De Gaulle’s manuscripts: ‘public archives’ and ‘public domain’ – same difference in France?

Charles de Gaulle
Portrait by Donald Sheridan

Last month, the Conseil d’Etat, the highest administrative court in France, declared that the 313 manuscripts and telegrams written by Charles de Gaulle between 11 December 1940 and 11 December 1942 were official public archives belonging to the  state of France (see here in French). As a result, the manuscripts written by the former French President and leader of the Resistance during the Second World War will soon be made available to the public as opposed to becoming part of a private collection. For many historians and public domain enthusiasts, the decision reads as a win.  The dispute was not one of copyright but rather of heritage law, leaving the status of these archives in relation to the (copyright) public domain in need of further clarification. Indeed, war-time copyright material is eligible for a special type of protection in France… Read on for more on this. 

Conseil d'Etat, Paris

The de Gaulle decision reminds us that many of the legal issues regulating the public’s access to historical documents are not just a matter of copyright. In this case, it started with heritage law under the French heritage code (here in French). Article L 212-1 of the Heritage Code specifies that “public archives are inalienable” and “they cannot be owned, either by operation of law or proprietary disposition.”. To enforce this principle, the state may rely on claim under the state archival right that allows demand transfer to the public archive without having to compensate private owners for their loss. 

The previous possessor of de Gaulle’s writings, a company called Aristophil, attempted to defend its title in the manuscripts by arguing that at the time that they were created, namely between December 1940 and December 1941, the Republic of France per se was not a sovereign state, due to the German Occupation that took place between the years 1940 and 1944. The company argued that during this period of occupation, the French Republic ceased to exist, and therefore it could not claim ownership over the works created by its leaders, civil servants, army or any other official representatives. Both the Court of Appeal and the Conseil d’Etat rejected this view, stressing that subsequent decrees declared that the French Republic had maintained its legal existence and sovereignty even during the Nazi occupation. As a result, standard rules regarding ownership over official and historical documents applied without exception.

Champs-Élysées (Paris) under
Nazi occupation

Nothing was said in the case about copyright and such a point of law, if raised, would have most likely been heard and debated before  civil, rather than an administrative jurisdiction  per the applicable laws of jurisdiction and procedures in France.  Declaring documents as ‘national public archives’ is not synonymous with to declaring them be part of the ‘public domain’ within the meaning of copyright. Whilst the telegrams written by de Gaulle may not be within the scope of copyright protection (they may have been too short to constitute the requisite originality as per L 112-4 of the French IP Code), the manuscripts would most likely have been eligible to such protection. When should we expect the expiry of copyright in the manuscripts? 

One might expect to have the usual copyright term apply – nothing more, nothing less. However, for material under copyright during the wars, there is a little bit more to add to the simple calculation of the current standard term of protection (the life of the author plus seventy years). As such, the de Gaulle case draws our attention to one of the quirks of French droit d’auteur.

In both 1919 and 1951, the French government introduced special provisions extending the term of protection for works published during the First and Second World Wars (see Article L223-8 and Article L223-9 of the IP Code respectively). The idea was to compensate right-holders for any disruption in the commercialisation of their work caused by the war.

As a result, the current Article L223-9 of the French IP Code extends the term of copyright protection by 8 years and 120 days for works published before 1 January 1948 and which did not fall into the public domain by 13 August 1941. The provision reads as follows:

“The rights afforded by the above mentioned Act of July 14, 1866 and by Article L123-8 to the heirs and successors in title of the authors, composers and artists shall be extended for a period equal to that which elapsed between September 3, 1939, and January 1, 1948, for all works published before that date and which did not fall into the public domain by August 13, 1941.”

Who says cat can't count?
Cartoon by Metzger

Some of the manuscripts recently acquired by the French government would fall within this category as they were written between 11 December 1940 and 11 December 1942.

At that time, the duration of protection was 50 years following the death of the author (here, 1970) bringing us to 31 December 2021. However, the term of protection was harmonised at the European level and extended to 70 years following the implementation of the 1993 Term Directive (No 93/98/EEC) of 29 October 1993, which has since been repealed and replaced by the 2006 Directive. This 20-year year extension would bring the copyright expiry date of the manuscripts to 31 December 2041 (as per Article L 123-4 referring to L 123-1).

The question is, then, should the war-time term extension be applied, with the result that it will not be before 1 April 2050 that one can reproduce the documents without risking infringement. In this case it would seem that the answer is no. In 2007, the Court of Cassation (here and here) concluded that the war-time term extension was not to be added to the seventy-year term (although exceptions apply in cases where the regime in force before the 2006 EU harmonisation is more favourable to right-holders).