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Tuesday, 10 April 2012

Moral Rights in Collective Works

French copyright law is often perceived as very author-friendly (perhaps too much so). One manifestation of this friendliness is its reluctance to consider legal persons as authors and/or initial rightsholders. While this impression is understandable, it overlooks the fact that there does exist a category of works in respect of which the copyright can vest ab initio in a legal person, viz. collective works.

French law recognizes two categories of works created by more than one person: collaborative works and collective works. The copyright in the former vests jointly in all of the co-authors (joint ownership or indivision in civil law terminology). As regards collective works, the copyright vests in the person (natural or legal, but more often than not legal) who acts as the "co-ordinator" of the work. In other words, collaborative works are created "horizantally" by peers working towards a common goal (e.g., a song co-written by a composer and a lyricist) whereas collective works are created "vertically", under the direction and supervision of a "co-ordinator" (e.g., a newspaper).

Once a work has been properly classified as a collective work, a distinction is made between copyright in the work as a whole, which vests in the person who acted as co-ordinator and the copyright in the individual contributions (where they are identifiable), which vests in the individual contributors.

An unresolved issue was whether the owner of the copyright in the collective work also enjoyed moral rights therein. The primary argument in favour of such a position (moral rights included) is the language of Section L.113-5 Intellectual Property Code which sets out the general rule that the "rights of the author" in a collective work vest in the so-called co-ordinator. As no distinction is made between patrimonial rights and moral rights, one would naturally conclude that both are attributed to that person. However, the contrary position (no moral rights) could rely on the following reasoning: despite the fact that the copyright in the work as a whole does indeed vest in the co-ordinator, he (or it) is not an author in the ordinary sense of the word and therefore cannot enjoy moral rights, which are inextricably tied to the personality of a natural person creator.

In a recent ruling (March 22, 2012), the Cour de cassation (Supreme Court) has resolved this particular issue in favour of the former position (moral rights included). The Court held that "the natural or legal person who initiates a collective work enjoys the rights of the author over said work and, in particular, the moral right prerogatives".

Link to the Cour de cassation ruling: http://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000025565550&fastReqId=1608341258&fastPos=1

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