Paris Court of Appeal confirms that Koons’s 'Naked' sculpture infringes copyright in 'Enfants' photograph, rejecting freedom of the arts and parody defences

Paris Court of Appeal confirms that Koons’s 'Naked' sculpture infringes copyright in 'Enfants' photograph, rejecting freedom of the arts and parody defences

By Eleonora Rosati writing for the IPKat and first published on the IPKat here 

Last week, the Paris Court Appeal ruled (decision No 152/2019) in favour of the estate of late French photographer Jean-François Bauret in proceedings brought against, inter alia, US artist Jeff Koons (an artist who, as readers will know, has been sued a few times for copyright infringement: see, eg, here, here, and here). 

The action related to the unauthorized reproduction of a photograph (Bauret’s ‘Enfants’, shown below on the left hand side) in a sculpture (Koons's ‘Naked’, below on the right hand side). 

'Enfants' (L) and 'Naked' (R)

The defendants had advanced a number of arguments, including that: 

- ‘Enfants’ is not original; 

- even if it was, ‘Naked’, would not incorporate any original elements thereof; 

- even if prima facie infringement was established, freedom of the arts and parody would prevail over copyright.

The court rejected them all. Let’s see what happened in greater detail. 

Background 

In 1970, Bauret realized a black-and-white photograph titled ‘Enfants’. No print of the photograph was sold, but in 1975 the photographer authorized the making of postcards carrying the image of the work. 

In 2014, the Bauret estate found out that Jeff Koons had realized a porcelain sculpture, ‘Naked’, which was similar to the ‘Enfants’ photograph. Koons’s work had been made in 1988 in 4 copies as part of the Banality series, a readymade collection of artworks that contains a mix of pop art and kitsch. 

The sculpture was never exhibited in France, though in 2015 it should have been on display in an exhibition at the Centre Pompidou in Paris. 

The Bauret estate sent a warning letter to both Koons and the museum. For reasons linked to damage during transportation, ‘Naked’ was not included in the exhibition in the end. The museum subsequently also removed the image of the sculpture from the exhibition catalogue. 

A lawsuit followed and, in 2017, the TGI Paris partly ruled in favour of the photographer’s estate. Both parties appealed. 

Aside from issues concerning the personal liability of Koons, the judgment is particularly interesting as far as substantive issues of copyright subsistence and infringement are concerned. 

Originality of ‘Enfants’

As regards the protectability of the photograph, the defendants had submitted that Bauret had failed to express his own personal touch. The choices made were not sufficient for the work to be considered his own intellectual creation, in that the photograph represented a ‘spontaneous pose’ assumed by the two children and the estate had failed to demonstrated where the originality of such creation would lie. 

The court disagreed, and held that Bauret’s work revealed a new concept of nude, which is raw and devoid of any sexual connotation, and such as to disclose the personality of the author. Among other things, the particular use of the light was meant to confer some ‘sculptural’ character to the photograph and the overall composition (including the pose and expression of the children) served to add a ‘geometric’ dimension to the work. According to the court, the latter in particular served to dispel any idea that the pose of the children would be spontaneous: rather, they had been directed by the photographer to assume a certain pose and expression. 

In light of all this, like at first instance, the photograph was found to be original and protectable. 

Prima facie infringement

The claimants pointed to the several similarities between the photograph and challenged the relevance of the argument, made by the defendants, that the different character (real vs fictional) and message (children’s innocence vs Adam & Eve) conveyed by, respectively, the photograph and the sculpture would exclude the recognizability of the former in the latter (it should be noted, however, that Koons never denied that he had had access to the photograph). 

The defendants submitted that the sculpture had not reproduced anything that would confer originality to the photograph, and highlighted the differences between these two, including the colour, dimensions (a 2D photo vs a 3D sculpture) and size ('Naked''s height is 1m), as well as other differences (hair colour, navel, children’s gaze, position of the hands, background, elements in the composition). 

The court disagreed, and found that the sculpture had actually incorporated the “essential features” of the photograph, which constituted its original character. 

Defences 

Copyright and freedom of expression 

The court also considered an important point: to what extent can freedom of expression – including freedom of artistic expression – restrict or even trump copyright protection? 

To answer this, the court followed a similar approach to the one indicated (correctly) by the Court of Justice of the European Union (CJEU) in its recent Grand Chamber rulings in Funke Medien, Spiegel Online, and Pelham [Katposts here, here,  and here] notably that only available copyright exceptions and limitations can be relied upon in an infringement action, and that it is not possible to invoke directly fundamental rights and freedoms or a ‘fair use’ of a work to trump the application of copyright's exclusive rights. 

In this sense, like the CJEU, the Paris court confirmed that the balance between different rights and freedoms is internal to the copyright system, and has been undertaken by legislature when envisaging available copyright exceptions and limitations. 

In all this, the court also considered that the unlicensed use of the photograph by Koons was not “necessary” for the exercise of his own freedom of expression. 

Parody 

The defendant had also raised an argument that the use at issue could qualify as parody. The court referred to the 2014 CJEU Deckmyn decision [Katposts here] and the requirements that, for a work to be considered a parody, first, it must evoke an existing work while being noticeably different from it and, second, it must constitute an expression of humour or mockery. 

The court considered that neither requirement would be fulfilled in the case at issue. 

'Chats', by Merpel

Comment 

The decision appears correct from a substantial standpoint and is also compliant with case law of the CJEU. The court correctly applied the Painer test (though it did not expressly refer to that decision) for determining originality of a photograph, by considering the ‘free and creative choices’ that the photographer had made in the pre-shooting phase, when taking the photograph, and in the post-production phase.

It also appropriately applied (again, without mentioning them expressly), the CJEU holdings in Funke Medien, Spiegel Online, and Pelham. 

In all this, the most interesting aspect of the decision probably relates to the application of the CJEU Deckmyn decision. As mentioned, one of the characteristics of a parody is that it must constitute an expression of humour or mockery. The CJEU did not clarify whether this requirement is fulfilled when an alleged parody pursues a humorous intent, or whether it is also required that it achieves it (as the Advocate General had suggested in his Opinion). 

If the test was ‘intent’, then the exception under Article 5(3)(k) of the InfoSoc Directive would be broader than if a humorous ‘effect’ was also required. Above all, requiring just intent would be better compliant with the need to safeguard parody as a means to exercise freedom of expression. As I discus at greater length here, the difficulties that might arise should a humorous effect be required, lead to the conclusion the correct test under Deckmyn is that of a humorous ‘intent’. 

In its decision the Paris Court of Appeal suggested that both intent and effect might fall within the concept of ‘expression of humour or mockery’ when it stated that: “La parodie doit aussi présenter un caractère humoristique, faire oeuvre de raillerie ou provoquer le rire” (“The parody must also have a humorous character, make fun of or provoke laughter”). So, an acceptable parody might perhaps be both one that makes fun without necessarily provoking laughter and one that provokes laughter without necessarily making fun. This might be an interesting take worth elaborating further in future case law. In all this, however, neither was the case of ‘Naked’.

The IPKat thanked Stéphanie Legrand, who represented the Bauret estate in the proceedings, for kindly providing a copy of the decision of the Paris Court of Appeal

THE COPYKAT

French media organisations have lodged a complaint against Google with the country's competition authority in a move over the US internet giant's refusal to pay for displaying their content. In fact the internet platform has taken the decision not to show their content at all - which in turn has reduced traffic to those sites.  Earlier this year France implemented the recent EU copyright reforms - one aim of which was to ensure publishers are compensated when their work is displayed online.  Google won't pay - but with the law now in place will only display content if they are granted gratis permission. And the APIG press alliance is not happy. Not happy at all - not least because their members have lost visibility and presumably advertising revenue - and the media organisations say the giant is abusing its dominant position in the market. French President Emmanuel Macron has already voiced his support for the press, saying that no company can "break free" of the law in France.''

A Colombian writer is appealing a Miami federal court’s ruling that Netflix's hit show “Narcos” does not infringe copyright in her memoir about her experiences with drug lord Pablo Escobar. The US District Court in Florida said that the common aspects of two scenes from “Narcos” and Virginia Vallejo’s book “Amando a Pablo, Odiando a Escobar” were factual -and not protectable. The case will go to the Eleventh Circuit Court of Appeals. 

A new report from the European Union's Intellectual Property Office that between 2017 and 2018, overall access to pirated content in the EU fell by 15.1% on average, and shows that online piracy among young internet users continues to decline - with a major factor being the development of legal and accessible music, video and gaming platforms. Of course piracy amongst  the 15-24 year generation hasn't gone away from an age group where 97% stream or download music, 94% stream or download movies and TV series, 92% play online video  games,  and 79% who find other TV shows and sporting events: a third of those surveyed still accessed at least some of their online content from unlicensed sources, but this number is in decline particularly with music. The report says that young people will still find illegal sources of material they cannot easily access legally - in particular movies, TV shows and sport. More here.

The High Court in London has found that the patterns on the lid of a make-up powder palette and embossed on the powder itself could constitute protectable copyright works. The  decision in the case,  Islestarr Holdings Ltd v Aldi Stores Ltd  [2019] EWHC 1473 (Ch) dismissed Aldi’s argument that the ephemerality of the powder design meant that it was not sufficiently fixed to be granted copyright protection. Deputy Master Linwood used the  examples of the copyright protection granted to sand sculptures that are washed away by the tide - and a personalised wedding cake that will be eaten can still constitute a copyright work. The Deputy Judge held that Aldi had no real prospect of successfully defending Islestarr's claim for copyright infringement of each design. More from Hugo Cox on this case here.

Fashion firm Marc Jacobs has newly submitted new arguments as to why it has not infringed the intellectual property rights of Nirvana by selling a t-shirt that featured a version of the wobbly face image that was a staple of the band's merchandise. Marc Jacobs has so far failed to have Nirvana LLC's claim dismissed with the judge overseeing the case ruling  "a review of the images confirms that the allegation as to substantial similarity is sufficient". Now Marc Jacobs has now filed some new documents with the courts that include copyright and trademark law technicalities, and a challenge to whether or bot the claimant owns the original wobbly face image. On subsistence, Marc Jacobs cite rules and practices of the US Copyright Office which, they say, confirm that Nirvana's wobbly face image does not meet the requirements to be protected by copyright. They also note that the US Patent And Trademark Office refused to register the logo as recently as last summer, and that Nirvana LLC has failed to demonstrate that Kurt Cobain drew the wobbly face, as has been claimed, nor that rights in the drawing passed to the band's company through either explicit or implicit agreement.

And more from the world of fashion - this case from the USA where a Montana based clothing company called All Season All Terrain (ASAT) Outdoors is suing New York-based fashion company Supreme for copyright infringement after Supreme sold clothing printed with a copyrighted camouflage design. ASAT has told the New York District Court.that it has owned the copyright on a camouflage design since it was created in 1985.

A Japanese government panel has now approved a plan to limit the scope of what is considered illegal downloading of any copyrighted work,  including manga, computer games and literary writings, reversing its initial plan to restrict such online activity more broadly. The Cultural Affairs Agency panel said a future amendment to the copyright law would not apply to partial downloads of copyrighted works, such as a few frames from a comic book or a screenshot of a copyrighted image. In the new proposal, the panel said further discussions were needed to decide whether to narrow the scope of illegal acts to the downloading of complete original works, excluding parodies and derivative works, and downloads from piracy websites.

The World Intellectual Property Organisation (WIPO) has called for public comments as part of its process to develop a policy on Artificial Intelligence and Intellectual Property Rights. The call is available here and is open until February 14th 2020.  “Artificial intelligence is set to radically alter the way in which we work and live, with great potential to help us solve common global challenges, but it is also prompting policy questions and challenges,” said WIPO Director General Francis Gurry adding "Machine learning relies on information in the form of electronic data, which is also at the heart of intellectual property and innovation in a global digital economy. I invite everyone with an interest to assist us in formulating the questions that are confronting policy makers and to share with us their expertise in order to have a focused dialogue.

And finally, US audio streaming service TuneIn is appealing against last month’s High Court judgment which it says is “fundamentally bad for freedom of expression on the Internet and cultural diversity” (in the United Kingdom).Tunein is the internet radio service, available online and via an app, which has both free and premium versions. The Kluwer Copyright Blog has more on the decision by Mr Justice Birss in Warner Music & another v TuneIn Inc [2019] EWHC 2923 (ch). 

France: Any Alteration/Modification of a Work in Public Domain is Infringement of Moral Rights

Auguste’s Rodin’s works are now in the public domain. This does not mean that you can do just about anything with them. I wrote a short post about the issue while a guest Kat, and a recent holding from the French highest civil Court, the Cour de cassation, gives me an opportunity to revisit the issue.

Mr. Guy X. reproduced and sold several sculptures of Rodin, now in the public domain, from May 1999 to September 2000. The statues were reproduced by pouring bronze on Rodin’s former foundry models. Mr. X was sued in criminal court for having presented these works as original pieces. He was found guilty of counterfeiting and selling counterfeit works, and was ordered to indemnify the Rodin Museum in Paris, a civil party to the case, for infringement of the author's moral rights.

Mr. X also reproduced works from Emile Bernard, Malvin Hoffman, Gaston d'Illiers, Pierre Lenordez, François Pompon, Louis Riche and Irénée Rochard which were still protected by French copyright (droit d’auteur). The Cour de cassation unsurprisingly confirmed that reproducing these works without permission was infringement.

As for the works in the public domain, Mr. X argued that, while article 121-1 of the French intellectual property Code indeed provides authors the right of respect in one’s name, of one’s quality and of one’s work, a set of moral rights which are perpetual, inalienable and imprescriptible, he had not infringed on Rodin’s moral rights as the works he had produced were of sufficient of quality as to not infring on these moral rights.

The Paris Court of appeals had upheld the judgment against Mr. X. and found that he had indeed forged works in the public domain, finding that Mr. X. wanted to confuse the public about the origin of the works in such a way as to suggest that they were indeed original sculptures, made during Rodin’s lifetime, whereas they were actually made by over moldings.

The process used by Mr. X “necessarily entails a change in the size of the original work, an attenuation of the precision of the features, a weakening of the vigor of the forms created, and that several of the works at stake had distorted the original sculptures, by modifying pedestals of the structures, removing, adding or inverting an element, or by smoothing the coats of the animals, or because of a defective patina.”

The Cour de cassation approved the reasoning of the Court of appeals, because “infringement of a work which has fallen into the public domain consists of any alteration or modification of the original work.”

While the facts of the case have established that Mr. X wanted to deceive customers, the holding of the Cour de cassation is so broad that it may encompass any alteration or modification of a work in the public domain, even if such alteration is made with no intention whatsoever of deceiving the public. How should we interpret this rather lapidary ruling? Does that mean that any alteration of a work in the public domain is an infringement, but that there is a benevolent tolerance if such modification is not made to deceive the public? Or does it mean that moral rights are so strong that they prevent any modification of any work, in perpetuity?

The Cour de cassation nevertheless found that the Court of appeals did not apply the law correctly when it had found that several of Mr. X’s works which indeed reproduced works by Rodin were infringing, as the Court had not researched if these reproductions were infringing the moral rights of the author, and “broke” (casser) the Court of appeals ruling. This holding further indicates that any reproduction which would not be an exact copy of the work in the public domain would be infringing.

The CJEU decision in Soulier: what does it mean for laws other than the French one on out-of-print books?

As reported by the IPKat through a breaking news post, yesterday the Court of Justice of the European Union (CJEU) issued its decision in Soulier and Doke, C-301/15. This is a further updated posted by Eleonora Rosati on the IPKat on the same case, and one we though we shoukd share in the 1709 Blog.

This was a reference for a preliminary ruling from the French Conseil d’État (Council of State) and concerned the compatibility with EU law [read: the InfoSoc Directive] of the 2012 French law to allow and regulate the digital exploitation of out-of-print 20th century books.

The late Marc Soulier, also known as Ayerdhal

As explained more at length here, by introducing into the French Code de la propriété intellectuelle (CPI) a new chapter [Chapter IV - Articles L 134-1 to L 134-9, subsequently amended] to Title III of Book I, this piece of legislation has vested approved collecting societies with the right to authorise the reproduction and the representation in digital form of out-of-print books, while allowing the authors of those books, or their successors in title, to oppose or put an end to that practice subject to certain conditions. 

More specifically, the relevant implementing decree has established a legal framework intended to encourage the digital exploitation of works reproduced in books published in France before 1 January 2001 which are no longer commercially distributed by a publisher and are not published in print or digital format. In that case the right to authorise the reproduction or performance of those books in digital format is exercised, six months after their registration in a publicly accessible database for which the National Library of France is responsible, by collecting societies approved to do so by the Ministry of Culture.

In yesterday's post, I expressed the view that this new CJEU decision might have far-reaching implications, that go well beyond the sole piece of legislation at the centre of the case.

After reading the decision, this seems indeed to be the case.

What the CJEU said

Preliminary remarks

In its 53-paragraph decision, also clarifying that the case had nothing to do with copyright exceptions [so that, in line with the Opinion, here, of Advocate General (AG) Wathelet, Article 5 of the InfoSoc Directive would be irrelevant], the Court noted that the national legislation at issue would call into consideration: (1) the right of reproduction within the meaning of Article 2(a) of the InfoSoc Directive; and (2) the right to authorise the representation under that form and that such a representation constitutes a communication to the public within the meaning of Article 3(1) of that directive.

The actual question referred by the French court should be therefore read as asking whether Article 2(a) and Article 3(1) of the InfoSoc Directive preclude national legislation that gives an approved collecting society the right to authorise the reproduction and communication to the public, in digital form, of out-of-print books, while allowing the authors of those books or their successors in title to oppose or put an end to that practice on the conditions that that legislation lays down.

The other author
at the centre of the case:
Sara Doke

Broad and preventive rights

The Court noted at the outset that the protection conferred by Articles 2(a) and 3(1) of the InfoSoc Directive must be given a broad interpretation. It follows [para 31] that, in line with the Berne Convention, “that protection must be understood, in particular, as not being limited to the enjoyment of the rights guaranteed by Article 2(a) and Article 3(1) of Directive 2001/29, but as also extending to the exercise of those rights.”

The Court then recalled that [para 33] such exclusive rights are preventive in nature, in the sense that any reproduction or communication to the public of a work by a third party requires the prior consent of its author.

The most straightforward consequence of this is that [para 34], subject to the exceptions and limitations laid down exhaustively in Article 5, any use of a work carried out by a third party without such prior consent (of the author) must be regarded as infringing copyright in that work. 

The form and substance of consent

This said, the Court conceded [para 35] that neither Article 2(a) nor Article 3(1) specify the way in which the prior consent of the author must be expressed: those provisions do not require such consent to be necessarily expressed explicitly. Hence, those provisions also allow that consent to be expressed implicitly. An example - said the Court - is what happens in the case of communication to the public in an online environment with the (psychological) notion of ‘new public’ [para 36], as adopted in Svensson.

However, [paras 37-40]

“[T]he objective of increased protection of authors to which recital 9 of Directive 2001/29 refers implies that the circumstances in which implicit consent can be admitted must be strictly defined in order not to deprive of effect the very principle of the author’s prior consent.

In particular, every author must actually be informed of the future use of his work by a third party and the means at his disposal to prohibit it if he so wishes.

Failing any actual prior information relating to that future use, the author is unable to adopt a position on it and, therefore, to prohibit it, if necessary, so that the very existence of his implicit consent appears purely hypothetical in that regard.

Consequently, without guarantees ensuring that authors are actually informed as to the envisaged use of their works and the means at their disposal to prohibit it, it is de facto impossible for them to adopt any position whatsoever as to such use.”

Having said so, the Court turned to consideration of the French law, and noted how that legislation does not appear to offer a mechanism ensuring that authors are actually and individually informed. Therefore, it is not inconceivable that some of the authors concerned are not, in reality, even aware of the envisaged use of their works and, therefore, that they are not able to adopt a position, one way or the other, on it. In those circumstances, a mere lack of opposition on their part cannot be regarded as the expression of their implicit consent to that use.

Writer's block for Merpel

But initiatives on out-of-commerce works are not completely out

In all this, the Court did not place an absolute ban on future legislative interventions based on the InfoSoc Directive [and it would seem also on other pieces of legislation, eg the recent proposal of the EU Commission for a Directive on copyright in the Digital Single Market, here]. In fact [para 45]:

“Admittedly, Directive 2001/29 does not preclude national legislation, such as that at issue in the main proceedings, from pursuing an objective such as the digital exploitation of out-of-print books in the cultural interest of consumers and of society as a whole. However, the pursuit of that objective and of that interest cannot justify a derogation not provided for by the EU legislature to the protection that authors are ensured by that directive.”

Removing consent

The Court also added that the InfoSoc Directive does not prohibit Member States from granting certain rights or certain benefits to third parties, such as publishers, as long as those rights and benefits do not harm the rights which that directive gives exclusively to authors. 

When the author of a work decides to put an end to the future exploitation of that work in a digital format, that right must be capable of being exercised:

a)  without having to depend, in certain cases, on the concurrent will of persons other than those to whom that author had given prior authorisation to proceed with such a digital exploitation and, thus, on the agreement of the publisher holding only the rights of exploitation of that work in a printed format [para 49]; and

b)  without being subject to any particular formality [para 50].

In conclusion

Article 2(a) and Article 3(1) of the InfoSoc Directive must be interpreted as precluding national legislation that gives an approved collecting society the right to authorise the reproduction and communication to the public in digital form of ‘out-of-print’ books, namely, books published in France before 1 January 2001 which are no longer commercially distributed by a publisher and are not currently published in print or in digital form, while allowing the authors of those books, or their successors in title, to oppose or put an end to that practice, on the conditions that that legislation lays down.

Comment

Yesterday’s decision marked an important moment in CJEU copyright jurisprudence. 

Any freedom left?

From an EU perspective

Although the Court relied on concepts also employed in previous decisions [eg that economic rights must be interpreted broadly and considered preventive in nature], it used the so called author principle [ie the principle that, as a general rule, the author is also the first owner of copyright] to push the boundaries of EU harmonisation further and, by doing so, restrict Member States' legislative freedom.

First, despite contrasting hints in the past in which the CJEU appeared to employ the terms 'authors' and 'rightholders' interchangeably, the Court reinforced the idea that who the InfoSoc Directive intends to grant a 'high level of protection' to is authors.

Secondly, although not referring explicitly to the notion of EU preemption [on which see also here], the CJEU fully embraced it. In this sense, there is no gap between the CJEU judgment and the AG Opinion [paras 55-57], which rejects the view that the national legislation at issue would not affect the protection of copyright because it simply constitutes an arrangement for managing certain rights which the InfoSoc Directive does not preclude. What matters - for both the CJEU and the AG - is whether authors have had the possibility to express their individual consent. 

From a practical perspective

It would appear that, post-Soulier and lacking specific 'EU-endorsed authorisation' to the contrary, national legislative initiatives (including licensing schemes) that fail to incorporate appropriate and streamlined procedures to (1) inform authors of possible future uses of their works, and (2) obtain their relevant, individual, consent are likely to be regarded as incompatible with EU law.

In light of all this one may wonder whether another piece of French legislation, ie the law on freedom of creation, architecture and cultural heritage, is against EU law. 

As this blog reported, among other things this introduced new provisions [Articles L 136-1 to 136-4] into the CPI to regulate the exercise of the exclusive rights of reproduction and representation vis-à-vis automated image referencing services. Article 136-2(1) CPI clarifies that the publication of a plastic artwork, graphic or photographic work by an online communication service is subject to the consent - not of authors - but rather one or more collecting societies appointed to this end by the French Ministry of Culture. It would appear that an author only has the right to indicate which collecting society would undertake this task (lacking such indication, then a presumption would operate in favour of a designated collecting society), but not also authorise the relevant collecting society to authorise the making of acts restricted by copyright.

On a similar note, as suggested by Sylvie Nérisson on the Kluwer Copyright Blog at the time of the AG Opinon, also certain national licensing schemes - including systems of extended collective licensing - may fall short of what EU law requires in terms of authors' consent.  

All in all ... a subtle message from the CJEU

Turning now to the provisions on out-of-commerce works as contained in the recently proposed Directive on copyright in the Digital Single Market, Article 7(1) states that:

"Member States shall provide that when a collective management organisation, on behalf of its members, concludes a non-exclusive licence for non-commercial purposes with a cultural heritage institution for the digitisation, distribution, communication to the public or making available of out-of-commerce works or other subject-matter permanently in the collection of the institution, such a non-exclusive licence may be extended or presumed to apply to rightholders of the same category as those covered by the licence who are not represented by the collective management organisation, provided that: 

(a) the collective management organisation is, on the basis of mandates from rightholders, broadly representative of rightholders in the category of works or other subject-matter and of the rights which are the subject of the licence; 

(b) equal treatment is guaranteed to all rightholders in relation to the terms of the licence; 

(c) all rightholders may at any time object to their works or other subject-matter being deemed to be out of commerce and exclude the application of the licence to their works or other subject-matter."

One may question whether the extension of the licence also to non-members and the fact that the mechanism envisaged by the proposed directive is opting-out rather than opting-in, is fully compliant with Soulier.

A conclusion of the conclusion

In all this, yesterday's CJEU decision does not necessarily mean the end for all these sorts of initiatives - whether at the national or EU levels. 

However, what is (now?) required is a more careful approach by relevant legislators to ensure that the principles established at the level of the InfoSoc Directive and elaborated further in yesterday's CJEU decision are fully respected. 

As a final note - although the CJEU did not bring fundamental rights into the picture this time - as I also discussed here, these may matter in a situation in which authors are deprived of their ability to authorise the making of acts restricted by copyright. In fact, it may be argued that all this could amount to a deprivation of authors' fundamental right to intellectual property protection, as per Article 17(2) of the Charter of Fundamental Rights of the European Union. 

--
Posted By Eleonora Rosati to The IPKat on 11/17/2016 09:35:00 am

French Representatives Discuss EU Commission Copyright Proposal

The Commission of European Affairs of the French lower Chamber, the Assemblée Nationale, examined last week a report on copyright protection in the European Union (EU), written by Representatives Marietta Karamanli and Hervé Gaymard (the Rapporteurs).

The Commission published on September 14 its proposal to update the EU copyright laws, which include a proposal for a Directive on Copyright in the Digital Single Market  (see here for Eleonora’s review on the IPKat blog). The Representatives’ report was written before the Commission publication, but it anticipated the proposals. The Rapporteurs, however, do not seem quite interested in change. They do not believe it is necessary to modify Directive 2001/29, the InfoSoc Directive, and even believe it would be “inauspicious,” as the InfoSoc Directive“ does not constitute an obstacle to the construction of a large digital single market” as envisioned by the European Commission.

Mandatory harmonization of exceptions? Well… peut-être…

The Rapporteurs are against mandatory harmonization of exceptions of the rights of reproduction and communication to the public in all the Member States, as it had been recommended by Julia Reda’s report, because “[n]ational flexibility in this field is a prerequisite for the development of a stable environment for creators and conducive to creativity.”

During the October 18 meeting of the Commission of European Affairs (video is here), Hervé Gaymard stressed the importance of strictly supervising these exceptions (encadrement strict), which choice and implementation, according to him, are best left to the Member States

As of now, the InfoSoc Directive lays out twenty exceptions to the exclusive rights of copyright holders which Member States may or may not chose to implement in their laws. The InfoSoc Directive’s only mandatory exception is laid out in its article 5.1., which directs Member States to exempt from the reproduction right temporary acts of reproduction which sole purpose is to enable a transmission in a network between third parties by an intermediary, or a lawful use, such, for example, “caches” and other technical copies made by users of computers for faster access by websites. Articles 5.2 and 5.3 of the Directive provides a list of exceptions which Member States may choose to implement. Recital 32 of the InfoSoc Directive specifies that this list of optional exceptions is “exhaustive.”

This led to Member States having quite a different copyright framework. We saw last week that France recently, but somewhat reluctantly, implemented the ‘freedom of panorama’ law in its IP Code. Other Member States implemented this exception more broadly, or not at all.

The EU Commission noted in its 2015 Communication towards a modern, more European copyright framework that:

“[t]he fragmentation of copyright rules in the EU is particularly visible in the area of exceptions. The exceptions set out in EU law are, in most cases, optional for Member States to implement. Often exceptions are not defined in detail. As a consequence, an exception in the law of one Member State may not exist in a neighbouring one, or be subject to different conditions or vary in scope. In some cases the implementation of a given exception in Member States' law is narrower than what EU law permits. Most exceptions do not have effect beyond a given Member State. “

New mandatory exceptions may be ahead. Article 3.1 of the proposal for a new Directive would create a mandatory exception “for reproductions and extractions made by research organisations in order to carry out text and data mining of works or other subject matter to which they have lawful access for the purposes of scientific research.” This new exception was discussed at the October 18 meeting, and Hervé Gaymard is favorable to it, but only if it leads to non-commercial works.

Article 4 of the new directive would provide an exception for “the digital use of works and other subject-matter for the sole purpose of illustration for teaching.” Hervé Gaymard declared to be favorable to this exception, as MOOCs must be allowed to develop, but only if in accordance to the French law and if it is not, for example, detrimental to the French school books market.

Article 5 of the new Directive would provide an exception for “cultural heritage institutions, to make copies of any works or other subject-matter that are permanently in their collections, in any format or medium, for the sole purpose of the preservation.” Hervé Gaymard is in favor of this exception, which would benefit France’s patrimony.

Mr. Gaymard concluded that the Rapporteurs were in favor of new mandatory exceptions, but only if they were they are framed, proportionate to the aim pursued and if they are not detrimental to creators’ income.

No fair use, non!

The Rapporteurs are suspicious of the American fair use, because it is unpredictable and “potentially unfavorable to creation” and is even “likely to cause significant damage to the authors.” The authors cite the Hargreaves Review of Intellectual Property and Growth as a proof of the “potentially harmful nature” of fair use. Indeed, this report had concluded that the UK was better off without fair use, as “significant difficulties would arise in any attempt to transpose US style Fair Use into European law “(see paragraph 5.19 of the Hargreaves Review).

The Hargreaves Review supported the use of the exceptions system as applied in the EU, rather than the US fair use system, although interpreting this report as saying that fair use is of a “harmful nature”, as the Rapporteurs did, may be a bit of a stretch. The Hargreaves Review presented some of the positive aspects provided by fair use, which the Rapporteurs chose not to report. One of the positive aspects of fair use reported by the Hargreaves Report is that it allows US judges “to take a view as to whether emerging activities in relation to copyright works should legitimately fall within the scope of copyright protection or not” without the need of the intervention of the legislature. One can understand that the Rapporteurs are not keen on giving such powers to the French courts. France is, after all, a civil law country, not a common law country.

Data portability, pourquoi pas?

Finally, the Rapporteurs “welcom[ed] the proposal for a regulation for cross-border portability of content, which will allow users to enjoy, wherever they are in the territory of the Union, the programs to which they subscribed in their State of habitual residence. But they stress the idea that portability should be strictly temporary, and that temporality must be a precise definition, without which the settlement would disproportionately infringe the principle of territoriality of rights, which is the base of the financing system for the creation, notably in France.”

This is only the start of the discussion about the EU Commission proposals. Stay tuned…

Picture courtesy of Flickr user Cata Fuentealba under a CC BY 2.0 license.