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Monday, 20 September 2010

Droit de repentir: can anyone help?

At a seminar earlier today I mentioned the French droit de repentir , this being the author's right to prevent further reproduction, distribution or representation in return for compensation paid to the distributor of the work for the damage done to him, under Article L121-4 of the French IP law. I was asked about limitations on the exercise of this right and said I didn't think there were any.

My understanding is supported by the statement in Wikipedia that
"The moral rights are inalienable, perpetual and inviolable. They pass to the author's heirs or executor on the author's death, but may not be otherwise transferred or sold under any circumstances, by either the author or his legal successors. Any agreement to waive an author's moral rights is null and void, although the author cannot be forced to protect his work".
However, there was some speculation as to whether there exist, in any circumstances, any form of limitation to the exercise of this very powerful right, which might appear to be a disincentive to investment in the commercial exploitation of a work in France. Can any readers advise? Also, does anyone know whether the right can be asserted in France with regard to further exploitation outside France itself?

7 comments:

Mélanie L. said...

The "droit de repentir" is subject to certain limitations and exceptions.

Special limitations and exceptions:
- The enforcement by an author of his "droit de repentir" is subject to the prior indemnification of the assignee of the rights concerned. (Art. L. 121-4 of the French IP Code)
- If the author decides to step back, he has to offer his exploitation rights by priority to the assignee he has originally chosen (Art. L. 121-4 of the French IP Code)
- Unless otherwise stated, the author of a software may not enforce his "droit de repentir" (Art. L. 121-7 of the French IP Code).

Besides, Courts are entitled to control the reasons for the enforcement of the "droit de repentir" and can refuse it, notably if it appears that such enforcement would constitute an "abuse of right".
Courts have also refused to enforce such right when circumstances showed that the reason behind the "repentir" concerned the financial terms of the agreement rather than the author's moral rights.

I hope this helps.

Phil said...

I would agree with Melanie, although I must say that I am not checking the exact wording of the relevant provisions.

The droit de repentir is rather theoretical and I believe quite rarely implemented because of the financial implications it may entail.

I would also react to the definition of moral rights on Wikipedia:I would say that it is rather exagerated to write that any agreement to waive moral rights is null and void. Case-law on the subject is more subtle and the Supreme Court has been notably concerned with cases where moral rights were definitely and uncondintionally relinquished by the author. Naturally an author can enter into an agreement and aknowlege on account of his moral right that he consents. Also for certain types of works (advertising/commissioned works) judges will be more flexible and hold less easily that there is a violation.

As mentioned by Melanie, there is also a theory of abuse of moral rights (by use or non-use).

Sylvie said...

I would add the droit de repentir is considered by several scholars (Françon, Pollaud-Dulian, and case law did not state on this point, as far as I know) as being soooo personal that it can only be exercized by the author himself, meaning it can not be exercized by heirs. Thus, an important limitation to this right is that it is actually not really perpetual.

Jeremy said...

Graham Titley (who emphasises that the following is his understanding, based on available sources, as to what the position is) writes:
I have limited ‘evidence’ to written works; there may be variations for other types of works in chapters L122 onwards.
I think you have ‘mixed’ moral right timeline (unlimited) with exploitation right timeline (death+70).
My understanding is that
1) A moral right of respect for name, authorship and work exists in perpetuity and can be exercised even after the exploitation right expires (L121-1 and L121-2). Effectively this means there always a legal protection of the right of paternity and attribution, and protection against defamatory use of the work. This right cannot be transferred or sold and remains with the creator and his/her legal successors. UK moral rights are very similar.
2) The exploitation right belongs solely to the creator and is bequeathable and lasts for 70 years after the end of the year in which the creator dies (L123-1).
3) The use of L121-4, which gives to the creator, or his heirs, the right to change their mind about exploitation, even after publication, providing they pay compensation, can only be applied during the period that the exploitation right exists – since after that time the work would move into the public domain and the only ‘protection’ would be the moral rights granted in L121-1.
This right can only be exercised if the assignee has been indemnified beforehand (pre-publication). It goes on to state that if the creator changes their mind again and seeks re-publication they are required to offer the exploitation rights to the original assignee under the same terms originally agreed. So I guess this is the 'protection' that publishers’ ensure are enshrined in French publishing contracts with creators. Section L132-1 to 132-17 also covers some of the relationship elements to be covered in contracts, including: L132-8 the creator shall guarantee the publisher the undisturbed and, unless otherwise agreed, exclusive exercise of the right assigned.
In regard to exercise of rights in exploitation abroad I have been unable to find any guidance. My access to French law and its cases is limited! I suspect that, in accordance with Berne, a French author would seek to apply French Law in another Berne co-signatory country, and that the same process would apply if France are co-signatories to any other treaties (since the treaties are predominantly based on respecting the rights granted to creators in their home countries (subject to the time of rights limits applied by local law’ eg: US gives 100 years but EU only 70, therefore US works only get 70years. If home country law gives 50 years, then only get 50years in EU).
The protection or application of any right granted by ‘home’ laws in a non-signatory country are inherently more difficult and I guess would involve getting a ruling by a French court that your rights had been breached and then seeking ratification of that decision by a court in the non-signatory country.

Pablo Palazzi said...

I taught this year a course on Comparative Law at Fordham Law School and one of the topics was moral rights (see http://www.comparativeiplaw.com/)

Moral right in France & Europe are quite strong and you should find examples of cases in Italy and France in these law review articles.

There is a case from France regarding the droit of repenting with the portrait of Lady Eden. A very old case... This article is one of the best summaries I found...

Sebastien Oddos said...

You are correct in your assumption that the droit moral knows no limitation, at least in theory. In practice, however, and contrary to other moral rights, I have very rarely seen authors exercise this 'droit de repentir' or 'droit de retrait'. The only case I know concerns a painter who had contracted to deliver a portrait but later decided not to deliver. It was held that if the painter was free to refuse delivery, he had, however to compensate his co-contractor for the damages (under regular contract law i.e. Civil Code and not Intellectual property Code).

The only occasion when I have seen authors ask for a reversion of their rights after assigning them was under specific regimes such as in the case of bankruptcy of the movie producer or book publisher. However, in this case, such reversions take place under different provisions that have to do with patrimonial rights and not with moral rights. Such provisions are also specific and are contained in parts of the codes that do not apply to all works. They only apply in the case of publishing contracts (L132-15, L132-16 and L132-17) or audiovisual production contracts (L132-30). In such case the author does not have to indemnify the other party. That is why such provisions are more popular. I remember working on such a reversion when I was practising audiovisual law in private practice a few years back.

Sebastien Oddos said...

Further to my previous comment, I think that the 'droit de retrait' is important from a philosophical standpoint to assert the author's total control over his work (in time). However, in practice authors use alternative mechanisms (right of integrity (moral right), patrimonial rights (droit d'auteur) or contract law (breach of contract)) should they wish to get their rights back. The 'droit de retrait' and the 'droit de repentir' have damages built in. In addition I am not certain that they would be seem favourably by judges (i.e. the author changed his mind and does not really knows what he wants) instead of focusing on the party exploiting the work.