No CrossRef data available.
Article contents
The Author's Right to Intellectual Property
Published online by Cambridge University Press: 28 February 2024
Extract
Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.
Increasingly in certain circles the idea is growing up that ‘intellectual property is theft’. With companies being concentrated into multimedia groups, literary works being captured electronically, products being created for a mass-media culture, commercial exchange on a worldwide scale, the legitimacy of the creator's literary and artistic property is being challenged. Originally the ‘droit d'auteur’ or copyright were mainly protective rules laid down by law to regulate the author's status. The legal system of literary and artistic ownership still ensures that creators receive revenue each time their works are reproduced, adapted or communicated to the public. In addition the droit d'auteur has another aspect through the existence of moral right, which establishes a personal link between author and work. It is true that moral right, which is sometimes seen as an obstacle to economic development, is almost non-existent in the systems of law recognizing copyright, which do not incorporate the same balance of interests as between the author and the company. On the other hand, in its formulation the droit d'auteur takes a more human approach and to say that intellectual property is theft would be equivalent to weakening, or even eradicating, a system that protects individual creators facing the reality of the exploitation of their work. This is why this criticism of legitimacy should, in my view, be considered in the context of a debate about the status of the author. The electronic capture of creative works has meant that the general public has easier access to them.
- Type
- Research Article
- Information
- Copyright
- Copyright © ICPHS 2002
References
Notes
1. Joost Smiers (2001), La propriété intellectuelle, c'est le vol! Plaidoyer pour l'abolition des droits d'auteur, in Le Monde diplomatique, September, p. 3.
2. Jean-Gabriel Ganascia (1999), 2001, L'odyssée de l'esprit (Flammarion), p. 144, quoting the example where a byte can encode a typographic character and CDs can hold more than 600 million characters; at the rate of 1500 typographic signs per page on average for each book, that makes 1000 books.
3. The first privileges granted are thought to date back to the late fifteenth century and the publisher Jean de Spire, who obtained one from the College of Venice in 1469, but legal experts such as Planiol believe that it was in 1495 that the first recorded privilege was granted by the Senate of Venice to Alde Manuce for an edition of Ariosto. In France the first privilege was granted by Louis XII in 1507 to the publisher Antoine Vérard for an edition of St Paul's Epistles (M.C. Dock (1962), Contribution historique à l'étude des droits d'auteur (Paris, LGDJ), pp. 63-64).
4. Mme Dock is of the opinion that in this respect these scholars showed sufficient originality in carrying out this work for them to earn the title ‘author' today; she gives the example of an opinion of the Appeal Court of 11 January 1942 (in Egypt), which states that when reissues of ancient works contain amendments, additions, commentaries or classifications, they constitute an intellectual activity protected by authors' rights (Droit d'auteur, 1944, p. 141).
5. In Britain the London publishers (Stationers Company) had obtained privileges during the reign of Mary Tudor, who by a decree of 1556 also gave them the task of censor, alongside the Star Chamber, which involved rooting out seditious or heretical works. The privilege of making and selling a work by an author was made more widespread in France by the letters patent of 20 December 1649, which banned any printing of a work without the king's privilege and condemned all French and foreign forgeries. Mme Dock does not agree with the dominant belief of the late nineteenth century, which takes the 1566 ordinance of Moulin creating the privilege system as the origin of protection of the creations of the mind. In France theatrical performances were from 1680 the prerogative of the Comédie Française and remained so until the 1789 Revolution.
6. On 31 May 1790 the American Congress adopted the first copyright law with the same aim of encouraging learning.
7. ‘Whereas printers, booksellers and other persons have of late frequently taken the liberty of printing, reprinting and publishing […] books and other writings without consent of the authors or proprietors […] to their very great detriment, and too often to the ruin of them and their families', Preamble to Anne's law of 1710 giving the reasons for the law.
8. Millar/Taylor, Burr (4th ed.), 2303, 98 Eng. Rep. 201 (K.B. 1769).
9. Donaldson/Becket, 4 Burr (4th ed.), 2408, 2417, 98 Eng. Rep. 257, 262 (H.L. 1774); see Jacqueline Seignette (1994), Challenges to Creator Doctrine (Kluwer), p. 15.
10. Mémoire, in Laboulaye & Guiffrey, La Propriété littéraire au XVIIIe siècle: recueil de pièces et documents, p. 13 et seq.
11. D. Diderot (1984), Lettre sur le commerce de la librairie (Paris, Librairie Fontaine). On the change in status, see pp. 88-89.
12. The publisher is essential to the process of getting the author recognized. Cf. Diderot thinking that the owner's right is the true measure of the acquirer's right, op. cit., p. 90.
13. E. Kant (1995), Qu'est-ce qu'un livre? (Paris, Quadrige/PUF).
14. These orders set out the aim of the privilege, which, when it was granted, would be either a return for authors on the fruit of their labours, or else the publishers' quid pro quo for the costs incurred in the printing and distribution of manuscripts. The privilege granted directly to authors was perpetual (for authors and their heirs), whereas that granted to publishers lasted at most for the author's lifetime: publishers' privileges were in proportion to their advance and the scale of their business.
15. Noah Webster, Origins of the Copyright Laws in the United States, describes the desperate position of American education in 1782 and thus its attempts to get the state legislatures to protect publishers. ‘School textbooks were scarce and almost impossible to get hold of', reports J. Ginsburg (1991) in Histoire des deux droits d'auteur (RIDA), January, p. 142.
16. In his note (Histoire des deux droits d'auteur: la propriété littéraire et artistique dans la France et l'Amérique révolutionnaire) Ginsburg stresses the fact that this aim of encouraging creativity is also found among French barristers and judges applying the 1791 and 1793 decrees. This analysis concludes that art glorified the Revolution and defended its ideals. So, without denying the presence in revolutionary laws of a definite current in favour of authors' rights, it would seem that in general the revolutionary lawmakers had resolved the opposition between public and private, seeing the droit d'auteur as an aid to the improvement of public education (RIDA, 147, January 1991, p. 176).
17. Article 2 of the 1789 Declaration of the Rights of Man defines the natural imprescriptible rights of man, which are: ‘liberty, property, security and resistance to oppression'.
18. Article 11: ‘The free communication of thoughts and opinions is one of the most precious rights of man; every citizen may therefore speak, write, publish freely, except that he must answer for the abuse of this freedom in cases laid down by the law', and Article 17: ‘Since property is an inviolable and sacred right, no one may be deprived of it, unless public necessity, legally proven, clearly requires it and on condition of fair prior compensation'.
19. E. Kant, op. cit.
20. Some of them made a distinction between ownership rights and the rights of the individual, but others did not separate them.
21. The law of 11 March 1957 confirmed the right to literary and artistic property, which is now codified in the law of 1 July 1992 in the Code de la propriété intellectuelle (CPI - Intellectual Property Code).
22. Article L. 121-1 clauses 3 & 4 relating to moral right: ‘It may be transmitted because of death to the author's heirs. Its exercise may be entrusted to a third party by virtue of instructions contained in the will.'
23. P. Sirinelli (1985), Le Droit moral et le droit commun des contrats (Paris, thesis), p. 27.
24. At first legal practice merely defended the moral right associated with the person of the author.
25. Article 121-7, amended by the law of 10 May 1994, Article 3 concerning the moral right of the software writers, who cannot oppose the alteration of their software or exercise a right of withdrawal.
26. Cour de Cassation, 1re ch. civ., 7 April 1987, State of Gabon/Antenne 2 in the case of the execution of a commission the Cour de Cassation accepted that the artist's freedom may be restricted in order to conform to the requirements of an advertising commission (RIDA, October 1987, no. 134, p. 97. See note in E. Derrieux, Oeuvre de commande, liberté de création et droit moral de l'auteur (RIDA, no. 141, pp. 199-233).
27. The nature of an architectural work is such that it is one of the types of work that are entirely designed to be appropriated by man. Location, space and time are inherent factors giving rise to alterations, and it is only buildings listed as historic that are protected against alterations or destruction. Cour de Cassation law (1re ch. civ. of 7 January 1992, bull. civ., 1, no. 7) recognizes that the work's owner has ‘a right to carry out alterations when it turns out to be necessary to adapt it to new needs'.
28. Article L. 113-2 of the CPI defines a collaborative work as ‘a work created on the initiative of an individual or entity, who edits, publishes and distributes it at his own instigation and under his own name, and where the personal contributions of the different authors contributing to it become blurred in the whole for which it was conceived, in such a way that it is impossible to attribute to each of them a separate right to the final work', and Article L. 113-5 of the CPI lays down its application: ‘A collaborative work is, in the absence of proof to the contrary, the property of the individual or entity under whose name it is distributed. This person or entity possesses author's rights.'
29. This refers to the French exception attributing author's rights directly to an individual or entity other than the real creator. Originally this status was designed for dictionary or encyclopedia editors. Strict interpretation requires a limited application. However precedent accepts this status for publishers of Web pages, multimedia products, video games, newspapers, catalogues raisonnés, and holders of databases.
30. J.-L. Goutal, Multimédia et réseaux: l'influence des technologies numériques sur les pratiques contractuelles en droit d'auteur, D., 1997, chron., p. 357. Looking at practice in audiovisual and publishing contracts relating to the inclusion of a work within a multimedia product, he writes that ‘the trend is indeed towards using collaborative work, moving from management by a individual to collaborative management and restriction of moral right'.
31. On this matter compare the French report by Gerald Dworkin, Le droit moral dans les pays de ‘common law', which refers to Professor Ginsburg's criticism that the provisions in Britain on moral right ‘seem cynical or at the very least timid' (ALAI, Antwerp conference on Le droit moral de l'auteur, 19-24 September 1993, p. 106).
32. An example is the case of Nintendo of America Inc./Camerica Corp. (1991) 34 CPR (3d) 193, 199 affd. (1991) 36 CPR (3d) 352 (Fed. CA) where, in order to defend the creation of a video game, the company accused the pirate of misuse of its brand, but also used its employee's moral right to oppose the violation of his computer game's integrity.
33. ALAI conference, June 1996, in Amsterdam, where M. Dietz looked at the demand for a moral right for the producer.
34. Huston case, Cass. 1re ch. civ., 28 May 1991, RIDA, July 1991, no. 149, p. 197, and Versailles Appeal Court, ch. civ. réunies, 19 December 1994, RIDA, April 1995, 369 (renvoi de cassation).
35. The law of origin was prescribed by the rules of international private law when there was a conflict between jurisdictions. On the other hand, the Berne Convention on the international protection of author's rights, in Article 14b (2) (a), states that the law where protection is applied for should decide who holds the droit d'auteur for a cinema work.
36. Huston case. The Huston heirs were permitted by the Cour de Cassation to defend their moral right to stop the distribution in France of a colour version of The Asphalt Jungle by the director John Huston, given that moral right is a public order question and a compulsory rule, even though American law applicable to deciding the owners of rights said that the producer was the author, since it was a work created according to a contract relating to hiring of a service; op. cit. supra.
37. Advertising is a prime area for the exploitation of works by a company in the service of product promotion (cf. the case of Vermeer's milkmaid used by a brand of yoghurt). The risk of dumbing down culture is ever-present in our societies, and respect for the work's authenticity and its creator's person should be accepted by all systems and not be limited to certain works considered by American law as works of pure art. But the moral right principle comes up against the fact that it is granted only to the creator as an individual.
38. M. Foucault (1969), Qu'est-ce qu'un auteur?, Bulletin de la Société française de philosophie, vol. LXIV, session 22 February 1969, in Dits et écrits 1954-1988 (NRF, Gallimard), Bibliothèque des sciences humaines.
39. TGI Paris (1 Ch.), case of the sequel to Les Misérables, Consorts Hugo, SGDL c/Editions Plon, 12 September 2001. The heirs to the Hugo estate challenged a publisher's action in issuing a sequel to Les Misérables, claiming that this continuation infringed the moral right of Victor Hugo. The SGDL intervened on the side of the Consorts Hugo and defended the recognition of respect for this right given that it is in accordance with the wishes of the author, who did not plan any other ending to his work. The judges refused to look in detail at the request of the Hugo heirs because they had no proof of their status as heirs and thus they were judged to have no case.
40. The Société des Gens de Lettres (SGDL) intervened to defend the moral right of the author Pierre Choderlos de Laclos and challenge the use of the title Les Liaisons dangereuses by the film director Roger Vadim (1re ch. civ., 6 December 1966, D. 1967, 381, note Desbois) and again to ensure that the integrity of Paul Féval's work Le Bossu was respected (1re ch. civ., 16 April 1975; bull. civ., I, no. 134). The Cour de Cassation did not accept the society's action since it cannot defend the specific exercise of an author's moral right.
41. Centre national des lettres, décr. no. 73-539, 14 June 1973, aims to ‘ensure respect for literary works, whatever their country of origin, after the author's death and even after they have entered the public domain'.
42. Societies that collect and distribute royalties avoid defending moral rights as they are associated with the exclusive prerogatives of authors or their heirs.
43. J.-L. Goutal, op. cit., p. 362.
44. Bertrand (1999), Le Droit d'auteur et les droits voisins, 2nd ed. (Dalloz), p. 464.
45. It is a moot question as to whether computer-aided creations or those dependent on artificial intelligence techniques are genuine creations, since they are produced by machines that are ‘replacing' the human mind.
46. Yvan Cherpillod (1985), L'Objet du droit d'auteur (CEDIDAC - Centre for company law, University of Lausanne), p. 63.
47. M. Boutet, commentary in RIDA, vol. XIX, p. 121.
48. Peter Jaszi (1992), On the author effect: contemporary copyright and collective creativity, in Benjamin N. Cardoso School of Law, Art and Entertainment Law Journal, p. 293.
49. M. Foucault, op. cit.
50. The writer is borrowing Beckett's phrase: ‘What does it matters who is speaking, someone said, what does it matter who is speaking.'
51. Article 3 § 3 imposes a more flexible regime (implicit assignment) than the one that governs assignment of author's rights in general.
52. Article 6 of the Belgian law of 30 June 1994, concerning author's rights and associated law.
53. Berembom, Le Nouveau Droit belge, § 5 and § 132 et seq. The criteria separate out all industries other than those that produce cultural goods and grant them unlimited assignment of rights for any mode of exploitation (Article 3 § 3).
54. Law no. 98-536 of 1 July 1998 amended Article L. 112-3 and brought in a specific protection in Articles L. 341-1 of the CPI for the producers of these databases by giving them the right to stop the extraction or reuse of a substantial part of their content.
55. Cass. ass. Plén., 7 March 1986: JCP 86, ed. G, II, 20631, note J. Mousseron, B. Teyssié & M. Vivant.
56. A. Lucas, Les créations assistées par ordinateur, in Le Droit de l'informatique (PUF), 311-324. M.C. Piatti & Y. Gaubiac (1983), La Création artistique assistée par ordinateur. Problème de droit d'auteur, RIDA, no. 118, October.
57. According to Y. Gaubiac and M.C. Piatti ‘the computer is not strictly speaking "creative"; it is much more an additional medium of aesthetic expression in the extremely wide range of artists' traditional tools, just like the sculptor's chisel, the painter's brush, the draughtsman's pencil or the composer's instrument', in op. cit.
58. Former Article 3 of the law of 11 March 1957. I. Calander (1996), Le Media Lab aux avant-postes du cybermonde, in Le Monde diplomatique, 21 August: ‘Increasingly computer specialists are working on "cyborgs", which are the cross between human and machine (called cybermen) on which their discoveries are based.'
59. Bertrand (1999), op. cit., pp. 464-468.
60. F. Perrotin (1998), Conseil d'Etat, Internet et les réseaux numériques (Paris, La Documentation Française), p. 141.
61. Law of 15 November 1988 on authors' rights, designs, models and patents. Reported in Le Droit d'auteur, October 1988, Lois et traités, p. 1.
62. The 1988 law contains provisions permitting others, including commercial entities, to be considered as authors: Article 9-2 lays down clearly the persons entitled to be considered the author: ‘a) The person who makes the arrangements necessary for the execution of a sound recording or film; b) The person who produces a programme for radio broadcasting; c) The person who provides a cable service; d) The publisher of a typographic presentation.'
63. Since the work created by computer is made, in accordance with Article 178, in conditions that exclude all human intervention.
64. ‘More generally,' writes Professor Alain Strowel (1993), ‘it seems quite clear that these different provisions have the effect of subtly modifying the meaning of the notion of author, which, from being a creator, becomes synonymous with entrepreneur', in L'auteur comme créateur et entrepreneur, Droit d'auteur et copyright (Paris, LGDJ), p. 377.
65. In the USA the concept of ‘authorship' implies that the author is a human being at least when it is a case of establishing a work's originality (Feist/Rural Telephone Service 111 S. Ct. 1282 (1991); see RIDA, October 1991, no. 150, p. 99, note Paul Geller).
66. Two Cour de Cassation judgments of 1 December - Sté Huet/S.A. Decelet - and 8 December 1987 - S.A. André Hayat/S.A. Bendji. These cases concerned the originality of products that had been pirated: RIDA, April 1988, no. 136, p. 140, JCP, 88, IV, p. 67.
67. C.A. Paris, 4e ch. civ.; sect. B, 5 March 1987: SARL Masci Informatique/Sté Apple Computer Inc. and others. JCP, 1987, ed. E, II, 14931, p. 261, note A.L. Vincent. Commenting on this decision, Michel Vivant and André Lucas take the view that the originality argued by the Paris Appeal Court refers more to patent law that authors' rights when the court mentions the deposit of the work to discover whether the marketing of the Masci company's software was not subsequent to the software produced by Apple, JCP, ed. E, 1987, 16607, Actualité droit et gestion on informatics-related law.
68. A concept developed by the multilateral agreement on investment proposed for April 1988 by OECD (Organization for Economic Cooperation & Development), stating that intellectual rights should be defined as investments and included within this agreement's ambit, which rejects any obstacle that might have the effect of constraining foreign investors in any of the OECD countries.
69. E. Mackaay (1986), Les droits intellectuels entre propriété et monopole, in Revue internationale de droit économique, 10, pp. 43-88.
70. This law follows on from the report on the recommendations of the September 1995 white paper designed to adapt American authors' rights with a view to the problems thrown up by Internet and network development. DCMA § 1201 (k), see commentary by Jane Ginsburg, Chronique des Etats-Unis, RIDA, no. 179, pp. 207-211.
71. Paul Goldstein (1997), Copyright and its substitutes, in Journal of the Copyright Society of the USA, vol. 45, no. 2, winter, on technical measures of protection for artistic works and how to evade them.
72. Libération, 8/10/2001, Le CD inviolable, bientôt dans les bacs, p. 25, which makes a distinction between ‘private copy' (legal) and ‘private piracy' (illegal). Indeed software exists to ensure payment for the work and also to monitor its use and inform the user of the rights system (copyright management information), see http://www.sdmi.org. See also the article by M. Buydens & S. Dussolier (2001), Les exceptions au droit d'auteur dans l'environnement numérique: évolutions dangereuses, in Communication commerce électronique (Editions Juriclasseur), no. 9, September, p. 10.
73. On this point it is interesting to note that the European directive on lending and hiring rights, no. 92/100, Council of Ministers, 19 November 1992 (Code de la propriété intellectuelle, Dalloz, 2000, p. 574), whose application was strongly criticized in France, since this payment is against the public's interest in free access to books in libraries assisted by a policy of public reading. The Ministry of Culture is planning to introduce this lending right by a system of legal licence (Libération, 12 October 2001).
74. In Professor Pollaud-Dulian's opinion, this conception seems a dangerous one, since it means appropriating every kind of non-material investment, ignoring the conventional conditions for recognizing intellectual rights, the boundaries of these rights, and eroding the public domain (Droit de la propriété industrielle, Montchrétien, 1999, p. 5, n. 11).
75. Directive 2001/29/CE, European Parliament and Council of Ministers, 22 May 2001, Sur l'harmonisation de certains aspects du droit d'auteur et des droits voisins dans la société d'information, JO CEE, 22.6.2001; L 167/10 considérant 14 stating that ‘the directive should promote the dissemination of knowledge and culture through the protection of works and other protected objects, while providing for exceptions or limitations in the public interest for educational or teaching purposes'.
76. Maitre Cohen-Tanugi (1999) writes on this topic that ‘the exploitation of works in the electronic world is tending to increase the number of cases relating to ownership for commercial entities, block payments, near-compulsory use of collective handling of rights and a weakening of authors' moral prerogatives. All this is still within the formal framework of the droit d'auteur, but borrows increasingly from the copyright system, which is better suited to complex economic exploitation' (in Le Nouvel Ordre numérique, Odile Jacob).
You have
Access