Has France Just Made the Ultimate Copyright Faux Pas Fomented with a Forbidden Formality?

THE REGISTER is reporting that:

Last week France passed a law that permits the state to seize authors' rights on books published before 2001. Scribes have just six months to opt-out, or lose their moral rights and the ability to determine a price for their work.

It's essentially a Compulsory Purchase Order for intellectual property - the author's work is no longer their own. Ownership is instead transferred to a quango answering to the French Ministry of Culture, which is authorised to make it digitally available. Publishers are the big beneficiaries.

Here are other comments:
http://econsultancy.com/us/blog/9171-france-stealing-books-isn-t-piracy-when-the-government-does-it
http://blog.authorsrights.org.uk/2012/02/28/france-guillotines-copyright/


Here's the law itself.


This appears to be beyond astonishing, if the law does what these reports say. It would appear to be prima facie contrary to the Berne Convention - for the same reasons as many have argued in the Google Books case. Copyright rights arise automatically and require no formalities, at least for citizens of other countries . If you have to "opt out" of a mechanism in another country to protect your rights, that's arguably a forbidden "formality" under Berne and TRIPS.


This is particularly odd coming from France, supposedly the most copyright friendly jurisdiction anywhere and the birthplace of collective licensing. 


While many may think that this is a good idea and the way to solve a huge problem with "orphan works" and the "digitization of commercially unavailable books", there will be enormous controversy about whether this is legally viable. This will mainly revolve around whether, even if France can impose such a regime on its own citizens, it can do so to foreigners - and whether any illegality under international law can be saved by the "opt-out" - especially given the severely short time limitation. 


At any rate, this is unusual news in an era when the rights ratchet seems only to be going upwards.

HPK

More US Treaty Troubles

(Philip Johnson's "Glass House"/Business Week)

There has been a potentially very important interim ruling in the mega litigation in the USA involving NFL, Premier league, et al against YouTube.

Judge Louis Stanton of the Southern District of New York has ruled that infringement of foreign works (other than live broadcast events for which 48 hour advance notice has been given to potential infringers) cannot given rise to statutory damages under US Copyright Act unless the work was registered in in the USA in a timely fashion - which will seldom be the case.

While this might not have a huge effect on the particular litigation against YouTube, it is great news overall for Google, which owns YouTube, and any other parties that host foreign works on US servers.

Naturally, alarm bells are ringing about whether this puts the USA into (yet another) violation of the Berne Convention and TRIPS, and presumably NAFTA as well. The essential point of Berne is that no country can impose “formalities” on nationals of another member country.

Judge Stanton considered all of that along with the legislative history in some detail but ruled on the wording of the statute, not the treaties - which is what Courts are supposed do if they believe that the wording is clear. As is the case in Canada, treaties are not self executing in the USA.

Here’s good blog commentary by AmeriKat, a new kitten to be watched, and good old reliable Out-law.

This ruling will likely be appealed.

Other US violations of Berne include these:

• The USA has also been ruled to be in violation of Berne in the “Section 110" matter at the WTO, which goes back to 2001.

• The USA has no “moral rights” other than for visual works, although it cleverly exempted moral rights from the dispute resolution process under TRIPs.

There's an old adage about people who live in glass houses not throwing stones.....

Of course, none of this will stop certain lobbyists in Canada who serve primarily US interests and even the USTR itself (which is heavily influenced by these lobbyists) from whining about Canada's failure to ratify the 1996 WIPO treaties, when Canada is under no such legal or other obligation.

HK

PS - "AC" makes an interesting point in the first comment below. This reminds me of the obvious fact that Canada does not make statutory damages conditional upon registration. So, foreign owners can - and do - threaten to use this powerful weapon in Canada. If this decision stands, it will be yet another example to add to my growing list of how Canadian copyright law is already stronger than US copyright law.

"More Than a Feelling" about Less Than Adequate Moral Rights in the USA

Here's an example of why the USA needs moral rights in its copyright law. According to CTV:

The chief songwriter and founder of the band Boston has more than a feeling that he's being ripped off by Mike Huckabee.

In a letter to the Republican presidential hopeful, Tom Scholz complains that Huckabee is using his 1970s smash hit song "More Than a Feeling" without his permission. A former member of the band, Barry Goudreau, has appeared with Huckabee at campaign events, and they have played the song with Huckabee's band, Capitol Offense.

Canadian law has real moral rights protection and prevents a work from being " used in association with a product, service, cause or institution" without permission. See s. 28.2 of the Canadian Copyright Act.

Maybe somebody should put the USA on a priority watch list. It's lack of adequate moral right protection puts it out of compliance with the Berne Convention, although it cleverly managed to make that a non-issue for dispute purposes in TRIPS.

And that's not the only reason. I'll get around to others.

HK