“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!"

The CopyKat - snappers paradise: skating clear of Getty's images, it's in Degeneres we trust!

In Taiwan, the Dutch television production company Endemol has lost a lawsuit against the the producers of a Taiwan game show called "Go to Top 101" which  it accused of copying its popular program called "1 vs 100."  "Go to Top 101" was a 29-episode show in which a single contestant went up against 101 contestants. It was aired by Taiwan's China Television Company in 2009 and was hosted by Hu Gua. Endemol argued that "Go to Top 101" had similar scenic designs as "1 vs 100" and just like the foreign show, made three "helps" available to contestants. The Taipei District Court ruled that although the two shows had very similar rules and ideas, elimination and helps are common concepts in game shows and should not be overly protected by copyright. 

Rival services in Australia have accused Netflix of turning a 'blind eye' to copyright - pointing out that although it has not launched in Australia, Netflix has anywhere between 50 and 200,000 subscribers there, who use a VPN (virtual private network) such as Hola to gain access, and yet the 'unavailable' service has no agreement with content owners to operate in the market in Australia.


Rightscorp, "the leading provider of monetization services for artists and holders of copyrighted Intellectual Property" has said that it has closed more than 60,000 cases of copyright infringement to sate. The company, which says it "helps monetize copyrighted intellectual property for rights holders and provides valuable Digital Millennium Copyrights Act compliance Solution for ISPs" announced that it has settled more than 60,000 cases of copyright infringement to date. The Company says that it's monetization service "successfully collected payments from illegal distributors through notifications sent by their Internet Service Providers (ISPs) on digital assets including music, films, books, video games and software." It will be interesting to see how the digital world reacts tp the news - this blogger expects cries of 'trolls ahoy' to echo around cyberspace.

Two copyright law professors have told the US Supreme Court that Aereo's service is illegal and they say that in denying broadcasters request for an injunction against Aereo, the Second Circuit of Appeals got just about everything wrong, misconstruing the "text, structure, specific legislative guidance, and general legislative purposes of the 1976 [Copyright] Act." Berkeley Law Professor Peter Menell and UCLA law professor David Nimmer say that the Second Circuit handed Aereo a copyright "get-out-of-jail-free card" that unravels the basis of the Copyright Act of 1976 that the Congress has reaffirmed  numerous, times saying in an amicus brief "That ruling cannot stand" submitting that the Court should hold that Aereo’s service infringes the copyright owners’ exclusive right of public performance," they said.

Getty Images has rolled a social sharing feature that "unshackles a vast section of its image collection". Getty’s new Embed tool will allow bloggers and the like to easily embed and share its imagery - at no cost - for  non-commercial use (hmmm, what DOES that mean) on websites, blogs and social media channels. Users will be obliged to include photographer attribution and provide a link back to Getty Images and the company said that the “embed” tool provides people with a simple and legal way to utilise content “that respects creators’ rights, including the opportunity to generate licensing revenue". I am so in awe of the previously ever litigious Getty that I have just stuck with the cowards mantra of 'no image' for this blog as Getty is mentioned (and I couldn't quite understand their website).  But we are not so worried by the Oscars ..........

(c) 2014 - but to whom?

Question: Who owns the copyright to Ellen's selfie image at the Oscars? Well apart from Eleonora's article and the 20 odd comments on the IPKat on this topic, and various opinions here  and here and here  (all saying the man who pushed the button, Bradley Cooper, owns it) we were alerted to a very well written opinion by photographer Bettie Robertson who said the snap belongs to Ellen DeGeneres -- and probably to Ellen alone - UNLESS -  she was doing this as part of a "work for hire" for the Academy - and that those featured in the "groupie" would  not be joint authors, and in all events Ellen told them what she was going to do with the snap - and Bradley who pushed the button "was just acting like a thoughtful gentleman".  The fairly heated discussion on the IPKat also suggested that sponsor Samsung might be the owner, having possibly directed Ellen to arrange the shot on the S5 mobile phone as a publicity stunt, although our very own John Enser opines "Surely the answer is that anyone who goes anywhere near the Oscars stage will have signed a release handing over all their rights to the Academy - so irrespective of who was the first owner, it is now owned by the Academy?".