AG Campos advises CJEU to rule that joint ownership of copyright remains within the remit of national law, not EU law. But is that (still) right?

Claude Chabrol,
director of inter alia Le Beau Serge

Joint ownership of IP rights: is it an area governed by national or rather EU law? More specifically, when there is more than one copyright owner, does EU law have anything to say regarding how each of them can exercise and enforce their rights?

This, in a nutshell, is the question at the centre of the referral that the tribunal judiciaire de Paris (Court of Paris) has made to the Court of Justice of the European Union (CJEU) in Chabrol, C-182/24.

Earlier this week, Advocate General (AG) Campos issued his Opinion, essentially confirming his earlier approach in the trade mark referral Legea, C-686/21 [IPKat here]. He advised the CJEU to rule that this is a matter left within the substantial remit of EU Member States’ discretion.

Let’s see what the Opinion says and why the answer to such a question might turn out to be different from the one that the AG has proposed.

Background

In 1990, nouvelle vague film director Claude Chabrol and screenwriter Paul Gégauff assigned the exploitation rights for some of their films to a distributor for a period of 30 years.

After their passing, their respective heirs initiated litigation against the distributor and related companies before the Court of Paris claiming breach of contract and copyright infringement. In turn, the defendants argued that the action would be inadmissible because, as it is the case under French law (Article L. 113-3 of the French IP Code), not all the co-authors who realized the films in question had joined the litigation.

The Court of Paris was not sure whether such a national provision would be compatible with EU law, notably having regard to the InfoSoc Directive, Enforcement Directive, Rental and Lending Rights Directive, and Term Directive, read together with Articles 17 and 47 of the EU Charter. Hence, the need for a CJEU referral.

The AG Opinion

In his Opinion, AG Campos started by noting the obvious, that is: yes, it is possible under EU law that there is more than one author and/or owner of copyright to a work. Yet, EU law does not say anything regarding the procedural aspects relating to the enforcement of rights in respect of jointly owned copyrights. As such, this would be an area that has not been harmonized at the EU level and in respect of which Member States retain their competence.

As such, the French approach “seems unobjectionable”. The AG could not “see what grounds there would be to reject a rule that is confined to declaring that the co-authors of a work of collaboration must exercise their rights by common accord and that, where such agreement is not reached, a court should decide on the matter.”

That said, the effects of such a rule “must be subjected to the double scrutiny of checking that it is consistent with the principles of equivalence and effectiveness, on the one hand, and satisfies the requirements arising from Article 47 of the Charter, on the other. That article enshrines the principle of the right to an effective remedy in respect of rights conferred on individuals by the EU legal order.”

Such an assessment would be for the referring court to make though, in light of the particular circumstances of the dispute at hand. In any event, “the right of the joint rightholders to defend their claims against those who have (allegedly) infringed their copyright must not be subject to procedural requirements that are impossible or very difficult to comply with, which would amount, in practice, to the neutralisation of that right.”

In sum: the conclusion would be that EU law does not govern joint ownership of copyright and how it is to be exercised. 

Comment

The Opinion is unsurprising and, on the face of it, potentially still correct. Yet, things might be different if the right framing was undertaken and/or a key question was finally asked to the CJEU by a national court.

Why the Opinion is unsurprising (and formally correct)

The AG is right in saying that EU law is formally silent regarding the exercise of jointly owned IP rights. This is something that, in the field of trade mark law, the CJEU had already clarified. Specifically, in the already mentioned Legea case [IPKat here and here], the CJEU concluded – following the Opinion of AG Campos in that case – that the regime applicable to the joint ownership of a trade mark falls within the remit of national law, irrespective of whether the trade mark in question is a national or EU one.

Framing the question

At the time of the Legea judgment, I wondered whether a different conclusion could be achieved by focusing on Article 17 of the EU Charter, which the AG does not really do in his Chabrol Opinion, despite a specific request in this sense made by the Court of Paris.

The IPKat's
own Beau Serge

Indeed, over time the CJEU has held that Article 17 concerns not just the ‘static’ protection of property – that is: the very existence and acknowledgment thereof – but also its exercise. If one were to use the EU Charter perspective, then it could be argued that EU law does have something to say – at least in the form of guiding principles – regarding the exercise of IP rights, including in the context of joint ownership thereof and contractual matters.

While it is fair to acknowledge that, in Chabrol, the AG inferred some guidance for the referring court by looking into general EU law principles as well as Article 47 of the EU Charter, I hope that the CJEU in the resulting judgment engages more meaningfully with Article 17 and its actual relevance. This is a provision that the CJEU has referred to in its IP case law with increasing frequency over the past few years. Yet, its actual content remains elusive at best.

And (finally) asking the key question ... and answering it

But in all of this there is a key question that the Paris court has not raised, nor has the AG identified: when we speak about ‘authors’ and ‘rightholders’ (as the EU copyright acquis does!), are we referring to national or, rather, autonomous concepts of EU law?

As readers may know, when an EU law provision makes no reference to EU Member States’ laws, relevant concepts therein are not to be defined at the national level but are rather to be intended as autonomous concepts of EU law. As such, they are to be given a uniform application throughout the EU, with the result that Member States are not allowed to determine the limits thereof in an inconsistent and unharmonized manner.

As I discuss in greater detail in Copyright and the Court of Justice of the European Union, the CJEU has often employed this standard in its copyright case law, with the practical effect of strengthening the harmonization of copyright laws across the EU. The following are for example all autonomous concepts of EU law in the EU copyright legislation, as per CJEU case law: ‘work’, ‘phonogram’, ‘reproduction’, ‘public’, ‘distribution’, ‘parody’.

Recently, in Kwantum [IPKat here], the CJEU expressly noted that the notion of ‘author’ in the InfoSoc Directive is yet another autonomous concept of EU law, given that no reference is made there to national law. Hence, it must receive uniform interpretation and application across the EU. The same is most likely true of ‘rightholder’ too, including copyright co-owners.

If one moves from this, then the entire construction offered by AG Campos – though formally correct – collapses.

If ‘author’ and ‘rightholder’ are autonomous concepts of EU law, as they are, then not only aren’t Member States not free to define these concepts at the national level, but they are not entitled to decide how such a status is to be exercised either, including having regard to enforcement situations. In turn, both subsistence of one’s quality as ‘author’ and ‘rightholder’ and how the associated rights may be exercised and enforced become a matter of EU law, with the practical effect of depriving Member States of their competence in this regard and mandating a uniform approach across the EU instead.

Admittedly, to get a result of this kind, the referral in Chabrol should have been probably framed a bit differently. Yet, they say that hope dies last: let’s thus see what the CJEU thinks (and decides) in the end.