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Copyright and authors' rights: irreconcilable?
In France, it's common to see the © sign, the international copyright symbol, next to the author's name. In fact, many of you claim copyright on your creations in order to protect your rights. However, the term "copyright" is not a translation of the English term "droit d'auteur". Copyright, a common law concept, has no legal existence in France. So, for those who are wondering, but also for those who may need to contract under Anglo-Saxon law, here is a quick comparison of the notions of copyright and droit d'auteur.
1. Definitions
copyright, protection "à la française
Within literary and artistic property law, copyright is based on a founding text: the law of March 11, 1957. The latter codifies a constant trend towards recognition of authors' rights. The regulatory rulings of 1777 by the King's Council had already granted authors a "privilege for himself and his heirs in perpetuity" over their creations, a privilege enforceable against publishers and described as "property by right". Spurred on by the Enlightenment, and Condorcet in particular, revolutionary laws replaced these forfeited privileges with rights. Article 1 of the decree of 1793: "Authors of writings of all kinds, composers, painters and draughtsmen who engrave paintings and drawings, will enjoy for their entire lives the exclusive right to sell, have sold, distribute their works throughout the territory of the Republic, and to transfer ownership of them in whole or in part".
Copyright is therefore an intellectual property right which protects "by the mere fact of its creation" (art. L111-1 CPI) a materialized and original work of the mind.
It confers on the author
- Moral rights are personal, perpetual, imprescriptible and inalienable. It comprises 4 prerogatives: the right of disclosure, the right of authorship, the right to respect for the work, and the right of withdrawal/repentance.
- an economic right which represents the author's ability to exploit his work by transferring, in exchange for remuneration, the rights of reproduction, representation, continuation, inspiration...
French copyright protects the person of the author by attributing rights to him or her and protecting his or her interests. Copyright is a civil right, an intellectual property right, the right of ownership being enshrined in the French constitution.
Copyright: protecting an economic asset
Copyright can be traced back to Queen Anne's Statute of Anne of 1709, which is considered to be the first law on literary property enacted by Parliament to protect authors and combat the monopoly of publishers. Statutory copyright provides for a transfer of rights from the author for a limited period of 14 years, with the possibility of renewal open exclusively to the author; moreover, this statutory copyright can be held by anyone, not just a publisher.
Copyright applies in common law countries: United Kingdom, United States, Australia, Canada...
Copyright means the right to copy. It is a right of exploitation, protecting not the creator but the work itself against "copiers" who, through acts of clandestine passing (parasitism), would be exercising unfair competition against the "producers" of the works, i.e. those who have invested (creativity, time, but above all money...) to bring them to life.
Copyright is subject to registration and validation by a dedicated office (the US copyright office in the USA), which judges the work's protectability.
The © copyright symbol, used only on registered works, used to be compulsory in the USA, but is now optional. It indicates ("all rights reserved") that the work may not be commercially exploited without the authorization of the copyright owner. In the absence of this sign, counterfeiters could plead ignorance of the work's protection.
Copyright protects the economic rights to a work in a legislative system where statutory damagesand legal fees can quickly add up to colossal sums. Without copyright protection, the rights holder will only be compensated for the actual damage suffered, which is a much smaller sum.
Until recently, copyright did not provide protection for moral rights. Today, however, the two legal systems are coming closer together, and moral rights are now part of American copyright: 11 states explicitly recognize them, and the Visual Artists Rights Act of October 27, 1990 enshrines artists' moral rights in federal law.
2. Common ground
- Copyright and copyright both protect original, materialized works of human intellectual creation. These can be text, still or moving images, music, perfume, 3D works, choreography...).
- Both systems enable the right-holder to exploit his work, to transfer the rights of exploitation in return for remuneration and to prohibit others from exploiting it, to derive financial and reputational benefits from his work.
- Both systems attach penalties to this right.
NB: In copyright law, there are limitations or exceptions: private use, parody, pastiche, short quotation, topical information... the same applies to copyright, where "fair use" sets a limit to the rightful owner.
3. differences
To simplify reading, these points of divergence are listed in the form of a comparative table:
copyright
copyright
birth of rights
from the sole fact of a materialized and original human intellectual creation
original, materialized human intellectual creation subject to registration (and validation) by a Bureau
RIGHT HOLDER
natural person: the author or his successors, with some exceptions
Natural or legal person: sometimes the creator, sometimes the employer, the customer, the producer, the buyer...
term of economic rights
70 years after the author's death
in the case of a work of joint authorship: 70 years after the death of the last author
Work for hire: 95 years after publication, or 120 years after creation if shorter.
otherwise: 70 years after the author's death
moral rights
personal, perpetual, imprescriptible and inalienable (see below)
withdrawn in the case of collective works (under the direction of a natural or legal person who supervises its creation)
limited to the author as a public servant
Right of 1st disclosure exists
moral rights organized (or not) by each US federal state
duration: 50 years after the author's death
Protection through unfair competition, contract law, violation of personality rights
Contractual waiver possible
The Berne Convention has brought about a relative international harmonization of literary and artistic property law, establishing "national treatment" as a principle of "automatic protection" (without formalities), whereby foreign works enjoy the same protection in each contracting state as works originating in that state. These rights concern reproduction, representation, adaptation and moral rights (authorship and respect for the work). Exclusive authorization rights expire at the end of the 50th calendar year following the death of the author... except for photographic works, for which the term of protection is 25 years.
As for protecting your photos in common law countries :
Since the ratification of the Berne Convention by the United States, your photographs protected in France are also protected in the USA without any formalities. The "Berne Implementation Act", which came into force on March 1, 1989, stipulates that, for all foreign works originating in a country party to the Berne Convention, registration is no longer a prerequisite for an infringement action.
Nevertheless, registration (cost: $20)
- has probative value of the identity and date of creation of the work (time limit: 5 years)
- allows you to obtain the very substantial lump-sum damages provided for by law and the payment of legal fees; otherwise, only the actual damages suffered will be compensated (time limit: 3 months)
- allows you to affix a reserved copyright notice, consisting of the 3 elements © symbol, date of first publication, name of copyright holder. This statement constitutes bad faith on the part of the infringer, who cannot claim ignorance of the fact that the work was protected.
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