by Sebastien Lachaussee et Rym Soussi , published on 9.08.2011

Transmedia professionals often bring it up: French legislation has trouble adapting to the needs of its creators’ projects. It’s actually quite restrictive when it comes to UGC or public domain resources. Sébastien Lachaussée Lachaussée, Attorney at Law, and Rym Soussi, explain to us what Creative Commons Licenses are and how they can be used in France.

Creative Commons Licenses are born from the General Public Licenses (GPL) imagined by Richard Stallman, a researcher at MIT in Boston. By operating a free cession of rights for works registered under this license by the author to any user, Creative Commons Licenses want to offer a legal framework to share content created by the Internet revolution. After Free Software Licenses, Creative Commons Licenses have been met with great success on the web given the numerous criticisms of Internet users towards intellectual property rights, judged as too exclusive, too numerous, too heavy for a digital universe. It’s true that the efficiency of our legal systems is heavily compromised by the ease of reproduction of works on the Internet, with the numerous ways of exchanging, sharing and transferring data and documents. How do these licenses compare to classic contractual relations and what is their relationship with intellectual property rights?

The mechanism

Creative Commons licenses want to take advantage of this ease to exchange by offering a simple legal tool, which guarantees both a free circulation of the works on the Internet, but also the protection of the authors’ rights. The fundamental characteristic of these licenses is their modular aspect. The vulgarization and simplification work, namely through the use of pictograms, make them accessible to all users, who, as long as they respect the exploitation conditions of the work, can exchange it, duplicate it, change it or even exploit it commercially. These licenses allow creators to easily share their work and users to use them without having to previously contact the creator to ask for his authorization.

Any type of work, as long as it’s original, can be concerned. Authors choose the most suited contract for the distribution of their work among several types of contracts offered by the Creative Commons Foundation. The Creative Common licenses define the facts and the conditions under which the free use of the work is authorized.

In France, the author has the choice between six licenses:

-          “Attribution” license

-          “Attribution – No Derivs” license

-          “Attribution – Non Commercial – No Derivs” license

-          “Attribution – Non Commercial” license

-          “Attribution – Non Commercial – Share Alike” license

-          “Attribution – Share Alike” license

 

This way, the author can agree to the duplication of their work with derivatives or share alike or on the contrary, forbid any changes. He can also authorize the commercial use or on the contrary, forbid it, or allow the distribution under the same conditions, all these different options can be combined as long as the author is always credited.

Creative Commons and authors’ rights

The system established by the Creative Commons Licenses cannot ignore French intellectual property rights. Yet, the very principle of these licenses is a paradox and a disruption of French copyright. Whereas copyrights are exclusive rights that the owner trades and sells, licenses aim to use authors’ rights to favor sharing and exchange and lead to a free circulation of the work.

This reversal is a “re-structuring” of authors’ rights and encounters some difficulties in terms of the legality of these licenses. First of all the term “license” is not recognized by the “Intellectual Property Code”. The only contractual mechanism recognized by literary and artistic property is cession (L. 122-7, L. 131-3 du CPI). The latter is defined in terms of length and territories, contrary to free licenses which are usually defined by the lack of timing and where the object of the contract goes further than what the law permits since it gives a non exclusive exploitation authorization, with the possibility of changing the work and redistributing it.

The work of the author registered under Creative Commons Licenses remains ruled by the Intellectual Property Code. The moral right, an inalienable right of the public order, which the author cannot give up, still binds the users of the work. The outcome is that a contract where an author would completely give up his attribution right would be worthless. Consequently, since the second 2.0 version of the Creative Commons Licenses, “attribution” has become an essential condition of Creative Commons Licenses, in conformity with French authors’ rights.

Furthermore, French law does not recognize the general cession of rights or the notion or “royalty free”. Consequently, contracts that allow a cession of rights for all forms of exploitations, all media, ad vitam aeternam and for the whole world are judged abusive and run the risk of being worthless. The reason being that they don’t clearly define the limits of the cession of authors’ rights as described in article L 131-3 of the Intellectual Property Code.

This question is a good illustration of the difficulties that these licenses met when transposed to the existing French legislation, especially in terms of moral rights.

However, Creative Commons Licenses do try to conform to the formality of literary and artistic rights contract cessions as described in article L 131-3 of the Intellectual Property Code. They thus have to mention each right yielded (specifically if the cession is with regards to a representation, reproduction or translation right) and limit its territory, its destination, the location and duration of the exploitation (which must necessarily be determined and limited in time). The protection of the work through the Creative Commons License and its exploitation duration therefore faithfully conform to the Intellectual Property Code. The territory, for the whole world, is also identified and copied on French law.

Furthermore, regarding free cession, article L 122-7 of the Intellectual Property Code says that “the right of representation and the right of reproduction are accessible for free or at a cost” and article 122-7-1 specifies that “the author is free to make his work available to the public for free, provided the approval of eventual coauthors and those of other parties involved as well as with respect to other agreements that he has entered.” These dispositions were specifically inserted into our legislation to take into account “free” licenses.

However, while jurisprudence condemns contracts that don’t allow serious remuneration for the authors based on article L.131-4 of the Intellectual Property Code, doctrine and jurisprudence admit its legality within the framework of article L.122-7, when the author makes his work available in a free and voluntary manner in exchange for the publicity seeked through an increased distribution of the work. Finally, it’s unlikely that a judge would consider a free cession through licenses allowing a commercial exploitation of the work, legal.

But the main conflict between authors’ rights and Creative Commons Licenses resides in the principles of moral rights. The latter is of public order, inalienable, imprescriptible and intangible, making it impossible for the author to give it up. With this regard, the question of the validity of licenses, whose main interest is to authorize derivatives of the work, is highlighted.

It applies first and foremost with regards to the right of respect of the work listed in article L212-1 of the Intellectual Property Code, thanks to which the author can oppose any changes that may distort his work. In a context such as that of free licenses, how can the author evaluate the change made to his work and at which moment can he decide that it impedes on his right to the respect of his work? A tentative answer to this might however be in vain since the right of respect of a work can be an obstacle to such an authorization. The principle of inalienability of the right of respect of a work, a principle of public order, was recalled by the French Supreme Court of Judicature according to which it “opposed itself to the fact that an author abandon to the transferee, in a preliminary and general way, the exclusive appreciation of the use, distribution, adaptation, withdrawal, adjunction and changes to which the latter might choose to proceed”. Consequently, only ratifications are valid, meaning approved abdications with full knowledge of the subsequent consequences. It’s logical not to conceive that the author would accept changes to his work without prior knowledge of what they might be. The obstacle of the right of respect of a work submitted to common authors’ rights therefore runs the risk of questioning the legitimacy of Creative Commons Licenses. However, the fact that an author might authorize changes in advance is not equivalent to a renunciation of the right of respect of a work since, in the hypothesis where the change would alienate or misrepresent the original work, a recourse based on the right of respect in case of prejudice is still possible.

In conclusion, despite the efforts of the Creative Commons Licenses writers, on the one hand, and by French law, on the other, compatibility problems remain regarding Creative Commons Licenses anticipating the possibilities of changing a work or using it commercially. If Creative Commons Licenses are an efficient tool to create a framework for the free sharing of work, all commercial exploitation will not be able to forgo the use of classic cession contracts.

Article initially published on avocat-l.com