalation of
health care cost to $5,267 per person in 2002 with annual increases in the
first five years of this decade averaging 14 percent is nearly double the cost
from 1999. While the United States
spends more on health care as percent of gross domestic product, nearly 15
percent in 2004 the US ranks thirty-seventh in the world in health outcomes
according to the WHO.
27. The
shortcomings were documented in a seminal study published in 2000 by the
National Academy of Science’s Institute of Medicine, to Err is Human raised
national awareness as to the shortcomings of our health delivery system. As
many as 98,000 Americans die per year due to preventable medical errors. More people die in a given as a result of
medical errors than from motor vehicle accidents, breast cancer or AIDS and
Medication errors alone cause as many deaths as all workplace related accidents
(Sleigh 2006: 595). Newer studies report the numbers to be much higher and no
one has yet taken more than an unpublished criminal responsibility for the
leading cause of death – bio-terrorism.
28. Art. 12 of the ICESCR provides for the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.
29. The
rest of the issues involve the intellectual property rights of authors are best
settled under the Berne Convention for the Protection of Literary and Artistic
Works of September 9, 1886,
completed at PARIS on May 4, 1896,
revised at BERLIN on November 13,
1908, completed at
BERNE on March 20, 1914, revised
at ROME on June 2, 1928, at
BRUSSELS on June 26, 1948, at STOCKHOLM on July 14, 1967, and at PARIS on July 24, 1971, and amended on September
28, 1979. The Berne Convention Implementation
Act of 1988 in Appendix
I of Title 17 as maintained
by the US Copyright Office provides in Section 2 and 3 that the Convention is
not self-executing under the Constitution and laws of the United States and the
obligations of the United States under the Berne Convention may be performed
only pursuant to appropriate domestic law.
30. The
issues for which we are searching for resolution from national legislation
under the guidance of the Berne Convention are, is it fair for authors to (1)
double their residual income from DVD sales, (2) to claim rights to income from
advertising revenues spent publicizing their works, (3) to claim rights to
Internet reproductions and streaming videos of their works. Cinematographic works are unfortunately lost
in the translation therefore to salvage employer/employee relationships
Congress shall take the blame for the disagreement that gave rise to a strike. Cinematographic work is too distinct from
other mediums and perhaps too charged to be buried in 17USC(1)§102(a)(3)&(6)
dramatic works,
including any accompanying music & motion pictures and other
audiovisual works. These negotiations shall therefore be the beginning of the
political activism bringing about a new set of laws, ie. Chapter, in harmony
with the Berne Convention in honor of the world famous motion pictures of
Hollywood.
31. The terms of protection granted by the Berne Convention shall be the life of the author and fifty years after his death under Art 7(1) however under clause 2 cinematographic works, such as we are dealing with in this case, enjoy much less frightening terms whereby the nation may provide for the term of protection to expire fifty years after the work has been made available to the public. The Sonny Bono Copyright Term Extension Act Pub. L. No. 105-298, 112 Stat. 2827 (1998) extended the term to 70 years after the author’s death. In Eldred v. Ashcroft. As noted in the Brief of Amici Curie from the Association of American Publishers et al. No. 01-618 of June 8, 2002 the Supreme Court extended the term of ownership of the copyright by the author to 50 years after death. Ruling upon this dispute it would seem the Court and AAP were not aware of the Sonny Bono Copyright Term Extension Act and that the Duration of copyrighted Works created on or after January 1, 1978 is therefore 70 years after the death of the author under 17USC(3)§302 irregardless of the media in which the work was produced.
32. Art. 14 bis of the Berne Convention provides that the
owner of copyright in a cinematographic work shall enjoy the same rights as the
author of an original work. Authors, if
they have undertaken to bring such contributions, may not, in the absence of
any contrary or special stipulation, object to the reproduction, distribution,
public performance, communication to the public by wire, broadcasting or any
other communication to the public, or to the subtitling or dubbing of texts, of
the work. Under Art. 9 authors have exclusive right to authorizing the
reproduction of their work in any manner or form. Art. 11 bis provides that authors of literary and artistic works
shall enjoy the exclusive right of authorizing the
broadcasting of their works or the communication thereof to the public by any
other means of wireless diffusion of signs, sounds or images; therefore they do
have the right to demand residuals from advertising. Negotiation of these
rights is a matter for national legislation that shall not in any circumstances be prejudicial to the moral
rights of the author, nor to his right to obtain equitable remuneration which,
in the absence of agreement, shall be fixed by competent authority. Under 17USC(2)§201(b) in the case of a work made for
hire, the employer or other person for whom the work was prepared is considered
the author for purposes of this title, and, unless the parties have expressly
agreed otherwise in a written instrument signed by them, owns all of the rights
comprised in the copyright.
33. The media is not unlimited in
the work they can produce. They are
restricted by public decency standards promulgated nationally by the FCC and
Art. 20 of the International Covenant on Civil and Political Rights (ICCPR) of December 16, 1966 that assures, 1. Any propaganda for war shall be prohibited by
law and 2. Any advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence shall be
prohibited by law. This provision is important because the show “24” was
removed after years of complaints regarding the advocacy of torture and
terrorist tactics by government agents.
The show furthermore infringed upon the copyright of this author of
Hospitals & Asylums, who drafted the Iraq Reconstruction Fund, the largest
reparation in the history of international law, for the people who invented the
24 hour day, and have been plagued with murder hire of a money laundry ever
since, in large part because of the media’s commercial sponsorship of bad
discipline regarding the use of armed force and the laws of war. As the author I never saw a penny and it is
doubtful that the Iraqis received more than termination letters regarding their
Oil for Food program assistance, some slave labor and brainwashed suicide
attackers.
34. While
there is considerable evidence that the violence is organized for hire by quasi
governmental agencies in the judiciary and health sector, working together, in
the US, and military and security contractors in Iraq, it is inconclusive and
there is certainly no justice to dismiss the inferior courts, anyway. The mass media must not weaken the peaceful
resolve of the civilians to avoid Rwandan or Yugoslavian style violence, with
irresponsible programming such as “24”.
We are thankful that broadcasters have decided to pull “24” after the
WGA Strike heightened public interest in motion picture and television
content. In the future screen writers
and producers must be more careful to uphold Art. 27 of the Universal
Declaration of Human Rights of December
10, 1948 that provides in clause (2) “Everyone has the right to the
protection of the moral and material interests resulting from any scientific,
literary or artistic production of which he is the author” so that moral
interests found to be not in line with Art. 20 of the ICCPR are censored from
the mass media and all claims arising there from expeditiously settled so that
all parties can return to gainful employment on socially responsible projects.
35. The Producer’s Comprehensive Proposal to the Writer’s Guild of America East and West is quite generous in regards to the regular purchase of rights to the works of authors under their contracts called, “upset price”. During the four year period since the release of a production if the writer desires to sell, license or otherwise dispose of any of the reserved rights, other than dramatic, theatrical or publication rights, the Company shall have a right of first refusal whereby if the Company within (7) days decides not to exercise the right of first refusal or fails to provide a written notice the writer is free to enter into agreement with the third party at (9)(A)(1) of pages 3&4 of the Comprehensive Package. To purchase rights to theatrical remakes and sequels Companies shall make an advance of $20,000 against the applicable amount ranging from $50,000 to $150,000 for productions with budgets less than $40 million to those more than $100 million at page 5 of the Comprehensive package.
36. The upset price for the work of writers, or teams of two, for network prime time dramatic programs, until 2011, varies on the length of time, from $9,783 for a 15 minute story to $111,316 for shows 90 minutes or longer at page 7 of the Comprehensive Package. The upset price for work other than prime time dramatic programs ranges from $6,315 for a 15 minute story to $78,876 for shows 90 minutes or longer at page 8. At pages 10 to 12 the high budget figure increases from $5 million to $25 million. The high budget cost for prime time network programs increases from $150,000 to $450,000 for shows 15 minutes or less to $4.5 million for shows more than 90 minutes with an additional $1.5 million for every 30 minutes additional to 120 minutes. High budget figure increases for non prime time shows range from an increase from $60,000 to $300,000 for shows 15 minutes or less to an increase from $450,000 to $2.5 million for shows from 90 to 120 minutes. There do not appear to be any disputes regarding the basic purchasing of rights from the author and the Comprehensive Package in fact seems quite generous for any author with steady work or scoring a high budget contract.
37. Under Art. II of the Appendix to the Berne Convention
pertaining to the right of translation authorizes the substitution for the
exclusive right of translation provided for in Article 8 a system of
non-exclusive and non-transferable licenses, granted by the competent
authority. Television motion pictures
remade by a foreign production company in a language other than English for
worldwide distribution on stations, including stations in the United
States. For any foreign remake format
sale, Company (or any affiliate Company) will pay to the WGA thirty percent
(30%) of the foreign remake format license fee paid to Company for each remade
episode of the series. Such payment shall be distributed by the WGA to the
writer(s) who received final writing credit and creators credits, when the
episode was originally produced at 16 on pages 12-15. This provision is enforced in the United States as Subject Matter
of Copyrights: National Origin in 17USC(1)§104(b)(1)
whereas on the date of
first publication, one or more of the authors is a national or domiciliary of
the United States, or is a national, domiciliary, or sovereign authority of a
treaty party, or is a stateless person, wherever that person may be
domiciled. Under Art. V of the Appendix
to the Bern Convention limitation of the right to translation and licensing
fees is generally granted to developing nations who make declaration that they
cannot afford such costs but would like to enjoy the benefits of translation
free of charge until such a time when they make the declaration that they are
not longer a developing nation.
38. The majority of the disagreement pertains to section (11) Residual Payments for Theatrical and Television Motion Pictures at page 10 of the Comprehensive Package. The entitlement of the authors of literary and artistic works to residuals/royalties for which they, and their estates, are entitled to a percentage of sales of the finished product for a period extending until 70 years after their death under 17USC(3)§302 as are the producers, to an undisclosed amount, who have purchased the nonexclusive license for the reproduction of the work by hiring the author under 17USC(2)§201(b). Clauses (A) & (E) are not being disputed. Clause A provides that for all terrestrial and satellite radio broadcasts of television motion pictures, the literary material for which was written either prior to or on or after November 1, 2007, the Company shall pay to the credited writer(s) one and two-tenths percent (1.2%) of Company’s receipts from licensing such rights, although the union might demand more. Clause E promises to revise Article 15.B.1.b.(2)(c) so that when a television motion picture is syndicated in markets representing 50% or fewer of United States television households, residuals shall be paid on the same basis as under Article 58 (i.e., a payment of 2% of gross receipts is due for television motion pictures produced on or after July 1, 1984 and 2.5% of gross receipts is due for television motion pictures produced prior to July 1, 1984.
39. Section 11
Clause (B) at page 10 Confirms that electronic sell-throughs for permanent
downloads of theatrical or television motion pictures (when all or
substantially all of the picture is included) are paid at the home video/DVD
formula. This clause does not provide
for a specific rate. This clause also
unfairly ties new media with tried and true money making medium of DVDs. The DVD formula is one of the most highly
contested issues of strike. In 1988, the Writer's Guild went on strike
over the home video market, which was then small and primarily consisted of
distribution via video tape. At that time, the entertainment companies argued
that home video was an "unproven" market, with an expensive delivery
channel (manufacturing VHS and Betamax tapes, and to a much smaller extent,
Laserdisc). Movies were selling in the range of between $40-$100 per tape, and
the writer's guild accepted a formula in which a writer would receive a small
(0.3%) percentage of the first million of reportable gross (and 0.36% after) of
each tape sold as a residual. WGA members claim that a writer's residuals, or
profits made from subsequent airings or purchases of a program, are a necessary
part of a writer's income that is typically relied upon during periods of
unemployment that are common in the writing industry. The WGA has requested a
doubling of the residual rate for DVD sales, which would result in a residual
of approximately eight cents (up from four cents) per DVD sold. Whereas the sum in question is so small
labor would not unduly infringe upon capital by doubling the residual rate of
DVD sales. Doubling the residual would make an insignificant dip in the balance
sheet of producers and greatly improve the job security and satisfaction of authors.
40.
Clause (C) of Section 11 promises to add a provision to the MBA stating that
there shall be no residual payments for the exhibition or distribution of
theatrical and television motion pictures, whether in whole or in part, in new
media (other than as set forth in the “Sideletter on Exhibition of Motion
Pictures Transmitted Via the Internet”). For this purpose, the term “new media”
means any digital distribution platform now known or which is hereafter
developed during the term of the 2007 Writers Guild of America Theatrical and
Television Basic Agreement, including, but not limited to, digital video on
demand, alternative digital broadcast channels, Internet exhibition, PDAs,
broadband and cell phones. Section 26 Product Made for New Media (P-2) at pages
17 & 18 the Comprehensive Proposal promises to Revise the “Sideletter on
Literary Material Written for Programs Made for the Internet” and must be
stricken in its entirety for the Contract to stand any chance of being approved
by the Guild. The Producers have
written in a biased arbitration system.
Section 26 and the final clause whereby all further proposals are
rejected, killed the Contract, no self respecting writer would expect the
reader to honor an agreement that so clearly directs the reader to reject the
proposal and go on strike.
41. In regards to Internet sales WGA has
proposed that writers receive 2.5% of distributor's gross for new-media sales
and distribution. The companies have thus far refused to address this proposal,
and have instead proposed that Internet sales follow the same formula as DVD
sales. With regard to streaming, the companies have proposed that so-called
"promotional" streaming—including the streaming of a program in its
entirety and even for profit via advertising or other means— does not entitle
residuals to the writer or writers whatsoever.
Both of these proposals have been rejected by the WGA and are cited as
evidence that the studios "(want) to shut down rather than reaching a fair
deal. The paltry video residuals have
already been the source of so much grief for the industy, inspiring not one but
two writer’s strikes by the WGA whose writers have been aggressive enough to
ensure that they be in the credits but cannot seem to ensure that they are
given enough. Royalties, or residuals
as the motion picture and television industry so disrespectfully calls the
exclusive right of authors to their respective writings, promoted in Art. I
Sec. 8 Clause 8 of the US Constitution that similarly confers no such titles of
nobility upon its citizens, are needed so that the body politic is not
separated from the mind that created it.
Royalties are a fundamental part of democratic society that is
frequently crushed by the people who enjoy success from the other aspects of
exposure to the masses by means of the democracy as written by the Founding
Fathers and Mothers. Whereas Internet
and new media sales are not predictable they must be separated from DVD
residuals to avoid conflict in the future.
A 2.4% rate for new media residuals would be fair.
42. There have been a considerable
number of copyright infringement complaints in regards to the digitalization of
copyrighted works from library archives as noted in the way the Author’s Guild
Sued Google citing massive copyright infringement as reported on September 20,
2005. In 2001, publishing giant Random House sued
Rosetta Books, a start-up electronic publisher, for licensing and publishing
e-book editions of works by William Styron, Kurt Vonnegut, Jr. and Robert
Parker. Random House claimed it had acquired electronic book rights in
contracts (signed in the 1960s through the 1980s) that acquired the right to
publish those authors’ manuscripts in “book form.” A federal court disagreed
with Random House’s argument, ruling that authors retain e-book rights unless
they expressly grant them. This year, the federal appellate court affirmed that
decision, leading to a settlement of the lawsuit. The Authors Guild played an
active role in the suit.
43. The Authors Guild’s class action lawsuits against electronic databases
and the New York Times for their many years of infringing the copyrights of
countless freelance articles entered court-appointed mediation in 2007. The
Google Library Program has agreements with four academic libraries — those of
Stanford, Harvard, Oxford and the University of Michigan — and with the New
York Public Library to create digital copies of substantial parts of their
collections and to make those collections available for searching online.
Google has not sought the approval of the authors of these works for this
program. The suit alleges that the so
so called $90 billion search engine gas giant and advertising juggernaut is
engaging in massive copyright infringement at the expense of the rights of
individual writers. E books sell a
paltry $50 million nationally as noted in the Hospitals & Asylums Book
Proposal HA-24-8-07. It
is unlikely that streaming videos will be much more successful than ebooks, and
as they are relatively low priced. It
behooves the industry to set a reasonable negotiated residual rate of 2.4% in
hopes of strengthening the fledgling Internet market that needs author
subsidies to avert the overthrow of every government at the hands of the
relentless fraudulent asset reporting of Google Inc. v. Hospitals & Asylums
HA-24-10-06.
44. The final dispute is in regards to section 27
Promotional Uses (P-3) at (A) whereby notwithstanding anything to the contrary
in the MBA, the Company shall have the right to promote, without restriction or
payment, any motion picture for which literary material has been written or acquired
under the MBA. And at (B) Confirm that
a use may be promotional even if the entire motion picture is exhibited and
even if the use generates revenues for the Company. This unlimited use of an author’s work for promotional
advertising is clearly gives rise to breech of contract as an Assumption of
contractual obligations related to transfer rights of in motion pictures under 28USC(180)§4001(a)(1). The transfer instrument shall be deemed to incorporate the
assumption agreements applicable to the copyright ownership being transferred
that are required by the applicable collective bargaining agreement, and the
transferee shall be subject to the obligations under each such assumption
agreement to make residual payments and provide related notices, accruing after
the effective date of the transfer and applicable to the exploitation of the
rights transferred. An advertiser hired
by a producer can therefore be held liable for residuals.
45. The dispute between Art.
14 bis, and Art. 9 & 11 bis of the Berne Convention needs to be reiterated
here. While the owner of copyright in a
cinematographic work shall enjoy the same rights as the author of an original
work, authors have exclusive right to authorizing the reproduction of
their work in any manner or form and shall enjoy the exclusive right of
authorizing the broadcasting of their works or the communication thereof to the
public by any other means of wireless diffusion of signs, sounds or images;
therefore they do have the right to demand residuals from advertising. The problem seems to be that producers need
to fork out money to advertise and feel the authors are obligated to invest in
promotion with them. This is however an
error, 28USC(180)§4001(a)(1)(A)
makes it clear that if such a collective bargaining agreement “will” be made,
it must be respected. The writer’s
union has expressed interest in earning a percentage of advertising
revenues. A small percentage, like
0.1%, even less than DVD sales, seems like a good idea, the advertising firms
would retain the interests of the writers of the movies and the quality of
advertising would therefore improve.
46. In conclusion the Producer’s
Comprehensive Proposal to the Writer’s Guild of
America West and East October 25, 2007 requires technical editing, DVD residuals
must double, Internet and new media sales should offer high residuals of 2.4%
to avoid future conflict and authors must be entitled to a small residual from
advertising revenues to improve collaboration.
Furthermore, the motion picture and television industry must unite with
their writers and actors unions to transfer section 406 of the WIPO Copyright and Performances
and Phonograms Treaties Implementation Act of 1998 Pub.
L. No. 105-304, 112 Stat. 2860 that was improperly codified as a seizure at
Title 28USC(180)§4001 to a new Chapter 14 of Title
17 Copyright with or without more regulation of the industry.
47. Since
2000, media conglomerate revenue from entertainment segments has increased 51%
from $63 billion to $95 billion. Over
the same period of time, Writer earnings and residuals have increased only 20%
from $1.1 billion to $1.3 billion.
Between 2005 and 2006 writers actually saw a decline in their income,
only the highest-paid 25%, saw a 1.7% rise in earnings for those at the 75th
percentile to $253,377. Earnings trends for other groups softened somewhat with
the figure for the 95th percentile sliding 2.3% to $665,000; the 50th
percentile was off 2.6% to $104,750; and the 25th percentile fell 1.7% to
$37,777. Producers are doing too well
to deny their author’s their rights and the contract is so authoritarian they
can only blame themselves for the strike.
Having reassured producers of tax breaks for any actual losses they
might suffer everyone should go back to work united with a legislative mission.
48. To direct the technical editing we must begin by
repealing the equal rights in discrimination at all of section 6 Crediting
Fees/Program Fees and section 7 Appendix A. Further sections will need to be
renumbered accordingly however in this guiding paragraph they shall be referred
to as is. Section 11 Residual Payments
for Theatrical and Motion Pictures needs to be rewritten. At (B) the residual
rate for DVDs shall double. At (C) the residual rate for Internet and New media
shall be 2.4%. At (D) Confirm with WGA that, applicable to Universal only, under
Article 15.A., no compensation is due for the exhibition on free television of
any theatrical motion picture, the principal photography of which commenced
prior to June 13, 1960. Repeal Section
22 Article 48 Writer’s Participation in Production Process. Repeal section 26
Product Made for New Media. Repeal section 27 Promotional Uses. Repeal section
28 Withdrawal/Rejection. Repeal concluding clause, “Any of the Guilds’
proposals not mentioned herein are rejected”.
Transfer section 23 Grievances and Arbitration to the end of the
Contract to give the semblance of an alternative dispute resolution mechanism
guaranteeing individuals the safety to voice to redress their own
grievances. Having performed these six
repeals, three amendments and one transfer the Comprehensive Proposal would be
a surefire hit with Guild and the strike would break.
49. To prevent the motion picture
and television industry from being scarred by this second, larger, strike the
union and management must unite with a legislative purpose under Art. 2(4) of
the Berne Convention to transfer section 406 of the WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998 Pub. L. No. 105-304, 112
Stat. 2860 to a new Chapter 14
of Title 17 of the United States Code Copyright. Labor
organizations operate in the political sphere as well as in the economic
marketplace, seeking to obtain outcomes beneficial to their members, and in
their view, to society as a whole. The political goal of unions is wealth
redistribution, aggrandizement and protections and the political function as
constitutional government in industry (Commons 1913: 121). In their quest for more unions can cross the
line in the political sphere and use their power in favor of their narrow
organizational interest. The essence of
Industrial Democracy is found in the elusive legislative purpose, so well
captured in this paragraph that identifies the legislative source of the
industrial strife, and seeks to unite the writers and producers with the
legislative purpose to free themselves and create a new Chapter 14 so that
copyright could enter a new of equal protection under the Berne
Convention. The concept of industrial
democracy was one of the articulated goals of Senator Wagner who frequently
sounded the industrial democracy theme in ringing notes, and scholars have
subsequently seen in collective bargaining “the means of establishing
industrial democracy must provide for the workers’ lives in industry the sense
of worth, of freedom, and of participation that democratic government promises
them as citizens”.
50. The Federal Election Campaign Act (FECA) amendments of 1974 allowed unions and corporations to establish political action committees to raise money on a voluntary basis and contribute these funds to federal candidates under a $5,000 cap for primary and general elections. Union contributions nearly doubled in current dollars over the years 1990-2002 rising from $41.4 million to $96.6 million. On a per member basis those contributions rose from about $2.50 to nearly $6.00 over the same period. Labor gives over 90 percent of its money to Democrats. Corporations tend to be much more balanced but they became more Republican during the 1992-2002 decade In 2002 businesses gave more than $800 million (Masters & Delany 2006: 492-505). Tri-Guild Auditing is provided for in the “Gross Receipts Residual Payments Monitoring Fund” side-letter on the following basis: The Companies agree to make payments to the Fund of $287,000 per year on July 1st of 2008, 2009 and 2010, provided that each of the WGA, DGA and SAG agrees to participate and make a payment of $37,000 per year to the Fund. In exchange, each participating Guild agrees that such payments shall be considered a settlement of potential claims for royalty distributions from the Copyright Royalty Tribunal at (8) on page 3 of the Comprehensive Package. In appreciation for this settlement the Tri-Guild Auditing, collaboration with advertising, and new media breakthrough shall focus upon improving the productivity and yes, profitability of production companies and industry in general, so in need of tax breaks to cover their losses.
Sanders, Tony J.