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Friday, 3 January 2014

Collaborative Works in French Law: Who is suing whom?

On December 11, 2013 the French Supreme Court (Cour de cassation) issued an interesting ruling dealing with joint works (oeuvres de collaboration or collaborative works) and the particular procedural rules relating thereto in respect of infringement actions.

A collaborative work is a work created by multiple natural persons in what is often referred to as a "spirit of community" (as distinguished from collective works, which are the product of a top-down creative process).

The result is a work in which each co-author enjoys an undivided right over the whole (as well as, subject to certain conditions, rights to his individual contribution).  By way of example, a film is a collaborative work whose co-athors include the director, the screenplay writer and the music composer.

As a consequence of the rights structure in such works, exploitation of the work requires unanimity among the co-authors.  From a procedural perspective, courts have long interpreted this regime as requiring, as a condition of admissibility, a co-author who brings suit to protect his economic (as opposed to moral) rights to call into the proceedings his fellow co-authors.

The issue then arose as to what, if any, were the particular procedural requirements where the allegedly infringing work (as opposed to the infringed work) was a collaborative work.  In a 2006 ruling (where the allegedly infringing work was a film), reversing the lower court's decision on this point, the Supreme Court held that in such circumstances, a plaintiff who sues one co-author of an allegedly infringing collaborative work must, as a condition of admissibility, call into the proceedings the co-authors thereof.

This result was widely criticized by commentators (including yours truly) as being premised on a false equivalency between the two situations (co-author of a collaborative work bringing an infringement suit against a third party and author bringing suit against co-author of an allegedly infringing collaborative work).

In its most recent decision, the Court appears to to limit the scope of the 2006 ruling to the case where the defendant is himself a co-author of the allegedly infringing collaborative work.  In the 2013 case, the plaintiff (a lyricist) brought suit against the producer of an allegedly infringing sound recording of a collaborative work (song).  The appellate court had applied the 2006 reasoning and held that in such circumstances it was incumbent upon the plaintiff to call into the proceedings the co-authors of the song.  The Supreme Court reversed, noting that the sole defendant was the producer/user ("exploitant") of the allegedly infringing work and that in such circumstances, it was not a condition of admissibility that the co-authors of the song be called into the proceedings.

2006 ruling here

2013 ruling here

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