If runway models are performers…is France in breach of its international obligations?

In a recent post, this GuestKat explored the possibility for runway models to claim performers’ rights under UK law (here), concluding  that runway models could make a reasonable claim for performer’s rights protection  under several legal bases. One such basis relies on the definition of "protected performers" under the Rome Convention and WIPO Performance and Phonograms Treaty (WPPT) [as interpreted here]. International treaty or no international treaty, the provisions of the Copyright, Designs and Patents Act (CDPA) in the UK are arguably broad enough to fit runway models within the scope of performers’ rights (see also, Richard Arnold (2016) para 2.17). As such, invoking the Rome Convention and WPPT is most germane in the face of a narrow [conservative?] interpretation of the CDPA.

But the UK is not the only country bound by the Rome Convention and the WPPT.  What about the other signatory countries whose domestic laws have expressly excluded models from the scope of performers’ rights, say like …France? Are they countries  in breach of international IP law? It sure looks like it.

The minimum standard of protection set by the Rome Convention and WPPT

So, focusing on France, we note that both the Rome Convention and the WPPT set minimum standards of protection (in the form of performers’ rights) to any “persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works” (Rome Convention, Article 3(b); WPPT, Article 2(b)). A literal interpretation of this provision concludes that as long as a performance is the interpretation of a ‘work’ in the meaning of copyright, performers’ rights must apply. Signatory members remain free to decide whether they also want to apply performers’ rights to performances that are not interpretations of copyright works, but the reverse is mandatory: signatory countries must extend performers’ rights whenever a person performs a copyright work. Failing to do so would breach the minimum level of protection guaranteed by the Rome Convention and the WPPT, leaving signatory states vulnerable to sanctions through the World Trade Organisation and/or the European Commission for non-compliance.

A knock-on effect

The upshot of this interpretation is that for every new copyright work (capable of performance) recognized by national courts, new categories of protected performances will arise. The result would be a knock-on effect between the subsistence of copyright and performers’ rights, respectively. Meaning that every extension of copyright protection to new works (capable of performance) will see new protected performances.

 

First in line to test this interpretation could be runway models. Why? Because fashion shows were recognized as full-fledged copyright works (‘oeuvres de l’esprit’) under French law by the Civil Supreme Court (Court de Cassation) in 2008 (decision: Ashby v Gaulme, Kenzo et Lacroix (2008) ; Ashby Donald and Others v France [2013] ECHR 28; see here). Logically,   once French courts  reached  the conclusion  under  their own jurisprudence (Ashby 2008) and then applied a literal interpretation of the Rome Convention and WPPT treaties, which were incorporated almost verbatim under the French Intellectual Property Code (see Article L 212-1), runway models should be entitled to performers’ rights. It should be as easy as 1 + 1 = 2.

A statutory exclusion

The problem is that French domestic law expressly exclude models from the scope of performers’ rights (together with auxiliary performers), or so the courts interpreted prior to Ashby. In existing case law, the exclusion of models from performers’ rights finds its legal basis in the French Employment Law Code, which describes models as the conduits of a commercial message aimed at advertising or presenting goods for sale (Art L 7123-2). By contrast, according to existing jurisprudence, performers are artists who ‘stamp’ their performance with the ‘mark of their personality’. The notion of ‘stamp of personality’ should sound familiar to copyright lawyers; the same concept is used to define the requirement of originality  in the context of French copyright law (‘droit d’auteur’).

This GuestKat argues that the line drawn between ‘models’ and ‘performers’ by the jurisprudence no longer holds true – if it ever did. This is because the definitions of protected performers outlined by the Rome Convention and the WPPT Treaty (and the Intellectual Property Code’s own provisions), combined with the Asbhy jurisprudence, contradict the blanket exclusion of all models from performers’ rights. At the very least, runway models should be included within performers’ rights.

Correcting French law on this  point should not be too difficult. The exclusion of models is not actually  part of the French IP Code, but is judge-made.  As explained above, it is the result of a farrago  of statutory definitions mingled together by the jurisprudence. Side-stepping precedent in a jurisdiction like France, which does not have the principle of binding precedent, should be easy enough. All that is required  is a new case raising a relevant fact situation. 

After almost 80 years of existence, there remain significant oversights or blind spots in the implementation of the Rome Convention. If we take into account that discussions on performer’s rights began already in the late 1920s, this brings us to 100- years’ worth of legal discussion and regulation in this area of law. And yet, provisions as basic as the definition of protected performances continue to hold surprises.