How the French make copyright case law

In common law systems, doctrines are built by laying
one case on top of another -- a little like bricks

An unexpected consequence of last week's copyright debate (noted here) was that, on its conclusion, two members of the IPKat team -- Neil and Jeremy -- found themselves in the back of a London taxi with Asim Singh. For those of you who don't know, Asim is a Paris-based French IP specialist (or "spécialiste en propriété intellectuelle", if you prefer) who had crossed the Channel for the day's big IP events (the seminar on why bad things happen to bad licences, and even to good ones, took place earlier that day: PowerPoints here).  A little-known fact about Asim is that he is actually a Kat himself, in French terms: his email is asingh@leolex.fr and, as is well known, "leo" is the Latin for the biggest cat of all, the lion.

Anyway, in order to pass the time in the taxi with the usual pleasantries, Jeremy asked Asim about judicial law-making in France. Much of the rest of Europe seems to have developed a notion of binding precedent and, with the Court of Justice giving rulings that are absolutely binding on national courts -- even French ones -- surely everyone is now learning how to live with judicial precedent. But how do they cope with this alien doctrine? Asim told us that the French courts were perfectly capable of developing their own case-based doctrine when they chose to do so. When put to proof, this is what he tells us:

"France is quite justifiably often cited a prime example of a written law jurisdiction where precedent and the doctrine of stare decisis play no significant role.

I have indeed both prepared and read numerous court filings covering various issues in intellectual property law that go on for twenty or thirty pages without citing a single decision.
It may therefore come as a surprise to some readers that one of the most important and frequently-used doctrines in French copyright law is entirely judge-made. I refer here to the presumption of ownership that comes into play where a plaintiff who sues a defendant for copyright infringement can prove suitable acts of marketing of the work under its name. Provided that the actual natural person authors have refrained from making any legal challenge to undermine the plaintiff’s claim, the court will, based on this judge-made presumption, acknowledge the plaintiff’s proper standing as presumed owner of the copyright protected work vis-à-vis the alleged infringer. 

Significantly, the presumption is applicable irrespective of the legal classification of the work (collective, collaborative or other). Moreover, the consequence of application of the presumption is merely that the plaintiff’s standing to sue the defendant is recognized, not that he is legally held to be the actual rightsholder much less the author. 

The French have their own way of doing things ...

This presumption was created by the French Supreme Court (Cour de cassation) in 1993 to address the case where defendants had the unfortunate tendency to escape liability simply because the plaintiff had been unable to prove standing either by proving that the work was indeed a collective work (in respect of which the copyright vests in the legal or natural person who oversees the creation and publication) or that he was an assignee under a valid assignment. In this regard, it should be recalled that the legal requirements for proof of a collective work are quite strict, as are those governing copyright assignments. In light of this, the Court created ex nihilo this presumption which merely required that the plaintiff be able to prove that it had marketed the work under his name (and that natural person authors had not made adverse legal claims to ownership) in order for its standing to sue to be recognized and hence the action admissible. 

Over the years, the parameters of the presumption have been refined, but the upshot remains the same: even in the absence of proof that the work is a collective work or that the plaintiff enjoys a valid assignment from the author, its action in copyright infringement against a third-party infringer will be deemed admissible provided that it can adduce proof of acts of commercialization of the work under its name (and in the absence of adverse claims by natural person authors). Needless to say, this presumption has become one of the most oft-cited principles of French copyright law as it is much easier for a plaintiff to meet its burden under the presumption than under strict rules governing rights acquisition. 

Court of Justice decisions in the EU should
be , ideally, both simple and binding ... 

There is no shortage of criticism surrounding the presumption, regarding both its conditions and its scope, but the most fundamental critique is simply that it has no legal foundation. Early on, reference was made to Section L.113-5 of the Intellectual Property Code, but it soon became clear that this reference was somewhat disingenuous. This provision lays down the rule under which the copyright in a collective work vests in the legal (or natural) person who oversees the work’s creation and publication. However, as noted above, the presumption itself specifies that it is intended to apply to all categories of works and is not limited to collective works. It was equally clear that Section L.113-1 of the Intellectual Property Code was of no avail inasmuch as it merely lays down a presumption of authorship (not rightsholding) and applies solely to natural persons. 

It is a fundamental tenet of French law that courts apply, but do not make, law. While there do exist decisions of the Supreme Court (Cour de cassation) in other areas of the law that put unusual or surprising constructions on statutory language, it is singularly unusual for a French court to produce, ex nihilo, a legal construct as it has done in the case of the presumption of ownership in copyright law".

Thanks, Asim! It's good to learn how things get done in other jurisdictions. Merpel says thanks, too, though she's a little sad to learn that cassation has nothing to do with cassata ...