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Saturday, 10 January 2015

Can you reproduce Charlie Hebdo cartoons without permission?

What do you need to do to
reproduce this work
without permission?
This morning from Katfriend and comics lover Julia Powles (University of Cambridge) came an interesting IP-related question concerning the horrible tragedy that happened in Paris this week. As IPKat readers might know, following the attack to the offices of satirical newspaper Charlie Hebdodebate has ensued regarding the opportunity or not of reprinting its irreverent cartoons.

While Belgian newspaper L'Echo, and a number of German and Italian publications have re-printed a number of covers of this French newspaper [see here for a broader collection], both major US, eg The New York Timesand UK publications, eg The Guardian, have decided against doing so. Apparently the reason why, for instance, the NYT Editor (followed by The Guardian) decided not to run the covers was "because he had to consider foremost the sensibilities of Times readers, especially its Muslim readers. To many of them, he said, depictions of the prophet Muhammad are sacrilegious; those that are meant to mock even more so."

This Kat has noticed that not all the publications that reproduced the cartoons came with a disclaimer that a permission to do so had been obtained from the relevant copyright owner. For instance, if you look at the article appeared on Buzzfeed, you see that the authors of the relevant gallery took the images from The Daily Beast, which for its part does not carry any notice that the relevant rights to reproduce the cartoons have been cleared with Charlie Hebdo [this is likely to be the owner of copyright in its employees' artistic works].

Of course, there is no copyright dispute - whether actual or merely potential - in sight. However, in cases of this sort, is it OK to reproduce copyright-protected works (and also either communicate them to the public in the event of online publications, or distribute them in the case of print publications) without permission from the relevant copyright owner? In other words: would that be a copyright infringement or would copyright exceptions apply?

What does French law say?

In the case of Charlie Hebdo, let's assume that French copyright law, as enshrined in the Code de la propriété intellectuelle, is the applicable law.

It is therefore necessary to look at the key provision on exceptions, ie Article L 122-5 of the Code, and see which [for the benefit of non-EU-based readers it is important to clarify that in EU Member States copyright exceptions are a closed list, as per Article 5 of the InfoSoc Directive] exception(s) could be invoked in the case of unauthorised reproduction (and communication to the public/distribution) of an artistic work by a press publication.

This Kat is by no means an expert in French copyright [so any insights from French readers would be greatly appreciated], but thinks that the potentially applicable exceptions could be [WARNING: Kat-translation!]:
  • Article L 122-5, No 3 [likely derived from Article 5(3)(d) of the InfoSoc Directive], which allows, provided that the name of the author and the source are clearly indicated:
    • (lett a) the analysis and short quotation of a work because of the critical, polemical, educational, scientific or information character of the (new) work in which it is incorporated; 
    • (lett b) press reviews.
  • Article L 122-5 No 9 [likely derived from Article 5(3)(c) of the InfoSoc Directive], which allows - among other things and subject to the indication of the name of the author - the reproduction, as a whole or in part, of a graphic work of art, by print, broadcast or online, for reasons of exclusive and immediate information directly related to the work. The exception does not apply to works, notably photographs or drawings, that in themselves are meant to convey information [this bit is pretty similar to s30(2) of the UK Copyright, Designs and Patents Act 1988].  
If those above are the exceptions that could be potentially invoked by those publications that have not secured a licence from Charlie Hebdo to reproduce its drawings, the question then becomes whether any such defence could actually apply.

Do not forget that you must indicate
the source
and the author
Criticism, review and quotation

With regard to the exception within Article L 122-5, No 3, in some - if not most - cases it might be difficult to claim successfully that the newspaper articles discussing the Charlie Hebdo tragedy contained a critical analysis of the cartoons per se. While this circumstance may make (lett a) more difficult to invoke successfully, the loose wording of (lett b) might come in handy. 

In addition, it is not even required that the press reviews are protected by copyright per se. This could be useful when it comes to situations, eg the case of The Daily Beast, in which you have merely a gallery of artistic works. You might argue that that is a database protected by copyright [is it?], but that would not be vital to determining the actual applicability of the exception within Article 5(3)(d) of the InfoSoc Directive, as both Advocate General (AG) Trstenjak and the Court of Justice of the European Union clarified in Painer [here]. In particular in that case (concerning the kidnapping of Austrian girl Natasha Kampusch) the AG noted that Article 5(3)(d) [similarly to its French equivalent] does not require that a press report is protected by copyright, also because "none of those possible constraints [in Article 5(3)(d)] are based on the fundamental idea that the limitation of copyright in a work can be granted only for the benefit of another work." [para 185] Above all "[t]he possible constraint under Article 5(3)(d) of the [InfoSoc] directive must be seen against the background of the interest in a free intellectual analysis. It thus serves in particular to realise freedom of opinion and freedom of the press. Statements which are themselves protected by copyright may certainly come under the protection afforded by these fundamental rights." [para 186]

This said, in order to invoke the defence in Article L 122-5 No 3, it is necessary to indicate not just the source of the work, but also its author [not copyright owner!]. Has this happened? This Kat suspects that in most cases the answer would be ‘non!’. Importantly, unlike Article 5(3)(d) of the InfoSoc Directive, the French provision does not exempt one not from complying with this requirement where indication of the source and author “turns out to be impossible”.

... are attached to any copyright exception
News reporting

The exception within Article L 122-5 No 9 looks more difficult to invoke. 

First, because the exception makes an exception for "oeuvres, notamment photographiques ou d'illustration". However the same provision clarifies that such oeuvres must be such as to convey information in themselves. To exemplify this would mean that, similarly to what the law is in the UK, unauthorised reproduction of photographs of the Charlie Hebdo attack in a press article might not qualify for Article L 122-5 No 9 exception. However, one might argue that Charlie Hebdo cartoons in themselves are not meant to convey information about the shooting, ie the actual piece of news most press articles have been about. 

Nonetheless the exception in Article L 122-5 No 9 also requires that the use of a work is made for reasons of exclusive and immediate information directly related to that work. Could one argue that this was the case here, especially considering that (1) a number of cartoons, not just one, has been published, and (2) publication has not necessarily occurred just in the immediacy of the attack?

Finally, Article L 122-5 No 9 requires one to indicate the name of the author [not the copyright owner]. Unlike Article 5(3)(c) of the InfoSoc Directive, this provision does not provide that compliance with such requirement can be avoided where this “turns out to be impossible”.

So?

It would appear that unauthorised reproduction of Charlie Hebdo artistic works by press publications would not really qualify for the news reporting exception under French copyright law.

Nonetheless such unauthorised publication could be saved by the wonderfully loose language of Article L 122-5 No 3. However, similarly to Article L 122-5 No 9, Article L 122-5 No 3 requires that a number of conditions are met, notably that (not just the source but also) the author of the work is indicated. Is this what happened in the majority of cases? Probably not … [just see here for an example]

In any case it is well-known that from great power looseness comes great responsibility, so it would be very helpful if French readers could provide references to relevant case law, so to appreciate how courts have interpreted and applied the "press reviews" exception.

7 comments:

Anonymous said...

Surely the relevant law (outside France) will generally not be French law, but rather the lex loci protectionis (as per Berne 5.2), including whatever exceptions and exclusions happen locally to be applicable.

(Hence the fracturing effect of the current patchwork of laws on exceptions across the EU, likely to be addressed by the next EU Copyright Directive).

In particular, in the United States the relevant law will be U.S. law, as eg it was in the final decision in Bridgeman vs Corel, when the choice of laws point was argued.

Under U.S. law I would have thought this probably is fair use, at least to the extent that it adds to reader understanding of the nature of Charlie Hebdo, or of the cartoons, and that this is relevant to the article.

Eleonora Rosati said...

Thanks for your comment, Anonymous.

I agree with you that, should US copyright apply, the reproduction of cartoons would be protected as fair use (while I do not think that, should UK law apply, this would be considered fair dealing).

However, I am not so sure that the approach you suggest would be followed by any court in any case, especially when it comes to digital dissemination of works. Just think of approaches like targeting, or those judicial approaches (mentioned by Goldstein and Hugenholtz in their 'International Copyright') which have applied the copyright law of the country of origin of the work or the country with which the work has the closest connection.

Anonymous said...

If this cartoon was published in a British newspaper, in print (ignore the issue of the internet and targeting etc.) then this infringement would be subject to the law under the CDPA.

Anonymous said...

I agree with the other anonymous contributor that the lex loci protectionis is the relevant law in cases concerning alleged copyright infringement. This actually follows from the principle of national treatment layed down in article 5 paragraph 1 of the Berne Convention (see extensively on this topic S.J. Schaafsma, Intellectual property in the conflict of laws. The hidden conflict-of-law rule in the principle of national treatment (in Dutch but with a summary in both English and French)). In any case, for the European Union it is clear that courts must apply the lex loci protectionis, as this is explicitly layed down (I would say repeated as it already follows from the BC) in article 8 of the Rome II Regulation on the law applicable to non-contractual obligations (par. 1: "The law applicable to a non-contractual obligation arising from an infringement of an intellectual property right shall be the law of the country for which protection is claimed."). I haven't looked into the practice in other countries, but in the Netherlands courts actually do apply the lex loci protectionis (and rightly so). Schaafsma points out that Dutch courts will often, in difficult cases where a large number of different foreign laws have to be taken into account, apply a "gelijkheidsvermoeden", a presumption of equality, where the court presumes the foreign law does not deviate significantly from the court's national law, unless the interested party demonstrates otherwise. See for example this ruling of the district court of The Hague where the court presumes the full harmonization of EU law concerning what defines a work and what constitutes infringement. Where countries have their copyright law harmonised to a large extent, such as in the European Union, this can be an effective method of dealing with the problem of having to apply multiple foreign legal systems, most noticeably in online copyright infringement. In other cases Schaafsma suggests courts can, as you also mention, apply targeting. This is compatible with the lex loci protectionis if it is the rightsholder claiming protection for that country. You could argue abuse of process (not sure if this is the right term, we call it "misbruik van recht" in Dutch) if the rightsholder, with the intention of having the alleged infringing content removed by means of a "central attack", claims protection for a country unrelated to the issue (i.e. at which the website is not targeted).

Seeing as the BC and (in the case of the EU) the Rome II Regulation state that courts have to apply the lex loci protectionis, I don't see how they could apply the law of the country of origin of the work unless that happens to be the law of the country for which protection is claimed. The same goes for applying the law of the country with which the work has the closest connection.

Applying the lex loci protectionis in my opinion does not constitute a big problem when you want to get an injunction (for the rightsholder in cases of infringement on the internet, this even allows for a "central attack" (but see above)). Unfortunately, the Court of Justice in its Pinckney judgment (on which you posted here) ruled that the national courts can only determine the damage caused in the Member State within which it is situated, effectively forcing rightsholders to sue in every court where they want to claim damages. This is not a problem that arises from applying the lex loci protectionis though, but one arising from jurisdiction.

Charlotte de Jouffroy said...

Hello,

The notion of « press review » has been interpreted very restrictively by French case law.

It has been defined as a « joint and comparative representation of several comments made by journalists and related to a same theme or event » (Crim. 30 January 1978, RIDA 1980 p.146 ; CA Paris, 4e ch., 25 March 1982 : RIDA avr. 1982, p. 170).

Thus, two conditions are essentials regarding the qualification for the news reporting exception under French copyright law:
• Plurality of articles (It seems that two articles are not enough : CA Toulouse, 3e ch., 13 June 2002 : Propr. intell. 2004, p. 384) ;
• The purpose of the use : Articles must be linked to the same event related to the immediate information (the reproduction of several articles concerning different topics can not benefit from the news reporting exception even if they are all related to the immediate information : TGI Nancy, 6 déc. 2010 : RLDI 2011/69)).

regarding to the question of the use of the drawing of Charlie Hebdo, the sole reproduction in cover of a drawing can not benefit from the news reporting exception.

Hope it will help!

Charlotte

Anonymous said...

One further question is whether, even if the economic rights are not infringed, the moral rights of the authors are respected by some reproductions that fail to respect the artistic integrity of the work, namely the censored versions that some US media in particular have circulated...

Eleonora Rosati said...

@Charlotte: Thanks so much for this insight, which is very useful!

@Anonymou on 12 Jan, 10:51: Indeed, especially considering the broad moral rights protection in France and cases like the Asphalt Jungle one (http://www.peteryu.com/intip_msu/turner.pdf), in which the CA Versailles held that the provisions on moral rights are rules of public order, and are therefore mandatorily applied.

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