French IP Professor Publishes Report on Transformative Works

Professor Valérie-Laure Benabou, from the University of Versailles, has published this week her report on transformative works (the Report) which had been commissioned by the Conseil supérieur de la propriété littéraire et artistique (Copyright Superior Council, CSPLA), an independent body in charge of advising the French minister of culture and communication about copyright issues.

Is Transformative Cat a Good Thing? 

A Follow Up to the Lescure Report

The Report is a follow-up to the Lescure Report on Cultural Exceptions published last year by the CSPLA, which only alluded to transformative works, but called for the clarification of their legal status while noting that exceptions to copyright provided by French law "do not adequately secure the practices of transformative creation (...) which growth is promoted by digital technology" (Part I. p. 36).

The Lescure Report added that "[t]he legal status of these transformative works, described by French law as composite works, remains exceedingly precarious; they are generally not eligible for exceptions such as parody and short quote, and thus creators of transformative works are forced to seek approval of all those who hold the rights to the works they intend to reuse. The agreements between collecting societies and some content sharing platforms do not, as of now, secure these practices " (Part. 1 p. 36).

French Law “Awkward” at Grasping Transformative Works

As explained by the Report, the term “transformative” originated in U.S. fair use case law, particularly the Supreme Court Campbell v. Acuff-Rose case, where the court explained that the more an unauthorized derivative work is transformative, the more likely such use is fair under §107 of the Copyright Act (p. 13).

Transformative works can be mash-ups, remixes, fan-fiction, fan-made videos, or can also be works of visual arts which incorporate elements of previous works, such as Richard Prince’s CanalZone series which led in the U.S. to the much debated Cariou v. Prince case.

The Report notes that transformative work is an “ancient phenomenon” and provides several classic examples of artists using previous works to create new ones, such as Alban Berg inserting a Bach choral in its violin Concerto to the Memory of an Angel.

But modern transformative works take that practice to a new level, as “[t]he proliferation of technical opportunities for intervening on the original work, to decline it over time and space, is shaking the concept of the work finished once and for all and tends to support the concept of an open work” (p.5-6). Indeed, new technologies allow even the most unlearned individual to create new works from an digital copy of an original work, by using readily available and easy to use software.

The Report notes that“French law is quite awkward at grasping transformative creation” (p.59). While article L. 113-2 of the French Intellectual Property (IP) Code defines “composite work” as a “work in which a pre-existing work is incorporated without the cooperation of the author of the latter,” article L. 113-4 merely states that such work “is the property of the author who made it, subject to the rights of the author of the original work” but not explain its rationale further.

The strong French droit moral may be the reason why French IP law did not establish a stronger transformative works regime.

Droit Moral and Transformative Works

French copyright is author-centric, and posits an intimate relationship between the author and his work. The Report notes that “[c]ontemporary developments of creative practices undermine [the romantic concept of the author as a creator.] But the right to paternity and the right to respect and integrity of the works, which are considered inalienable by French law, seem to ill accommodate the reappropration and derivation which are features of mash-ups and other contemporary uses which belong to the transformative practices studied by this report (p.5-6).

Indeed, while article L. 122-5 of the French IP Code provides some exceptions to copyright, the moral rights of paternity must always be respected; article L. 122-5 3° provides for short citations and other exceptions to copyright, but only if the name of the author is mentioned.

The Report also notes that many of the persons consulted by the author while preparing the Report “overestimate the blocking effect [of droit moral] vis-à-vis transformative works.” It is thus important to emphasize that moral rights are a defense the author may use against a breach of some of his rights, but that moral rights are not rights requiring third parties to seek prior authorization before using the work (p. 41).

The main droit moralissue for transformative works is the respect of the integrity of the work. French law considers that such right is both a right to material integrity and a right to a subjective integrity, that is, respecting  the spirit of the work (p.43). Indeed, “the juxtaposition of a work with other works which do not share the author's philosophy may upset moral rights. This has been tried in the Ferrat case in which the singer-songwriter Jean Ferrat filed suit to prevent his songs to be included in a compilation with songs ranging radically against his political positions” (p.44).

The Report further notes that French law may have difficulty to comprehend transformative works because both the patrimonial rights and the moral rights of the author may have to be enforced. One of the moral rights protected by French law is the right to integrity, which may lead to “thorny practical questions” (p.36).

The report makes some recommendations and I will cite only a few of them.

A Digital Public Domain Registry

It is necessary to initiate a public discussion about intangible public domain, its regime and how public domain could be used as a defense to avoid illegal appropriation or intimidation practices which may complicate or prevent access without lawful cause to these common cultural resources (p.26).

These mice do not fear to be sued

This would ensure that individuals could use, without fear of being sued, works in the public domain to create new ones. The Report recommends the creation of a digital public register of public domain works which would catalog works in the public domain and also inform the public about their regime (p. 69). Authors could choose to voluntarily place their works in the registry.

Mediation

One should develop simple and rapid procedures, where both parties are heard,  to address the inadvertent blocking of legitimate transformative creations and encourage mediation processes to reduce conflict and ensure the presence of legitimate transformative works on the web (p.34).

Mediation would prevent over-blocking, as it would “promote contradictory mechanisms allowing authors of transformative work to legitimately oppose demands of withdrawal of their creations.” Authors of transformative works could argue that a particular use is lawful and does not require prior authorization (p.73). These procedures are ”particularly useful as they directly concern freedom of expression” when the use is a parody or a citation (p.73).  

The Report does not specify at which level such mediation should take place. Should publishing platforms put in place a mediation department? Should a non-profit or a governmental entity be created? Nevertheless, it is an intriguing proposition and it would be worth pursuing.

Contractual Agreements Between Online Publishers and Copyright Holders on Behalf of Users

The Report is also in favor of copyright holders entering into contractual agreements, not with individual content distributors, but rather with hosting platforms (p.71).This would promote revenue sharing between publishing platforms and copyright holders while ensuring users against the risk of copyright infringement suits. This would be achieved by inserting in the ToS a clause giving platforms a mandate to represent their clients when dealing with copyright holders to obtain authorizations to use a particular work (p.72).

No Transposition of U.S. Fair Use in French Law

The Report does not recommend transposing U.S. fair use in French law as copyright is the “right to copy” while the French droit d’auteur is the right of the author of a work to control his works (p.81). This lapidary statement is, in my view, quite reductive of the nature of copyright and one needs more than one paragraph to present a convincing argument that copyright is merely the right to copy.

Also, the Report argues that “the flexible mechanism of fair use ascertainment cases finds its place in a system based on judicial precedent, while French law prohibits judges to refer to previous decisions of their peers (arrêts de règlement) (p.81). 

Copyright is so... gauche!

But common law and civil law judicial systems are not as black and white as this phrase suggests. I find this statement unconvincing but discussing why goes beyond the format of a blog post.

Extend the Scope of Existing Exceptions

The Report also recommends extending the scope of existing exceptions, such as the parody exception and the fortuitous inclusion. Amusingly, the fortuitous inclusion exception is recognized by French courts, even though it is not recognized by law, and the Report stated just a few lines above that French law does not recognize judicial precedent. It is true that this exception is  recognized by article 5.3(f) of the Copyright Directive which states that Member States may provide for exceptions or limitations to the reproduction right for “incidental inclusion of a work or other subject-matter in other material.” This particular exception has not been implemented in French law, but the Cour de Cassation recognizes it nevertheless.

This is just a quick comment on the Report, which is 124 pages long and well worth the read.