Bad Language

Photo of the Assembly of French Polynesia, by "greg.road.trip", subject to Creative Commons Licence - http://creativecommons.org/licenses/by-nd/2.0/deed.en_GB
(http://www.flickr.com/photos/psykedelic61/7910126162/) 

This is a little off topic again, but it was too intriguing not to write about. Today’s case was heard in the Conseil d’État, France’s highest court for administrative cases. It concerns a law passed by the Assembly of French Polynesia, reforming benefit payments for the elderly there. The Assembly had and has the authority to legislate for French Polynesia under the powers conferred by a law of 2004. This used a similar reserved powers model as the Scotland Act of 1998, where powers are deemed to be devolved if they are not explicitly reserved, with a similar set of reserved powers, though with the addition in the case of Polynesia of crime, justice and local government. This law was challenged on various grounds by people who stood to lose from the reforms. They pursued this challenge through the administrative tribunal system, which in France is a parallel system of courts for administrative law, culminating in a highest court separate from the rest of the justice system, the Conseil d'État. The challenge was on various grounds, including that the law exceeded the powers devolved to the Assembly, or that it violated private property rights protected by the European Convention on Human Rights. However, all these arguments were rejected by the Conseil d'État. One argument was accepted though, and was sufficient to strike down the law.

During the passage of the law through the Assembly, some of the legislators had spoken in Tahitian. This is the indigenous language of the island of Tahiti, where most of the population of French Polynesia live. According to the 2007 census, about 70% of French Polynesians speak French at home, while about 30% speak indigenous languages, though in fact the Polynesian languages are more spoken in the remoter islands, with French even more dominant on Tahiti itself. The 2004 autonomy statute recognised the Tahitian language, saying that “La langue tahitienne est un élément fondamental de l’identité culturelle : ciment de cohésion sociale, moyen de communication quotidien, elle est reconnue et doit être préservée.” “The Tahitian language is a fundamental element of cultural identity, cement of social cohesion, means of daily communication, it is recognised and must be preserved.” However, it also said “Le français est la langue officielle de la Polynésie française. Son usage s’impose aux personnes morales de droit public et aux personnes de droit privé dans l’exercice d’une mission de service public ainsi qu’aux usagers dans leurs relations avec les administrations et services publics”, “French is the official language of French Polynesia. Its usage is essential for public bodies and for private bodies excercising a public function as well as for members of the public in their relations with public bodies”. In this case, the Conseil d'État said that since French was the official language, the fact that some of the debate on this law had taken place in another language, even Tahitian, meant that some members of the public and members of the Assembly were denied the possibility of having understood what was decided and why. The passage of the law was “tainted with irregularity”, and the law was therefore void.

A similar decision was reached by the Conseil d'État in 2006, also in the context of French Polynesia. A 2005 law allowed, among other things, members of the Assembly to speak in Tahitian or other Polynesian languages. This was challenged by the High Commissioner of the Republic in French Polynesia, and the Conseil d'État ruled that this provision violated the provision of the autonomy statute making French the official language, so was void.

References
en.wikipedia.org/wiki/French_Polynesia
textes.assemblee.pf/textes/documentbox.aspx?id=55426&page=1
textes.assemblee.pf/textes/documentbox.aspx?id=37192&page=1
www.conseil-etat.fr/fr/selection-de-decisions-du-conseil-d-etat/mme-c-et-autres.html
www.conseil-etat.fr/node.php?articleid=2983
www.environnement.pf/IMG/pdf/loi_organique_2004-192_1_.pdf
www.haut-commissariat-polynesie-francaise.pf/Les-missions-de-l-Etat-en-PF
www.insee.fr/fr/themes/document.asp?ref_id=ip1230
www.legifrance.gouv.fr/affichJuriAdmin.do?idTexte=CETATEXT000008262074&dateTexte=
www.polynesie-francaise.pref.gouv.fr/Repartition-des-competences

The ABC of international private law

This case concerned a dispute between a cameraman and the American company ABC News, involving both employment law and intellectual property. I’m just going to look at the intellectual property aspect. The cameraman, after being laid off, claimed that ABC were infringing his intellectual property rights, including moral rights, as the author of various reports and documentaries. The case was decided by the Paris court of appeal in December 2010, and was appealed to the Cour de Cassation, who made their decision in April 2013.

The cameraman relied on Article 5(2) of the Berne Convention, which said that “the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.”. Therefore French copyright law applied, therefore as the cameraman he was the owner of the works in question, since there was no express term in the contract of employment assigning the copyright to the employer. In US copyright law (as in the UK), this term would be implied. ABC argued, however, that Article 5(2) concerned the protection of rights and the means of redress, not their initial attribution. Therefore, the French conflict of law rules should apply, and these would apply the copyright law of the country of origin of the work. Since this was the United States, US law would apply and the copyright in the reports filmed by the cameraman would have been passed to ABC by an implied term of his contract of employment. This argument was accepted by the Paris court of appeal.

The cameraman argued in response that not only had the court of appeal misinterpreted Article 5(2), but that in any case, even if the Berne Convention didn’t apply, the relevant law would be the country of first broadcast, not the country where the work was created, and that since the reports were broadcast simultaneously across the world, France was as much the country of first broadcast as the US was.

The Cour de Cassation accepted the argument that Article 5(2) did apply to the initial attribution of copyright, so French law applied, and the cameraman did own the rights.

References

www.courdecassation.fr/jurisprudence_2/premiere_chambre_civile_568/347_10_25996.html

www.legifrance.gouv.fr/affichCode.do;jsessionid=473AF0D97B0FDA9B58431550D073139D.tpdjo12v_1?idSectionTA=LEGISCTA000006161633&cidTexte=LEGITEXT000006069414&dateTexte=20130531

www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000027304670&fastReqId=1156585002&fastPos=3

www.legislation.gov.uk/ukpga/1988/48/section/11

www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P109_16834