Economic and moral rights
in Europe and abroad
Dr Estelle Derclaye
Turin, October 2011
OUTLINE
• Introduction
• I. Economic rights in the EU,
including a few words on
secondary liability
• II. Moral rights in the EU
– France, UK
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I. Economic rights
• Economic rights = most harmonised in the
EU (except: right of adaptation and public
performance)
• Also right of lending and rental – see later
• Infosoc Directive (2001):
– Reproduction – art. 2
– Communication to the public (+ making
available right) - art. 3
– Distribution – art. 4 (+ exhaustion principle)
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Infosoc Directive, chapter 2
Art. 2 – Reproduction right
• “Member States shall provide for the exclusive right to
authorise or prohibit direct or indirect, temporary or permanent
reproduction by any means and in any form, in whole or in
part:
• (a) for authors, of their works;
• (b) for performers, of fixations of their performances;
• (c) for phonogram producers, of their phonograms;
• (d) for the producers of the first fixations of films, in respect of
the original and copies of their films;
• (e) for broadcasting organisations, of fixations of their
broadcasts, whether those broadcasts are transmitted by wire
or over the air, including by cable or satellite.”
• Infopaq decision, July 2009 ECJ
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Art. 3 – right to communicate and
making available to the public
• “1. Member States shall provide authors with the
exclusive right to authorise or prohibit any
communication to the public of their works, by wire or
wireless means, including the making available to the
public of their works in such a way that members of the
public may access them from a place and at a time
individually chosen by them.
• 2. Member States shall provide for the exclusive right to
authorise or prohibit the making available to the public,
by wire or wireless means, in such a way that members
of the public may access them from a place and at a
time individually chosen by them: …
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Art. 3 – right to communicate and
making available to the public
• (a) for performers, of fixations of their performances;
• (b) for phonogram producers, of their phonograms;
• (c) for the producers of the first fixations of films, of the
original and copies of their films;
• (d) for broadcasting organisations, of fixations of their
broadcasts, whether these broadcasts are transmitted by
wire or over the air, including by cable or satellite.
• 3. The rights referred to in paragraphs 1 and 2 shall not
be exhausted by any act of communication to the public
or making available to the public as set out in this
Article.”
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Interpretation of “communication to
the public”
• SGAE v Rafael Hoteles (2006), case C-306/05
• 1. While the mere provision of physical facilities does not
as such amount to communication (…), the distribution
of a signal by means of television sets by a hotel to
customers staying in its rooms, whatever technique is
used to transmit the signal, constitutes communication to
the public within the meaning of Article 3(1) of that
directive.
• 2. The private nature of hotel rooms does not preclude
the communication of a work by means of television sets
from constituting communication to the public within the
meaning of Article 3(1) of Directive 2001/29.
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Interpretation of “communication to
the public”
• FAPL v Murphy, §207: ‘Communication to
the public’ within the meaning of art. 3(1)
of Infosoc Directive must be interpreted as
covering transmission of the broadcast
works, via a television screen and
speakers, to the customers present in a
public house.
• New cases: Phonographic Performance v
Ireland, SCF v Marco del Corso
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Airfield – AG opinion
• Question 1: Must the provider of satellite
‘bouquets’ obtain an authorisation from copyright
owner when retransmitting tv channels
indirectly?
• Communication to the public by satellite =
autonomous notion which must be interpreted
uniformly
• The communication is indirect because the
broadcasters uses Canal Digitaal to code its
signals by the intermediary of Airfield which
uploads them
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Airfield
• Communication to the public refers to ‘le
grand public’ and thus excludes professionals
and can be only potential. Thus the acts of
retransmission which correspond to capturing
the signals are not such a communication but
only the provision of signals which attain
Airfield’s subscribers
• These may be different from the viewers of
the broadcaster => new public (as per SGAE)
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SCF - AG opinion
• Question: Must a dentist which communicates
radio broadcasts in its practice pay an equitable
remuneration for indirect communication to the
public of the phonograms included in the
broadcasts? YES
• Like the hotel operator, the dentist does not only
make available reading devices (e.g. a radio) but
communicates indirectly the phonograms
included in the broadcasts
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SCF - AG opinion
• Communication to the public is not limited to cases
of transmission of the signal by tv or radio distinct
from the initial transmission so the direct reception
by tvs or radios is included in notion of
communication to the public
• It is to the public: the patients stay less long than
in hotel rooms but there are more of them coming
one after the other than in hotels => there is
succession and accumulation => considerable
communication of phonograms
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Art. 4 - Distribution right
• 1. Member States shall provide for authors, in
respect of the original of their works or of copies
thereof, the exclusive right to authorise or
prohibit any form of distribution to the public by
sale or otherwise.
• 2. The distribution right shall not be exhausted
within the Community in respect of the original or
copies of the work, except where the first sale or
other transfer of ownership in the Community of
that object is made by the rightholder or with his
consent.
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Economic rights
• Secondary liability is not harmonised but
may be more difficult to harmonise as in
many Member States, this touches upon
tort law, an area of debatable Community
competence
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Infringement on the Internet (P2P)
• Private initiatives in several countries to ask ISPs to
warn customers to stop downloading download illegal
content via P2P systems (e.g. BitTorrent) or their internet
connection is cut off
• France: new independent government anti-piracy body:
warn and if necessary court cuts off internet access =>
HADOPI law passed in October 2009: “3 strikes and
you’re out”
• UK: Digital Economy Act – cut off or slow connection
• Problem: ISPs need to monitor activities = use of
expensive software, price repercussions on all
customers + issue of privacy and freedom of speech as
legitimate traffic is controlled as well
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Infringement on the Internet (P2P)
• Belgium: SABAM v. Scarlet, June 07: order ISPs
to implement blocking or filtering technology to
prevent unlawful file-sharing; supposedly,
software now exists (CopySense Network
alliance)
• ECJ decision: Promusicae v. Telefonica de
Espana (29.01.2008): whether effective
protection meant that member states had to
require ISPs to disclose personal traffic data in
order for IPR holders to bring civil proceedings
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Infringement on the Internet (P2P)
• Ruling: no obligation – member states
should themselves strike a balance
between copyright and right to privacy
• Contrary to Data Protection Directive
95/46???
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Scarlet v SABAM
• The ISP Scarlet has been ordered to filter all
communications on its network to identify files protected
by copyright and then block the transfer of these
• Question from Belgian CA: may a Member State’s court
order an ISP to put a system in place in respect of all its
clients, in abstracto and preventively, at its exclusive
charge and without time limitation, a system filtrating all its
communications in order to identify files protected by
copyright namely audiovisual and musical works) and
block their transfer?
• AG opinion only so far: answer = no
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Scarlet v SABAM
• Conclusion: = new general obligation for
ISPs, it is not concrete not individualised, the
law is not clear and precise so that
individuals know their rights and obligations
• The filtering and blocking system has no
specific guarantee re protection of personal
data and confidentiality of communications
and users cannot argue against the blocking
(=> breaches human rights)
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Scarlet v SABAM
• The Belgian law (which simply says that
courts can order an injunction to prevent
infringement of copyright and related
rights) is not a sufficient legal basis to
adopt an injunction imposing such filtering
and blocking system – it does not respect
legal certainty and legitimate trust
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II. The moral rights: international
and national laws
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•
•
•
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1. Introduction
2. The Berne Convention
3. The content of moral rights
4. New WIPO treaties : WCT and WPPT
5. Main differences in national laws
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1. Introduction
•
•
•
•
•
Moral rights are personal to the author/creator. A
company cannot have moral rights
Independent of the author’s economic rights and
inalienable (exception: Germany and Austria)
Civil Law origins - French ‘droit moral’ or ‘droits moraux’
>< common law: copyright centers on economic - not a
personal right.
Concerns an author’s relationship with his/her work
(name, honour and reputation) rather than commercial
value/exploitation of the work
The two main moral rights are the rights of:
1) Paternity or attribution – the right of the author to be made
known to the public as the creator of the work; and
2) Integrity – which prevents distortion of the work

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2. International acceptance of moral rights
The foundation for international protection of
moral rights is in Article 6bis of the Berne
Convention.
The Convention mandates two types of rights
which must be granted by the member
countries:
1.
Paternity (attribution) right
2.
Integrity right
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2. The Berne Convention
• Art. 6 bis : 2 moral rights:
• Attribution : "(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... ”
• Integrity : (…) the right "to object to any distortion,
mutilation or other modification of, or other derogatory
action in relation to... [his] work, which would be
prejudicial to his honour or reputation".
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3. Content of the moral rights:
Paternity or attribution right
-General rules applicable in most countries:
- Right to claim authorship of a work even after the
transfer of copyright.
- Right to be identified in relation to the work when work
is commercially exploited.
- Identification should be reasonably prominent on the
work
- No identification necessary if reasonable not to
identify the author.
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Integrity right
- General rules applicable in most countries:
- The right of integrity or to object to derogatory
treatment protects the artist’s personality as expressed
in the work
- The right to object to any derogatory treatment allows
the author to sue if there is any action (Berne
convention) which can be an addition, deletion, in
short a change, but also simply an action without
change to the work which is prejudicial to the author’s
honour or reputation.
- Depending on the country it includes destruction (see
below)
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Right against False Attribution
• Right of ANY person against misleading and
deceptive attributions = so does not only
belong to authors
• Reverse of paternity right
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Other moral rights
- Conferred in some jurisdictions but mainly in civil law
countries
- Right of an author to choose whether his/her work
should be published or not (divulgation right)
- The right of retractation ie to withdraw a work (subject
to compensation)
- Right of access – right of author to see the original of
the work (eg painting) mainly to exploit it (eg make
photographs)
- The right to privacy in respect of photographs
commissioned for private or domestic purposes (“the
privacy right”). Belongs to the commissioner of the
photograph
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Duration of moral rights
• Unclear as not stated in article 6bis of the Berne
Convention
• Depends on the country but in most, duration is
the same as economic rights (see following
slides for more detail)
• Any infringement of the right occurring after the
author’s death is actionable by his/her heirs or if
no heirs, the state
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Waivers
- Moral rights are inalienable between living persons
but transferable upon death and can be waived
- Lenient in common law countries >< strict in civil
law countries.
- Publishers with their superior bargaining position
often obtain authors’ consent to acts or omissions
that might otherwise infringe their moral rights.
- In addition, employees (ie for works made in the
course of employment) enjoy reduced or even no
moral rights in the UK (similar provisions allow this
in other common law countries eg Australia) – see
more on following slides
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4. The WCT and the WPPT
• WCT : nothing on moral rights
• WPPT : art. 5 : performer’s moral rights
"(1) Independently of a performer's economic rights, and
even after the transfer of those rights, the performer
shall, as regards his live aural performances or
performances fixed in phonograms, have the right to
claim to be identified as the performer of his
performances, except where omission is dictated by the
manner of the use of the performance, and to object to
any distortion, mutilation or other modification of his
performances that would be prejudicial to his reputation."
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Main differences
• Duration : I, F :
perpetual
• Right of
divulgation: some do
recognise, some don’t
or recognise an
economic right of
publication (UK)
• Right of attribution :
UK: assertion for right to
object to false attribution
>< other European
countries
• Right of integrity :
absolute >< limited right,
variations with type of
work
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UK
• 4 moral rights in the UK: paternity,
integrity, false attribution and privacy
• Paternity:
– Right does not arise automatically; need to be
asserted by author
– Extensive exceptions some e.g. technical or
functional works (computer programs, computergenerated works, typefaces…), works made for the
purpose of reporting current events, contributions in a
newspaper, magazine or periodical, encyclopaedia or
similar work
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UK
• Derogatory treatment: addition, deletion,
alteration or adaptation of the work; mutilation
or distortion of work or the change is
prejudicial to the author’s reputation or
honour. Includes destruction (Harrison v
Harrison case)
• Exceptions include: computer program, a
change of key or register for a musical work
or a translation of LD work not a treatment of
the work
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Example
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France
• Right of paternity:
• According to French courts, an editor cannot
reveal the name of the author if the author chose
to remain anonymous or chose a pseudonym.
• The name of the architect must be mentioned on
the building. However, if the architect’s work is
not original, his name must not be mentioned.
Similarly, his name must be mentioned on
photographs of the building.
• On the contrary, the right of attribution of an
author of design or of a work of applied arts,
may be limited.
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France
• Right of integrity: case law
• Changing the context of the work can be a breach (><
UK)
• Dramatic works: The director of a play must respect the
author’s conceptions. In particular the director cannot
change the play’s ending and the scenic indications such
as to distort the work. He cannot take a character out of
his environment.
• Musical works: A song (or a work in general, such as a
picture) cannot be used for an advert or a broadcast
which would go against the conceptions of the author
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France
• Works of visual and plastic art:
• The following acts been held to infringe the integrity right :
– to sell a work in separate parts
– to centre a photograph differently
– to present a drawing upside down
• TGI. Seine, June 7, 1960; Paris, May 30, 1962, D., 1962, 572;
Cass. July 6, 1965, Gaz. Pal., 1965, II, 126: the owner of a
refrigerator’s panels decorated by Buffet wanted to sell the
Different panels or parts of the refrigerator separately. The
Court of Appeals of Paris decided that it is an abuse of his
right of ownership in the work for the owner to sell the parts
separately. The owner can only sell them in their integrity.
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France
• Status of the employed author:
• There is never a transfer of moral rights in case
of employment. The author can demand his
name to be mentioned, even after the
termination of the employment contract, as the
right is imprescriptible.
• The employer can impose on the author certain
constraints justified by aesthetic or financial
reasons. The author cannot in these cases,
object to such modifications, and invoke his
moral right of integrity.
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France
• Partial waivers are nevertheless allowed - not in
advance but a posteriori
• The Court of Appeals of Paris found that an
employed American ghost-writer who had
waived his right of attribution under U.S. law,
could exercise his right in France, because the
waiver was against the French ‘ordre public’.
See Paris 1st ch., Feb. 1 1989, Anne Bragance,
La Nuit du Sérail, RIDA, 1989, n°142, 301. See
also the John Huston case.
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Angelica Huston v Turner Entertainment
• [1992] ECC 334 (French Supreme Court)
• A black and white film, “Asphalt Jungle”,
directed by John Huston, colourised by
Turner Entertainment (the producer’s
successors)
• Heirs sued in France for breach of integrity
right to prevent showing the colourised
version on TV
• Ruling: as with previous case re attribution
right, Huston’s waiver in US contract is
against French ‘ordre public’.
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The US and moral rights
• Even if US joined the Convention in 1989, no
protection for moral rights except the Visual Artists
Rights Act 1990 (VARA).
• VARA gives some moral rights protection to paintings,
drawings, prints, sculptures, and photographs
produced for exhibition purposes.
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