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
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.
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
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.
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" 4th
Edition, 2014, p. 285).
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
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…
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
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!"