[MEDIA, COPYRIGHT]

CA Paris, Pole 5, Ch 2, February 16, 2018

Rare fact: the SCAM (Civil Society of Authors Multimedia) was recently assigned by three journalists reporters, directors and chief operators, for the annulment of a decision of its board of directors and the amendment of an article of its general regulations.

It should be remembered that this collecting and distributing society manages the remuneration of authors generated by the exploitation of documentary and documentary audiovisual works. To allow this distribution, SCAM asks its members, authors, to declare by bulletin the works of which they are authors as well as the identity of their possible co-authors.

However, the SCAM explains being confronted with an increasing number of declarations, as for works of journalistic nature such as reports. These emanate in particular from journalists or technicians (camera operators, editors) posing as co-authors and regularly receiving a portion of copyrights redistributed by the SCAM.

Although it does not exclude that a technician can be co-author of a documentary or a report, when he contributes to the work by a personal and specific creative contribution, the SCAM considers that this quality must be established on a case by case basis. Indeed, according to her, the systematization of declarations has led to copyright royalties becoming a mere complement to remuneration or a form of bonus that is required by technicians regardless of their actual creative contribution when negotiating their contract with the producers.

On the basis of these findings, SCAM suspended, as a precautionary measure, the allocation of rights for works where technicians appeared as co-registrants, without providing a copy of the copyright agreement with the producers, proving their authorship.

The Board of Directors of SCAM then decided, in early 2015, that it was necessary to confirm, on the one hand, the advisability of conducting frequent random checks on all declarations, and, on the other hand, , that any bulletin had to be accompanied by corresponding author contracts. The board added that when a declarant can not claim for his benefit the presumption of the article L .113-7 of the code of the intellectual property, he must communicate to the SCAM a contract or a rider to his contract of technician designating it expressly as co-author of the work, and clearly showing his specific creative contribution.

Following this decision, SCAM amended the text of Article 14 of its General Regulation. 

It was then that three journalists reporters, directors and chief operators decided to assign the SCAM, on several bases, to see cancel these decisions. In vain.

The Court of Appeal upheld the judgment at first instance, finding that the need to provide documents to support the fact that the declarant is an author is not a new requirement imposed by SCAM on its associates. That obligation was already covered by Articles 6 and 14 of its General Regulation, which provided that any signatory to a bulletin must, at the request of SCAM, provide any document proving its status as a author.

La Cour rappelle ensuite que les sociétés de gestion collective, qui ont la charge de collecter puis de répartir les droits d’auteur, doivent défendre les droits de leurs adhérents et s’assurer que les redevances sont bien reversées aux réels titulaires des droits.

Enfin, après avoir rappelé qu’il n’appartient ni à la SCAM ni aux auteurs présumés de l’œuvre de juger qui est auteur et qui ne l’est pas, mais à la juridiction compétente saisie en cas de litige, la Cour d’appel décide qu’il entre bien dans l’objet social de la SCAM d’établir les modalités de distribution des droits qu’elle gère.

Registrants other than scriptwriters or directors will have to be more attentive to the documentation they provide to SCAM in addition to their newsletter. Producers of works in the SCAM repertoire must, for their part, make sure to specify in the contracts that they write what is the creative contribution of the persons they engage and who can claim the quality of author .