Moral rights in collective works: Supreme Court takes economic view

The French system of droit d'auteur is often criticised as being overly favourable to authors and for its unsuitability for the protection and exploitation of works in a business environment. The main reason for this criticism is the individualistic concept of copyright which underlies the entire French system and which forms the basis of extensive moral rights granted to authors under French copyright law. According to this historical concept, the author of a work must be a natural person, because the work is seen as the expression of his or her personality, which also explains why France does not recognise works made for hire.

However, this orthodox and traditional concept is losing ground in favour of a more pragmatic, business-friendly approach. The most recent illustration of such evolution is a 22nd March 2012 decision of the Supreme Court.

Facts
The former employee of a design company specialising in perfumery had posted several of the company's works on her personal website, claiming authorship over them. As a result, the company sued the former employee for copyright infringement under the doctrine of collective works (Article 113-5 of the IP Code), under which the promoter of a work created by several people under its direction and supervision may be vested ab initio with the author's rights in the work.

Traditionally, the doctrine of collective works was understood only as an exception to the individualistic concept of French copyright and was therefore limited to patrimonial rights (ie, the moral rights vested in each contributor over his or her own contribution).

Relying on this doctrine, the company claimed ownership not only of the patrimonial rights in such works, but also of all the rights in the works, including the moral prerogatives. The company argued that by posting the works on her website and presenting herself as the sole author, the former employee had infringed its moral rights, particularly its right to attribution of the works.

Decision
The Paris Court of Appeal rejected the claim and considered that if the company was vested with the rights in the works as the promoter of a collective work, it could not be considered to be the creator of the work and therefore could not claim moral rights over the work.

Thus, the appeal court followed the traditional view that moral rights can be vested only in a natural person, since a work is protected under French copyright law only if it is original – that is, if it reflects the personality of its author. Following this concept, the fiction of the doctrine of collective works should be analysed as an exception only and its effects should be limited to the elements of copyright which may be transferred – that is, the patrimonial rights.

French copyright law provides strong arguments to support the appeal court's decision. Indeed, since moral rights are viewed as personality rights, Article L121-1 of the IP Code states that such rights are "attached" to the personality of the author and are "inalienable". Since the company cannot be considered to be the author or the creator of a work under French law, there must be a transfer of rights in order for the company to be considered the holder of the moral rights over a work. Such transfer is irreconcilable with the extra-patrimonial nature of moral rights.

The company appealed to the Supreme Court. As grounds for its appeal, the company adopted an economic and pragmatic approach which also finds support in the IP Code. The reasoning relied on a textual analysis of Article L113-5, which codifies the doctrine of collective works. According to Article L113-5: "A collective work shall be the property, unless proved otherwise, of the natural or legal person under whose name it has been disclosed. The author’s rights shall vest in such person." The company argued that this article makes no distinction between the types of rights which are vested to the promoter of a collective work, and that the words "author's rights" refer to all rights of the author, necessarily including moral prerogatives.

The Supreme Court upheld this ground of appeal and reversed the appeal court's decision, stating that "the natural or legal person at the initiative of a collective work is vested with the author's rights over this work and, in particular, the moral rights prerogatives". As a result, the Supreme Court considered that the appeal court had added a distinction which was not in the law and had thereby distorted the intended meaning of Article L113-5.

Comment
This solution is not entirely innovative, since in several previous cases the French courts have recognised that promoters of a collective work (including companies) could be considered to be the holders of a moral right over such work. However, the novelty of this decision comes from the fact that in this case, the promoter was opposed not to a third party, but rather to one of the employees who had taken part in the creative process.

The Supreme Court has sent a clear message by issuing a strong decision in very general terms and by publishing the decision in its newsletter (showing that the court intended it to have great significance). The Supreme Court clearly decided to distance itself from the traditional concept of French copyright, and instead to take a view which might be difficult to reconcile with the initial concept and nature of moral rights. The decision demonstrates that the Supreme Court will not hesitate to move on from the traditional concept of French copyright to favour an economically realistic solution.

However, its solution raises several questions, particularly in regard to the consequences of vesting moral rights in a legal person.

The main issues raised include how the moral right of a company can be enforced and how to determine whether the moral rights of such entity have been infringed. While the right to attribution presents no difficulties, the right of integrity is a much more sensitive issue, as it is impossible to refer to the personality of the author which has been expressed in the work. The only possibility in such case would be to objectify the work and to analyse the moral rights infringement without any reference to the author's personality.

Further, the perpetual and inalienable nature of moral rights under French law, as set out in Article L121-1 of the IP Code, is necessarily challenged by such a solution. What happens to the moral rights owned by an entity if the company is wound up, merged or acquired, or if it transfers its assets? Finding adequate answers to these questions is likely to require the French courts to move further away from the traditional concept of copyright.