This article was published by the French office of the firm - Jacobacci Avocats

In a recent ruling[1], the French Court of Cassation was faced with the opportunity to untangle the delicate issue of what law governs the initial ownership of related rights belonging to performers and producers of phonograms on sound recordings of a performance in an international context.

The facts at hand are simple: an action was filed before French Courts in 2006 by four famous Jamaican reggae musicians claiming that the commercialization of several recordings without their consent in France amounted to an infringement of their related rights as performers and/or producers of phonograms.

In this context, the Court first had to ascertain which law governed the ownership of the rights, both in space – given that the litigious songs were first recorded in Jamaica and the alleged infringing acts happened in France – and in time.

The time aspect is relevant because the sound recordings at issue were made between 1964 and 1985, i.e. before the texts invoked by the parties in court came into effect. Indeed, the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations was not ratified by Jamaica until 1994 and the French law on Related Rights was adopted only in 1985.

On that point, the earlier decision of the Court of Appeal in the case at hand[2] found that for the purposes of conflicts of laws, the application of both the Rome Convention and the national law depends on the date the litigious infringing acts occurred, and not on the date of when the sounds were first fixed in media[3].

Regarding conflicts of laws as applied to space, the Court of Cassation’s ruling accepted the Court of Appeal’s position that French law applies, but reached the conclusion on different grounds, asserting that conflicts of laws rules dictate that the question of ownership of related rights of performers and/or producers of phonograms is governed by the law of the country in which protection is claimed.

The Court therefore concluded that the sole fact that the claims arose out of the commercialization of the litigious recordings in France provided grounds for application of French law.

Thus, current prevailing case law demonstrates that, in determining what country’s law should be applied, both the existence of the related rights and their use are considered in light of the law of the country where protection is sought.

This finding reasserts a position that had already been adopted by French courts not only for related rights of performers and/or producers of phonograms, but also for copyrights, where French jurisprudence has adopted similar rules for conflicts of laws on the basis of Article 5.2° of the Berne Convention for the Protection of Literary and Artistic Works.

Yet in the context of copyright disputes, the application of Article 5.2° has generated uncertainties; it has long been unclear whether ownership of the copyright is to be evaluated in light of the law of the country in which the protection was sought and, if so, what the scope of that protection should be.

The Court of Cassation has also recently put an end to this uncertainty by deciding[4] that the law of the country in which protection is claimed should govern the issue of copyright ownership – so that now, the existence and exercise of both copyrights and related rights are to be viewed by French law as governed by the law of the country where protection is claimed. In practice, this move should simplify this area of law.

These recent decisions by the High Court of France therefore keep pushing towards an ever more harmonized and unified set of rules for determining the governing law in copyright and related rights disputes, which, by nature, often involve international elements.

A word of caution considering the substance of the laws applicable to these cases: it is important to note that French law imposes much stricter formal requirements for contracts assigning copyrights or related rights and is much more protective of the author and artists than most foreign laws. Therefore, applying French law each time an action for infringement is brought before French courts may create a significant degree of legal uncertainty for an assignee of copyright or related rights when the assignment complies with foreign but not French laws.

Harmony versus security, security versus harmony: the Court of Cassation has chosen to put an end to the hubbub.