Les Miserables Part Deux

In addition to the copyright held by the author of a work of art or literature, the Copyright Designs & Patents Act 1988 endows the author with moral rights. These had long existed in other countries, notably France, but were a new arrival in the UK. Moral rights remain with the author, they cannot be transferred, & include principally the right to be identified with the author & the right not to have the work treated in a derogatory way. Not all works have moral rights attached, for example software does not, & they are also excluded for works created in the course of employment.

In the UK, these rights last as long as the copyright itself. However, in France they are eternal. This was highlighted recently in the case of the sequels to Les Miserables, a work long out of copyright, since Victor Hugo died in 1885. These sequels are “Cosette ou le temps des illusions” & “Marius ou le fugitif”, both by Francois Ceresa & both taking relatively minor characters from the original.

Pierre Hugo, great-great-grandson of the author, & the Société des gens de lettres, one of whose stated aims was to protect the moral rights of its members, brought a civil case against the sequels, on the basis that although there had been previous adaptations of his works & use of his characters, it had been established that Victor Hugo would not have approved of a sequel to Les Miserables. These novels by Mr Ceresa had not merely used characters from but puported to be sequels to Les Miserables. It was argued that Les Miserables was not merely a novel but was a work of philosophy & politics, “un véritable monument de la littérature mondiale”, truly a monument of world literature, so an attempt to continue the story must violate Victor Hugo's moral rights. On March 31st 2004, the Paris court of appeal agreed, & awarded 1 euro in damages.

The publisher, Plon, appealed to France's highest non-administrative, non-constitutional court, La Cour de Cassation. It heard the case on January 30th 2007, & sought to apply both the statutory moral rights & the right to free expression contained in ECHR Article 10. The Cour de Cassation held that the court of appeal had based its reasoning solely on the nature of the original work, without looking at the nature of the supposedly infringing works, & whether these in fact affected Victor Hugo’s work or caused any confusion for readers as to their paternity. The court of appeal had also not considered the right to free expression of Mr Ceresa. The case was therefore remitted to the court of appeal to reconsider, with these considerations in mind. In December 2008, the court of appeal pronounced its decision, finding in favour of the sequels, which are now freely available.

By contrast, since moral rights in the UK expire with copyright, the descendants of Jane Austen have no recourse against “Pride & Prejudice & Zombies”, which rewrites her novel in order to insert zombies into the story. I’ve heard that it’s very clever & funny, but I suspect that in France it might have collided with Austen’s moral rights.

References
en.wikipedia.org/wiki/Pride_and_prejudice_and_zombies www.ipo.gov.uk/types/copy/c-otherprotect/c-moralrights.htm
www.courdecassation.fr/jurisprudence_2/premiere_chambre_civile_568/arret_n_9850.html www.lefigaro.fr/flash-actu/2008/12/19/01011-20081219FILWWW00472-suitemiserables-les-heritiers-perdent.php
www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006069414
www.legifrance.gouv.fr/affichCode.do;jsessionid=70CA1BF0F2B8D91F3610D4745F047C28.tpdjo14v_1?idSectionTA=LEGISCTA000006161636&cidTexte=LEGITEXT000006069414&dateTexte=20121008
www.legislation.gov.uk/ukpga/1988/48/contents www.legislation.gov.uk/ukpga/1988/48/section/80