Luksan and French Law and Practice

The recent ruling by the CJEU in Luksan raises questions as to the conformity of French legislative provisions governing author-producer and performer-producer relationships in the context of movies and other audiovisual works.

The Court held:

"European Union law must be interpreted as allowing the Member States the option of laying down a presumption of transfer, in favour of the producer of a cinematographic work, of rights to exploit the cinematographic work such as those at issue in the main proceedings (satellite broadcasting right, reproduction right and any other right of communication to the public through the making available to the public), provided that such a presumption is not an irrebuttable one precluding the principal director of that work from agreeing otherwise."

Under Section L.113-7 of the Intellectual Property Code, the presumed co-authors of an audiovisual work are the director, screenwriter (as well as writer of the the treatment and dialogue), composer of music created especially for the work (as well as the author of the underlying work in the case of adaptation). Pursuant to Section L.132-24 of the Intellectual Prperty Code, the production agreement between the producer of an audiovisual work and a co-author thereof (director, screenwriter) creates a rebuttable presumption of an assignment of rights of exploitation in favour of the producer. (The musical composer's rights are excluded as they are dealt with through SACEM.)

On its face, the preumption is rebuttable and would hence seem to be in conformity with Luksan principles. In practice, the imbalance in negotiating power between the parties is such that the presumption is never actually rebutted. Would this fact be enough to disqualify the French statutory provision? Probably not.

More problematic is the case of performers (actors). Section L.212-4 of the Intelelctual Property Code provides for an irrebuttable presumption of assignment of exploitation rights in the audiovisual work in favour of the producer. Assuming the Luksan pinciples apply beyond the narrow case of the principal director (not an unreasonable assumption) to the case of performers and their related rights, this statutory provision is incompatible with EU law.