“Not a country for subbers”: the inclusion of subtitles in movies vs the enforcement of authors’ economic and moral rights

Netflix and (copyright) chill? The 1709 Blog is delighted to host the following reflections by friend Federica Pezza (Hogan Lovells) on films, subtitles and ... copyright (what else?).

Here's what Federica writes:

"It’s Friday night, you had a pretty bad day at work and – why not – it is raining outside. Still, while heavily lying on your sofa, you cannot stop smiling. You are watching your favourite TV series on Netflix, while holding a lovely popcorn family bag and sipping your favourite beer.

Life is wonderful, isn’t?

Also our daily copyright story is about Netflix and TV series. However, no Popcorn is involved (this time). So, for a deeper understanding, you’d better throw your family pack away and take some Mexican nachos instead. 

Plus, no matter what series you are watching right now, just turn subtitles on.

As you might have guessed, this is a story which starts in Mexico and directly gets to the Academy Awards. 

Main character of this fairy tale, indeed, is the director Alfonso Cuaron, who was recently awarded three Oscar for his movie “Roma”, a black-and-white production in Spanish and Mixtec, distributed worldwide thanks to Netflix. Interestingly, in all of his interviews, the director expressly acknowledged the merits of such a singular choice, declaring that the diffusion of his film worldwide would have not been the same without Netflix intervention. 

Everything nice and fine so far.

However, you might not know that just one month before the Academy Awards, the same Mexican director had been complaining with the media company due to a very singular – IP-related – issue. Apparently, this related to the inclusion, by Netflix, of Iberian-Spanish subtitles. In Cuaron’s view, such an inclusion would have been “parochial, ignorant and offensive to Spaniards themselves”. This because, in the director’ opinion, the two languages  - Mexican Spanish and European Spanish - would not, actually, be so different to require a specific translation. On its side, following Cuaron’ complaints, Netflix decided to drop the “European Spanish” subtitles from “Roma” in Spain, replacing it with an option for European Spanish closed captions.

From our perspective, despite the nice happy ending, the episode is interesting insofar as it gives us the opportunity to analyse, from a copyright standpoint, the current legal status of subtitling and subtitles in the EU.

Article 6 bis of the Berne Convention recognises the moral right of integrity, which consists of the possibility for the author of a work to object to any distortion, modification of or other derogatory action in relation to it, which would be prejudicial to the author’s honour and reputation. Notwithstanding its fundamental role, however, the mentioned right has been implemented differently across the various Berne Union countries. 

For example, the definition of integrity is certainly narrower in the United Kingdom, than what is the case elsewhere: under Section 80 (2) CDPA a derogatory "treatment" is indeed required. Also, in the same country, when it comes to translations of literary and dramatic works, these modifications are expressly excluded from the scope of the right. However, according to scholarly literature, "the exclusion of translations from the definition should be confined to true and accurate translations, as it is difficult to see why an author should not be able to object to a translation which murders his work or distorts its meaning" (1987 French case of Zorine (Leonide) v Le Lucernaire L. Bently & B. Sherman "Intellectual Property Law"  4^th Edition, 2014,  p. 285). 

Differently, in civil law jurisdictions, given the central role played by the author’s personality, there would be better chances of success. In this sense, an interesting example is offered by the (quite dated) claim brought in Italy by fims director Borowczyk against the Cinematic Company for the dubbing of his movie “Docteur Jekyll et les Femmes”. In that circumstance, ruling in favour of the plaintiff, the Court of First Instance of Rome (Trib. of  Rome 23 June 1984 in Foro.It 1985) acknowledged the undeniable right of the author under Article 20 of the Italian Copyright Act (integrity right) to oppose the circulation of those versions of the movie he did not directly take care of. Still, as one might argue, one thing is dubbing and another, very different - and way less intrusive ‘treatment’ - is subtitling…

What about economic rights? Apparently, when it comes to the merely-commercial side of things, the law is clearly on the side of copyright owners. Article 8 of the Berne Convention states: “Authors of literary and artistic works protected by this Convention shall enjoy the exclusive right of making and of authorizing the translation of their works through the term of protection of their rights in the original works”. For this very reason, two years ago, in Sweden, Eugen Archy, the founder of Undertexter.se, a fan-made subtitles site, was held liable of copyright infringement by the Amsterdam District Court, given that “that subtitles can only be created and distributed after permission has been obtained from copyright holders”. In the same way, in Italy in September 2018, following proceedings brought by the Italian Federation for the Protection of Audio-visual contents ("FAPAV") , the fan-made site Italiansubs had to interrupt its allegedly “copyright infringing” activity.  

Therefore, as long as economic rights are concerned, the current trend in relation to subtitles seems to be pretty much the same across different Member States. Still, in this sense, further questions might arise with regard to the protection of subtitles as derivative works. And in fact, in the EU, differently from the US, infringing works might qualify for protection under copyright law, provided that the originality requirement is satisfied. However, to date, it is yet to be clarified how the notion of originality should be constructed in this context.

In all this, the weekend is on us … The above suggests that while a few countries might not be for subbers (any longer), it is always and everywhere a country for couch potatoes. Happy weekend!"