4 - Negotiation and Formation of the Contract

Summary

This chapter analyses limitations to parties’ freedom of contract as to the negotiation and formation stage of the contracts under review, that are aimed at remedying situations where musicians grant excessive rights to corporate partners. These limitations seek to ensure that such contracts have a ‘fair scope’. As yet, awaiting potential EU harmonisation of authorship and initial ownership, there are no relevant harmonising rules at the EU level. Instead, focus lies with restrictions under national law. First, objectionable precontractual behaviour may be sanctioned by precontractual liability, giving right to damages. Subsequently, the requirement of consent is subject to certain requirements. Third, the law limits parties’ freedom as to the scope of rights that may be transferred or licensed and provides tools to determine this scope in practice. Finally, the chapter turns to the negotiation and formation stage of secondary contractual relationships that may arise once the initial contract has been entered into. It concludes with an overview of the main findings.