[Foundation-l] Does "free content" exist in France?

[Stephen Bain]

On 4/21/07, Ray Saintonge <saintonge at telus.net> wrote:
>
> I would very much like to see how the courts have interpreted moral
> rights, and how far they are prepared to go in applying them.  They are
> at least very weak in the United States where they have accepted parody
> as fair use.

Some well-known moral rights cases have related to (in all of these
the moral rights were held to be infringed):

* the broadcast of a colourised version of a black-and-white film;
* the performance of a play with female characters playing the two
male leads, contrary to the writer's stage directions;
* the disassembling of a painting painted in six panels into individual panels.

These are all cases relating to the "right of integrity", which isn't
really defined anywhere (that I know of, some countries may have
defined it when implementing the Berne Convention). It's usually taken
to be mainly about the integrity of the artist and their artistic
vision.

My suspicion (IANAL) is that parody would not be considered an
infringement of the right to integrity in most cases, since in most
cases if it's obvious that it's parody, it's also obvious that it's
not meant to be representing something that is part of the original
creator's artistic vision, indeed quite the opposite.

> Also if moral rights are to continue in perpetuity, who has a right of
> action.  If someone were to publish a pornographic version of the
> correspondence between Héloise and Abelard who would be in a position to
> file a complaint about them.  They are not known to have any
> descendants.  Perhaps the Catholic Church? :-)

I'm not familiar with all the various statutory schemes (each
signatory implements the Berne Convention differently) but it seems to
me that there are three general possibilities. From narrowest to
widest reach:

* the moral rights expire with the copyright;
* the moral rights expire with the death of the author;
* the moral rights remain with the author's estate on the author's death.

I think it's an open question (again, IANAL) as to whether any moral
rights subsisting in the author's estate could be devised.

-- 
Stephen Bain
stephen.bain at gmail.com