Wednesday 6 June 2012

Equitable Licenses under French Copyright Law?

If there is one principle of French copyright law that is sacrosanct it is that assignments or licenses granted by an author of a protected work are to be interpreted restrictively and in favour of the author:  any right not expressly mentioned remains with the author.

This sacrosanct principle was upended by a recent ruling by the Supreme Court (May 30, 2012) involving a photographer and the renowned photographic agency Corbis Sygma.

The photographer had entered into an agency agreement with Corbis Sygma whereby the latter would market his works to third parties and pay him 25% of revenue.  Apparently, this agreement failed to state any assignment or license of any copyright interest in favour of Corbis Sygma.

When the latter digitized the photographic works and displayed them on its website, the photographer took umbrage and brought legal proceedings for copyright infringement, arguing that such acts constituted restricted acts (reproduction and public display) and were in no way authorized under the agency agreement.

The Paris Court of Appeal, applying the sacrosanct principle referred to above, agreed with the photographer and found Corbis Sygma liable for infringement.  This decision was reversed by the Supreme Court, which held that in so ruling without verifying whether the right to digitize and display was not implied (in the absence of contractual language to the contrary) by the agency agreement and the need to allow visualization by potential buyers, the Court of Appeal had violated the relevant sections of the Intellectual Property Code and, perhaps more significantly, Sections 1134 and 1135 of the Civil Code.  (The Supreme Cort also went out of its way to point out that the photographs that were displayed on the website were in low definition and protected by DRMs.)

Sections 1134 and 1135 of the Civil Code relate to the legal force of contracts and the principle under which contractual obligations cover not only what is expressly stated but extend to that which is implied by equity, law and usage.

The case was remanded to the Versailles Court of Appeal.

Link to Supreme Court ruling (in French):

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