From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Monday, 8 September 2014

Has the CJEU in Deckmyn de facto harmonised moral rights?

"Legitimate interest"
Last week the Court of Justice of the European Union (CJEU) issued its decision in Case C-201/13 Deckmyn [herehere and here].

There is probably no need to recall that this case concerned the notion of parody under Article 5(3)(k) of the InfoSoc Directive, as well as the need to "strike a fair balance" between copyright protection and freedom of expression. With regard to the latter, the Court held [para 31] that the relevant rightholder has "in principle, a legitimate interest in ensuring that the work protected by copyright is not associated" with a parody that conveys a discriminatory message.

This Kat has wondered for a few days what the Court could possibly mean by "legitimate interest" if not "moral rights".  

No moral rights harmonisation in the EU, and yet ...

IPKat readers will remember the Opinion [not yet available in English] of Advocate General Cruz Villalon [here and here] who, as a preliminary observation [para 28], noted that [also note that this a Kat-translation from the Italian version of the Opinion] "the Court is not asked about the notion of «moral rights», as this is an aspect of intellectual property expressly excluded from the scope of the [InfoSoc D]irective. Recital 19 to directive 2001/29 clearly states that «[t]he moral rights of rightholders should be exercised according to the legislation of the Member States and the provisions of [Article 6bis of] the Berne Convention for the Protection of Literary and Artistic Works, of [Article 1 of] the WIPO Copyright Treaty and of [Article 5 of] the WIPO Performances and Phonograms Treaty. Such moral rights remain outside the scope of this Directive» It follows that any decision as to whether moral rights have been infringed falls within the competence of the national court.

And then, there was even a time when
the EU Commission discussed moral rights ...
Those who are passionate about (the history of) copyright policy will also remember that there was a time when it was discussed whether or not moral rights should be harmonised at the EU level. 

The Commission responded in the negative in its 2004 Working Paper: "Although disparities in moral rights protection do exist ... there is no apparent need to harmonise moral rights protection in the Community at this stage."

That document was also remarkable in that it excluded the need to harmonise the originality standard [we know what happened next, courtesy of Infopaq and its progeny] and the exhaustion of rights [a beautiful mess! By the way, have you seen this new Dutch reference to the CJEU?].

Going back to Deckmyn: what legitimate interest might it be not to be associated with an outrageous parody if not that to the respect of one's own rights of attribution and integrity? 

It is thus arguable that, even if moral rights are (formally) outwith the copyright acquis, with its decision the CJEU might have produced some kind of harmonisation in this area too. 

But what kind of harmonisation?

First of all, the Court stated that this "legitimate interest" subsists with regard to parodies that convey a discriminatory message. Secondly, the Court clarified that - not the author - but rather the relevant rightholder - has this "legitimate interest".

Berne-inspired souvenir
Moral rights across EU Member States

The Berne Convention articulates the minimum legal content of moral rights, as developed by continental European case law and doctrine. Article 6bis Berne states that, independently of the author's economic rights, and even after the transfer of the said rights, the author shall have (1) the right to claim authorship of the work, and (2) object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his/her own work, that would be prejudicial to his/her honour or reputation. 

Since the Berne Convention merely provides minimum standards, the way its member states have devised and applied the rights of attribution and integrity varies greatly [see here for a recent Kat-presentation].

Starting with attribution, to any continental copyright lawyer it may be shocking to discover that, for instance, under UK law this right may be only enjoyed (and enforced) when asserted, and that there are categories of authors who do not enjoy moral rights [it is the case of employees: see sections 79(3) and 82(2) CDPA].

As to integrity, while French copyright law apodictically states [Article L-121-1 of the Code de la propriété intellectuelle] that the author has the perpetual and right “au respect de son nom, de sa qualité et de son oeuvre”, other droit d’auteur countries (eg Italy) qualify the right of integrity by limiting it to distortions, mutilations or any other alterations that may be prejudicial to the author’s honour or reputation [Article 20(1) of the Legge sul Diritto d'Autore]. German law [§39(2) of the Urheberrechtsgestez] provides that alterations to a work that the author cannot reasonably refuse shall be permissible.

Similarly to other common law traditions [just think of the US], UK law has been traditionally wary of granting broad protection to moral rights. The right of integrity under UK law draws upon Article 6bis of the Berne Convention, but it is in “apparently narrower termsand was only introduced into UK statutory copyright law in 1988. Section 80 CDPA provides the author with the right not to have his work (done after 1 August 1989) subjected to derogatory treatment. Although reference to ‘derogatory treatment’ had not been originally envisaged for its inclusion in the provision, the final version of Section 80 CDPA defines it as any addition to, deletion from or alteration to or adaptation of the work (other than literary translations and musical arrangements or transcriptions), that amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author.

Unlike other jurisdictions (eg France), under UK law it may appear unlikely that the right of integrity might be infringed by mere use of works out of context, if this does not also involve an addition, deletion, or alteration of the original work that effectively affect the honour or reputation of the author. In this sense, the UK right of integrity is narrower than what is allowed under Article 6bis Berne, that encompasses not just any distortion, mutilation or other modification of a work, but also any other derogatory action. 

While UK understanding of the right of integrity is narrower than in other jurisdictions, it should be noted that the UK currently lacks a statutory defence rooted within freedom of expression [but see here]. This means that alleged infringers of the right of integrity may not be able to rely on defences like fair dealing for parody [which will enter into force on 1 October]criticism or review, or news reporting.

In any case, while under UK law moral rights last as long as the economic rights and may be waived, this not the case in droit d'auteur jurisdictions, where moral rights are "perpétuel, inaliénable et imprescriptible", and cannot be waived. 

Inspirational quote found at the CJEU
Dealing with Deckmyn

Although the CJEU never mentioned the phrase "moral rights" in its judgment, paragraph 31 may be all about them. Yet, this may be a problem.

First, as regards to when such right may be enforced: according to the CJEU, it is when the message of a parody is discriminatory. But is this the only situation when the treatment of one's work may be considered tantamount to a derogatory action in those EU Member States that provide for a parody exception? 

Secondly, the CJEU excluded [para 21] that the notion of parody had to comply with the condition that it could reasonably be attributed to a person other than the author of the original work itself. Yet, this Kat understands that, for instance, in France parodies [subject to a specific exception under Article L-122-5 No 4 of the Code de la propriété intellectuelle], must be transformative and not harm the legitimate author, whether economically or morally. The latter may be the case if the public may be deceived as to the origin of the work. The right of attribution is in fact also about objecting false attribution. How will French (but also UK in certain situations: see Section 84 CDPA) courts accommodate this part of the judgment?

Thirdly, the CJEU said that the relevant rightholder has such "legitimate interest". But moral rights are personal rights of authors, at least in droit d'auteur traditions. When the copyright owner is not the author, how can he/she enforce his/her moral rights now that the Court has acknowledged that rightholders have such "legitimate interest"? Plus, does this legitimate interest of rightholders subsist together with authors' moral rights or rather replace them?

Overall, by rejecting diverging national criteria for assessing a parody, the CJEU has certainly favoured uniformity, but has probably done so at the expenses of the different legal traditions of EU Member States. It will be interesting to see how national courts will deal with Deckmyn and also whether this decision will prompt a return of moral rights to the discussion table of the (next) Commission. 


Thomas Dillon said...

Oh dear. If the Court felt that it had to interpret the exception so as to deny its benefits to a nasty defendant, the obvious answer was to say that the "legitimate interests of the rightholder" under Art. 5(5) included the plaintiff's reputation and moral feelings (leaving droit moraux as such to one side). That would have been revolutionary enough (the Three Step Test in the Directive being arguably a direction to governments, not courts), but at least it would have made sense.

Anonymous said...

"Having messed up the Community trade mark system, the CJEU is now doing the same for copyright and heaven only help us if it gets any further into patent law." Discuss.

Anonymous said...

Thank you for drawing attention to the distinctions (and note that the notion of "moral rights" is especially undeveloped in the US).

Uncle Wiggily said...

Cara Eleonora:

Not to worry. With Scottish secession, the EU could collapse or what's left of the UK may depart from it. Then we won't have to worry our pretty little heads about such details.

Far fetched? Not any more....


Uncle Wiggily

Trevor said...

With a new parody exception on its way in the UK, surely a better question is whether or not the ruling in Deckmyn will affect any fair dealing analysis? I don't think it would, as fair dealing has never been a purely economic test, and the concerns raised by the court of justice seem legitimate in any fair dealing analysis. But I would be interested to know what others think.

Henning said...

Perhaps the reference to 'legitimate interests' can better be understood in light of Art.5:5 of the InfoSoc Directive (which of course imports the 3-step-test that requires, as the third step, that exceptions and limitations under Art.5 "do not unreasonably prejudice the legitimate interests of the rightholder")...

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