To be or not to be (the copyright holder)
Cédric Manara · Journal of Intellectual Property Law & Practice · 2024
Plaisante justice qu’une rivière borne, Vérité en deçà des Pyrénées, erreur au delà. (‘Pleasant justice that a river bounds, Truth this side of the Pyrenees, and error beyond.’) In these now famous words, the philosopher Pascal was evoking truth in law and the possibility that one court in France and another in Spain might reach different decisions on the basis of identical facts. Not only are the Pyrenees the mountain range that separates these two European countries, but they are also one of the natural habitats of the marmot, a peaceful animal with a thick furry coat that has been the inspiration for many a manufacturer of cuddly toys. And so it was that two companies each created a toy designed for the delight of young children. Finding that each other’s creations were too similar to their own and displaying far more belligerence than the peaceful animals themselves, the two companies ended up before the courts. The Paris Court of Appeal found in favour of one of the parties … and the Lyon court ruled in favour of the other! And so it was that the case reached the highest court in the land, the Cour de Cassation, which held that: ‘From a comparison of these two decisions, it follows that company [A] is both the owner of the copyright in the marmot model and that it is not’.1 Even though there is no exclamation mark at the end of this sentence, it is likely to leave most IP lawyers dumbfounded … How can you be the owner of a right that you do not have? Or perhaps we should pose this question: How can you not own a creation in which you have copyright? The situation is extraordinary because this has happened within one single country! This is why the French Cour de Cassation has rightly ruled that these two decisions are irreconcilable, that they result in a failure of the law, and that they must be overturned. For now, then, the cuddly marmot will have to return to another court in order to discover the true identity of its owner. However, what may seem bizarre, even comical, within a single country raises other practical difficulties when considering the position between different countries. Let us imagine—proving Pascal right posthumously—that a French judge and their Spanish counterpart hearing the same case at the same time consider that the same creation is original, and therefore protectable under copyright law, but disagree as to which of the parties to the case is entitled to copyright protection? As France and Spain are both members of the European Union, both courts will have rendered their decisions on a harmonized point of law, the Court of Justice of the European Union (CJEU) having ruled that the concept of a work within the meaning of copyright law must be interpreted and applied in a uniform manner in all EU Member States. If our manufacturers of similar, but legally distinct, cuddly toys promote their toys online or sell them on virtual marketplaces, what will the operators of these services be required to do if one of them receives a request for the removal of content, which they host on the grounds that it infringes an existing right, and the other submits a counter notification based on its own rights, which are no less legitimate? Fortunately, this scenario is likely to be rare, but not merely hypothetical. The ‘war of the marmot’ reminds us of the advantages of working towards uniformity in copyright law—at least across the EU as a starting point.