Defend the author’s rights

 

---

Author

Jacques Dang occupies several positions in the Francophone world relating to open education. He is currently the secretary general of the board of the Université Numérique, in France.

---

 

The defence of authors’ rights over their works is a social debate that resurfaces in the light of current events: one day recommending the complete and free opening up of works as the common property of mankind, the next advocating a ban on their use to drive artificial intelligence tools.

These differences in approach are not new. As early as the 16th century, divergent solutions emerged, with the United Kingdom granting a monopoly on the reproduction of works to a guild of printers in 1557, for political reasons of censorship, while in France, Ronsard obtained a personal royal privilege in 1554 for an unlimited period, valid for all works, whether already published or yet to be published, of which he was the author.

These differences took root with the emergence of two major legal systems in the world: civil law, derived from Roman law, and the common law of the Anglo-Saxon countries, and their impact on the protection of works:

• For civil law countries: protection of the rights of the author of a work, anchored in intellectual property law
• For common law countries: copyright, regulations governing the monopoly on the reproduction of works

These differences are reinforced by the place of contracts (which implement copyright) in the hierarchy of legal norms in each of the two legal systems (after public law norms for civil law, with virtually no hierarchy for common law).

Mapping civil law and common law countries

Initially, these divergences produce limited effects, insofar as these legal systems are applied to a geographically limited territory, that of each country. 

But with the development of international trade, the need to bring legal systems closer together in order to obtain homogeneous rules at international level gradually took hold. 

The Berne Convention of 1886 was the first step towards harmonisation, even though the United States did not sign up to it until a century later, maintaining its reservations about the moral rights of authors. This Convention and the international agreements that complement it aim to harmonise the treatment of copyright and authors’ rights throughout the world by agreeing on a set of minimum protections that must be incorporated into the national legislation of the signatories. International agreements are negotiated, agreed and signed by countries. These agreements therefore bind countries and not individuals.

As a general rule, these international treaties do not precisely determine the legislation in force in a country. It is the States or groups of States (European Union, African Intellectual Property Organisation, etc.) that enact their own legislation in this area. Individuals must comply with their national copyright legislation.

With the emergence of digital technology, which is producing a disruption comparable to that of the printing press and Gutenberg, the licence contract is becoming an appropriate response in both copyright and authors’ rights countries. It is a private law contract between one or more authors and one or more users.

To open up access to their works, authors can use open licence agreements, which go beyond free use of the work and grant the user additional permissions, such as redistributing the work, modifying it or translating it.

The situation in France and in civil law countries

In civil law countries such as France, copyright is part of the protection of literary and artistic property, one of the two branches, along with industrial property, of intellectual property. Licence agreements are part of the hierarchy of legal norms, which places contracts below the constitution, international treaties, laws and regulations. 

The author therefore benefits from the protection afforded by each of these levels of legal standards, whether in terms of his moral rights (prerogatives of respect for the author, the work and the indissoluble link between the author and his work) or his economic rights to exploit his work. In most civil law countries, moral rights are perpetual, imprescriptible, inalienable and of public order: the author may waive his moral rights at any time, but this waiver is binding only until he changes his mind.

This protection applies to licence agreement clauses that are contrary to contract law (e.g. contracts of unlimited duration) or copyright law (e.g. contracts that do not allow the moral right to withdraw a work to be exercised). However, if the work is made available on a digital platform in a common law country, these protections can only be invoked before the jurisdiction of that country if they are explicitly included in the licence agreement.

The legal protection of authors’ rights is therefore well assured in civil law countries. The technical implementation of this protection and the economic compensation for breaches of this protection are perhaps more fragile.

 

Please note that this article has been translated with the help of artificial intelligence and reviewed by individuals who are not professional translators. Despite our efforts to ensure accuracy and fidelity, errors or inaccuracies may remain. Feel free to let us know at: chaireunescorelia@univ-nantes.fr