Creators' Rights Alliance - Between a rock and a hard place - Appendix 2: Select European Laws
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French copyright law is governed by the French Intellectual Property Code of 1 July 1992. Under French law, an author obtains moral rights,[1] and economic rights.[2][3][4] First, the Code imposes rules of “formal specificity”, and “restrictive interpretation”. Article L. 131-3(1) requires that each right transferred be specifically mentioned in the instrument of conveyance and that the scope of the transfer be limited as to extent, purpose, time and place. Grants of global rights, unelaborated, are likely to be unenforceable. Moreover, contracts are interpreted restrictively, so that what is not expressly transferred is not conveyed. Nevertheless, the law imposes requirements on the mode of transfer, and limits the effects of such transfer, and in so doing confers a high level of protection on authors. The moral rights include the right of divulgation, attribution and integrity. According to Article L. 121-1 the moral right is “attached to the author’s person.” In contrast with the position in Germany, however, the economic rights are separate and transferable.

Article L 131-6 allows for an express provision transferring rights to exploit in future media, even though they were not foreseen at the time of the contract. However, the agreement must provide “correlative participation in profits of exploitation.” In Union Syndicale des Journalistes Francais CFDT et al v. SA SDV Plurimedia[5] the Strasbourg District Court held that placing newspaper articles on the Internet required the journalists’ consents.[6] It also held that the Internet was a new means of communication, such that the journalists could not grant the publishing company the right to exploit the work in a manner not predicted at the time of the conclusion of the contract of employment, unless a corresponding participation in the revenue from exploitation had been expressly agreed. Similarly in SA Groupe Progres v Syndicat National des Journalistes,[7] the Cour D’Appel, at Lyon, dealing with the position of employed journalists, held that publication on the Internet needed to be expressly dealt with in a contract because it could not be considered “an extension of the distribution by way of newsprint since, in particular, the reduction to typographical form and the presentation of an article in a publication corresponding with the conceptions in the mind of the author at the conclusion of the contract for co-operation are no longer present, the readership is enlarged, and the duration of distribution is different.” [8]

As regards authors’ rights to remuneration, Article L. 131-4 states that transfer must entitle authors to participate proportionally in the receipts from the sale or exploitation of their work. According to Lucas, “the intent was to protect authors who might otherwise be tempted to alienate valuable rights for the illusory bait of lump sum payment.”[9] as are high thresholds. However, the percentage is left to the parties, so might be low: 0.5% has been held satisfactory in the case of a film, but 2.5% inadequate for publishing. More importantly still, the Code provides for a series of exceptions, where lump sum payments are acceptable. Lucas states that some of these are “so broad that they threaten to swallow the rule.”[10] The effect is to require a link to receipts, so that lump sum payments are prohibited,

Publishing contracts (including music publishing agreements) are regulated in more detail still in Articles L 132-1- L 132-17. These are not only author-protective provisions, but include some which place the author under certain obligations. However, for the purposes of this document the more important provisions are the protective ones. The publisher comes under an obligation to publish the work, not to alter it, to attribute authorship, to exploit the work (with promotion consistent with the custom of the trade), pay royalties and provide accounts.[11] The publisher cannot transfer the contract without the author’s consent,[12] although it might be transferred indirectly by sale of the business. Even in such situations, the author can cancel the contract if the transfer is likely to compromise his moral or economic interests. There are even provisions safeguarding authors’ royalties from the claims of creditors in the event of bankruptcy of the publisher.[13]

French law also contains detailed provisions on “performance contracts” (which are to be found in Article L. 132-18), audiovisual production contracts,[14] audiovisual adaptation contracts and contracts for works to be used in advertising. The latter were introduced in 1985,[15] and give rise to presumption of transfer of exploitation rights, and the possibility for payment of only a flat fee (rather than proportionate remuneration). However, to safeguard the author’s interests, the fee must specify distinct remuneration for each mode of exploitation, by way of geographical use and duration of use. These rules do not operate in relation to international agreements, or where the author is outside France, or in the case of a multinational advertising campaign.

[1]  France, Art. L. 111-1.

[2]  France, Art. 122-1.

[3]  Art. L. 122-7.

[4] A. Francon, ‘Contractual Freedom in French Copyright’ in H. Cohen Jehoram (ed.), Copyright Contracts 101 (Sijthoff, Alphen aan den Rijn, 1977).

[5] 3  February 1998 (1999) 30(8) International Review Of Industrial Property And Copyright Law 973. Discussed in B. Hugenholtz & A de Kroon, ‘The Electronic Rights War. Who Owns the Rights to New Digital Uses of Existing Works of Authorship?’ (2000) IRIS (Legal Observations of the European Audiovisual Observatory) 16.

[6]  In part because of the terms of the Wage Agreement for Journalists dated 27 October 1987/Art. L. 761-9 of the Labour Code (syndication requires consent).

[7]  [2001] ECC 62; (2000) 184 Revue Internationale De Droit D’auteur 357.

[8] Likewise the Paris Court of Appeal,10 May 2000 cited in Kerever, (2001) 187 Revue Internationale De Droit D’auteur 177.

[9] A. Lucas, France, in M. Nimmer & P. Geller (eds.), International Copyright Law and Practice (New York: Matthew Bender 2000, annually updated) para 4[3][b], FRA-65.

[10] ibid para 4[3][b][I], FRA-66.

[11]  France, Art. L.132-11.

[12]  France, Art. L. 132-16.

[13]  France, Art. L.131-8.

[14] Authors of audiovisual works have an inalienable right to participate in the proceeds of the exploiter from each form of utilization, such as film productions, television broadcasts and the videocassette business.

[15] Oberthur, ‘Article 14 concerning commissioned works for advertising’, (1986) 128 Revue Internationale De Droit D’auteur 7.

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