tag:blogger.com,1999:blog-5574479.post5013204274003744617..comments2024-03-28T16:45:51.051+00:00Comments on The IPKat: Can you reproduce Charlie Hebdo cartoons without permission? Verónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-5574479.post-37835334566330933542015-01-12T10:58:01.531+00:002015-01-12T10:58:01.531+00:00@Charlotte: Thanks so much for this insight, which...@Charlotte: Thanks so much for this insight, which is very useful!<br /><br />@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. Eleonora Rosatihttps://www.blogger.com/profile/05629420303968805446noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-2436623889702589842015-01-12T10:51:54.977+00:002015-01-12T10:51:54.977+00:00One further question is whether, even if the econo...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...Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-13464471648971784462015-01-12T09:41:49.960+00:002015-01-12T09:41:49.960+00:00Hello,
The notion of « press review » has been in...Hello,<br /><br />The notion of « press review » has been interpreted very restrictively by French case law. <br /><br />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).<br /><br />Thus, two conditions are essentials regarding the qualification for the news reporting exception under French copyright law: <br />• Plurality of articles (It seems that two articles are not enough : CA Toulouse, 3e ch., 13 June 2002 : Propr. intell. 2004, p. 384) ;<br />• 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)).<br /><br />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.<br /><br />Hope it will help!<br /><br />Charlotte<br /><br />Charlotte de Jouffroynoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-34139203320340558242015-01-10T20:05:45.532+00:002015-01-10T20:05:45.532+00:00I agree with the other anonymous contributor that ...I agree with the other anonymous contributor that the <i>lex loci protectionis</i> 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, <a href="https://openaccess.leidenuniv.nl/bitstream/handle/1887/13863/Full%20text%20%28Embargo%21%29.pdf?sequence=2" rel="nofollow">Intellectual property in the conflict of laws. The hidden conflict-of-law rule in the principle of national treatment</a> (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 <i>lex loci protectionis</i>, 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 <i>lex loci protectionis</i> (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 <a href="http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2013:15759" rel="nofollow">this ruling</a> 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 <i>lex loci protectionis</i> 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). <br /><br />Seeing as the BC and (in the case of the EU) the Rome II Regulation state that courts have to apply the <i>lex loci protectionis</i>, 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.<br /><br />Applying the <i>lex loci protectionis</i> 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 <a href="http://ipkitten.blogspot.in/2013/10/breaking-news-pinckney-judgment-just.html" rel="nofollow">here</a>) 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 <i>lex loci protectionis</i> though, but one arising from jurisdiction.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-80991033611057940782015-01-10T18:40:51.337+00:002015-01-10T18:40:51.337+00:00If this cartoon was published in a British newspap...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. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-71707750492353004622015-01-10T15:05:17.788+00:002015-01-10T15:05:17.788+00:00Thanks for your comment, Anonymous.
I agree with...Thanks for your comment, Anonymous. <br /><br />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).<br /><br />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. Eleonora Rosatihttps://www.blogger.com/profile/05629420303968805446noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-70495823702478601402015-01-10T14:30:25.600+00:002015-01-10T14:30:25.600+00:00Surely the relevant law (outside France) will gene...Surely the relevant law (outside France) will generally <i>not</i> be French law, but rather the <i>lex loci protectionis</i> (as per Berne 5.2), including whatever exceptions and exclusions happen locally to be applicable.<br /><br />(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).<br /><br />In particular, in the United States the relevant law will be U.S. law, as eg it was in the final decision in <i>Bridgeman vs Corel</i>, when the choice of laws point was argued.<br /><br />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.Anonymousnoreply@blogger.com