Friday 21 June 2013

French Supreme Court Takes Position on Thorny Conflict of Law Issue


                                                              Berne, Switzerland

In a ruling dated April 10, 2013 the French Cour de cassation (Supreme Court) held that the issue of  initial ownership of the copyright in a work is to be determined, in accordance with article 5.2 of the Berne Convention, under the law of the country where protection is being sought (and not the law of the country of origin of the work).

This thorny question has been the subject of case-law over the last 20 years with courts at times adopting the view taken by the Cour de cassation in its latest ruling and at times holding, to the contrary, that this issue (original ownership of copyright) does not fall within the scope of article 5.2 of the Berne Convention and must be dealt with under French law's conflict of law principles, which refer to the country of origin of the work.

It remains to be seen whether this latest judicial pronouncement is really definitive or whether lower courts will continue to apply a country-of-origin approach to the question of initial copyright ownership.  I have personally always favoured this latter approach for both policy reasons (are there to be potentially as many initial copyright owners as there are countries in which protection is sought?) and for reasons related to the literal interpretation of article 5.2 of the Berne Convention (which, in my view, does not extend to this issue).

Link to April 10, 2013 ruling here

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