Droit Moral - Aperçu International Valérie Laure Benabou Prof. University of Versailles France

Droit Moral - Aperçu International

Valérie Laure Benabou

Prof. University of Versailles France

Moral Rights : International Sources

• Berne Convention : article 6 bis• Geneva Universal Convention : no

provision• WIPO Treaties 1996 : no provision • TRIP’S Agreement 1994: no provision • Community Law : no provision• International Convention on Cultural

Diversity: no provision


• Only the Berne Convention : article 6 bis (Revision Conference of Rome 1928)


• Berne Convention : article 6 bis• Geneva Universal Convention : no provision : why ?

Minimalist approach of International Copyright Law• WIPO Treaties 1996 : no provision • TRIP’S Agreement 1994: no provision • Community Law : no provision• International Convention on Cultural Diversity: no

provision


• Berne Convention : article 6 bis• Geneva Universal Convention : no provision : • WIPO Treaties 1996 : no provision : why ? Different

purposes : Internet / DRM/Information • TRIP’S Agreement 1994: no provision • Community Law : no provision• International Convention on Cultural Diversity: no

provision


• Berne Convention : article 6 bis• Geneva Universal Convention : no provision : • WIPO Treaties 1996 : no provision :• TRIP’S Agreement 1994: no provision : why ?

Economic Organisation : Moral Right outside of its scope

• Community Law : no provision• International Convention on Cultural Diversity: no

provision


• Berne Convention : article 6 bis• Geneva Universal Convention : no provision : • WIPO Treaties 1996 : no provision :• TRIP’S Agreement 1994: no provision • Community Law : no provision : why ? Economic

Organisation : Moral Right outside of its scope… so far ?

• International Convention on Cultural Diversity: no provision


• Berne Convention : article 6 bis• Geneva Universal Convention : no provision : • WIPO Treaties 1996 : no provision :• TRIP’S Agreement 1994: no provision • Community Law : no provision • International Convention on Cultural Diversity: no

provision : why ? Cultural goals ? Access to knowledge…

Moral Right : International Sources

• Berne Convention : article 6 bis« Moral Rights »

• 1. To claim authorship; to object to certain modifications and other derogatory actions;

• 2. After the author's death; • 3. Means of redress


• article 6 bis : Content (1) Independently of the author's economic

rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.


• article 6 bis : Content(1) Independently of the author's economic

rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work (paternity right or right of attribution)


• article 6 bis: Content(1) Independently of the author's economic

rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification (integrity right)


• Berne Convention : article 6 bis

Paternity right Integrity right No right to « divulge » No right of withdraw or repent

Minimalist conception of Moral Rights as compared to national legislations (France ; Germany…)


Article 6 bis : Authorship /duration• (2) The rights granted to the author in accordance with

the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained


Article 6 bis : authorship/duration• (2) The rights granted to the author in accordance with

the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained


Article 6 bis : authorship/duration• (2) The rights granted to the author in accordance

with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained


Article 6 bis : conflict of Law : legislation of the country where protection is claimed

• (3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.


Scope and effectiveness of the article 6 bis

Limited scope as it is possible to comply with article 6 bis without introducing express provisions within copyright law (see United States)

The TRIP’S reference to the Berne Convention does not extend to article 6 bis

Moral Right : Comparative Law

Civil Law

Droit moral or « droits

moraux »

Common Law

Weak moral right or

inexistence

Moral Right : Civil Law

Monist conception

Germany

« Urheberpersönlich-

keitsrecht »

Austria, Hungaria,Czech

Republic..

Dualist conception

France, Italy, Spain…

« Droit moral, diritto morale, deretcho

moral »

Moral Rights

• Civil Law countries

• No unanimity on duration, on scope, on possibility of waiving one’s right

• Ex : ghostwriter agreement is not really enforceable through French Law / opposed to Netherland Act (waiver of the right to be named).


Monist conception

Germany

Urheberpersönlichkeitsrecht

Same duration End of moral right at the

expiration of economic rights


Monist conception

Germany

Urheberpersönlichkeitsrecht

Urheberrecht as a whole is not alienable

Same philosophy : balance of interests


Dualist conception

France…

Droit moral

Different regime from economic

rights

Different philosophy

(author centered


Dualist conception

France

Droit moral

Perpetual

Inalienable

Imprescriptible

Public order


Dualist conception

France

Droit moral

Perpetual:

Until no heirs ?

Right to redress from a

collective society ?


Dualist conception

France

Droit moral

Perpetual:

« Les liasons dangereuses

1969 »


Dualist conception

France

Droit moral

Perpetual:

« Les liasons dangereuses

1969 »


Dualist conception

France

Droit moral

Perpetual

Inalienable

Imprescriptible

Public order


Dualist conception

France

Droit moral

Inalienable

Non transferable

No waiver


Dualist conception

France

Droit moral

Inalienable

Ghostwriters conventions


Dualist conception

France

Droit moral

Inalienable

« On va fluncher »

No general waiver for unknown uses


Dualist conception

France

Droit moral

Inalienable

Limits vis-à-vis right of

adaptation…


Dualist conception

France

Droit moral

Inalienable

Specific regime for audiovisual works


Dualist conception

France

Droit moral

Public order


Dualist conception

France

Droit moral

International Public order

« Asphalt Jungle » /

colorization of american film


Dualist conception

France

Droit moral

International Public order

« Asphalt Jungle » /

colorization of american film

Moral Right : Common Law

Copyright Law No moral right at all ?


Copyright Law No moral right is an inaccurate

view


Copyright Law See Millar v. Taylor 1769

Moral Rights

• Millar v. Taylor : Lord Mandsfield

« From what source, then, is the common law drawn ? The author can not reap pecuniary profit it, the next moment after his work comes out, it may be pirated upon worse paper and in worse print, and in a cheaper volume ? (…)

Moral Rights

• Millar v. Taylor : Lord Mandsfield « The author may not be deprived of any profit,

but lose the expense he has been at. He is no more the master of the use of his own name. He has no control over the correctness of his own work. He can not prevent additions. He can not retract errors. He can not amend ; or cancel a faulty edition. Any one may print, pirate and perpetuate the imperfections to the disgrace and against the will of the author….

Moral Right Quizz Origin • Is MR Case-Law or are there legal provisions ? Content • What is the content of MR ? Does it go further than article 6 bis? • Is there a divulgation right ? If not, is there a specific power of

the author on the decision to publish ?• Is there a right to repent or to withdraw ? • What duration for MR ? Structure of MR within copyright/droit d’auteur • What kind of relationship between MR and economic rights ?• What kind of relationship lies between right to integrity and

adaptation right ?

Limitations to moral right

• Abuse ? • Exhaustion of right CJCE Dansk Imerco• Article 10 ECHR• Exceptions : parody, quotations, criticism…• Access to Knowledge ?• Ownership on material work• Public order ?


• Article 10 ECHR


• Article 10 ECHR

Les Misérables

Heir of Victor Hugo fails to stop Les Mis• France's highest appeal court allows modern sequel to 1860s masterpie• Kim Willsher in Paris• Wednesday January 31, 2007• The Guardian• The great-great-grandson of Victor Hugo said yesterday he was bitterly

disappointed after his six-year battle to ban a modern sequel to Les Misérables was ended by France's highest appeal court

• But he vowed to continue fighting to protect what he described as his family's "moral rights" to the classic wor

• "I believed we were fighting the good cause but the court decided otzherwise. It is very, very disappointing," Pierre Hugo said. "I am not just fighting for myself, my family and for Victor Hugo but for the descendants of all writers, painters and composers who should be protected from people who want to use a famous name and work just for money

Les Misérables

• Angry descendants claiming the publishers had betrayed the spirit of his ancestor's work to make money.

• Hugo, 59, a goldsmith, has been fighting to have banned Cosette ou le Temps des Illusions (Cosette or the Time of Illusions), written by journalist François Cérésa. He had demanded £450,000 damages, have written to President Jacques Chirac, to the European parliament and to France's culture ministry urging them to criticise the book. In an open letter to the French newspaper Libération they asked: "Can one imagine commissioning the 10th symphony of Beethoven?" Hugo purists were furious that Cérésa resurrected Inspector Javert, the villain of Hugo's story who jumps into the Seine at the end, and recast him as a hero.

• The court decision met with a sigh of relief from authors, playwrights and musical producers who had feared an end to adaptations of classical works

Les misérables

• Mr Hugo argued that the sequel, branded Les Mis II by critics, violated the "respect of the integrity" of Les Misérables, which Hugo wrote in 1862. The first court threw out his case saying he had not proved he was related to the author.

• In 2004 an appeal court overturned this verdict, ruling that an author's rights were transmissible to heirs. It called Les Misérables "a veritable monument of world literature" and agreed that Hugo "would not have accepted for a third party to write a sequel". The publishers were ordered to pay symbolic damages of €1 but appealed.

• Yesterday the French court of cassation decided Cosette, published by Plon, did not betray the spirit of the original or breach descendants' rights.

• Mr Hugo said: "I don't mind adaptations and many are very good but this book is not an adaptation. I have read it and it is not badly written but the publishers used Victor Hugo's name and the title Les Misérables as a commercial operation ... It was nothing to do with literature, they were just trying to make money."

• Mr Cérésa's lawyers argued that banning his novel would violate freedom of expression and prevent others using great works of art and literature as inspiration. Victor Hugo himself once wrote: "The writer as a writer has but one heir - the public domain.

Moral right of the performers

• Compilation ?

• Jean Ferrat / Pierre Perret

Moral Right Quizz

Characteristics of MR • Is the Moral Right assignable, transferable?• Is it possible to waive one’s MR, such as right to claim

ownership? • Is it possible to renounce to the benefit of the Moral Right ex

ante and/or ex post ?

Ownership• Is the moral right of the employee restrained ? • Do the authors of a collaboration work share the moral right and

if so, how ? • What exercise of the MR by the heirs ? • Is the moral right at the discretion of the rightholder or is an

abusive exercise thereof possible ?

Documents

Droit Moral - Aperçu International Valérie Laure Benabou Prof. University of Versailles France