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