Thursday, 25 October 2007

Copyright versus right to information

Cour de Cassation (1st Civil Chamber), 2 October 2007, n° 05-14.928

On 9 March 2005, the Court of Appeal of Paris (4th Chamber, Section A) ruled that the publisher Hachette Filipacchi committed acts of infringement in 1998 by reproducing the FIFA trophy on the cover of ‘Onze Mondial’, its French football magazine.

The Court of Appeal held that the copyright exception in Article L.122-5 of the Intellectual Property Code (‘IPC’), which provides that ‘analyses and short quotations justified by the critical, polemic, educational, scientific or informatory nature of the work in which they are incorporated’, was not applicable in this case, since the reproduction did concern the right to information.

Hachette Filipacchi lodged an appeal with the Cour de Cassation (the French Supreme Court for civil and criminal matters), which confirmed the Court of Appeal’s judgement. The Cour de Cassation considered that the right to information, as provided for in article 10 of the European Convention on Human Rights, is limited by other identically protected rights, such as intellectual property rights. As the Court of Appeal noted in its judgement, the reproduction of the trophy did not appear in a document of an informational nature but in a photomontage which symbolically illustrated the victory of the famous football players represented on the cover.

The Cour de Cassation therefore ruled that the litigious reproduction, which exceeded the mere reference to the current event in question, did not contribute to public information, and was therefore an unauthorised act of exploitation of the work.

In the present case, the Cour de Cassation struck a balance between the right to information and the rights of the rightholder. However, it appears from the rulings of the Court of Appeal of Paris and of the Cour de Cassation, that if the magazine had published information on the trophy itself in the same magazine, the reproduction would probably have been authorised by Article L.122-5 IPC, even if the publisher’s aim had only been to make the magazine more attractive (see D. Poracchia, “Trophée sportif, droit à l’information et courtes citations”, in Lamy Droit des Médias et de la Communication). In certain situations, it will be difficult to strike a balance…