Droit de non-paternity

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As droit de non-paternité ( French , German literally "right to non-authorship"; correspondingly also right to recognition of non-authorship ) is the legal right to defend oneself against the claim to be the author of a work or other product be that in truth someone else created. In the legal systems that provide for a general droit de non-paternité , it is usually either part of (general) personal rights or copyright . In addition, the incorrect designation of authorship can also violate other rights (such as fair trading law ) depending on the constellation .

National regulations

Germany

General personal rights

According to German law, a right of non-recognition is usually recognized as an outcome of the general right of personality . The general right of personality is a legal institution derived from Article 2, Paragraph 1 in conjunction with Article 1, Paragraph 1 of the Basic Law , essentially developed under judicial law, which, as an "unnamed right to freedom", serves the purpose of impairing the narrower personal sphere of life, self-determination and to fight off the basic conditions of personality development. The Court of Appeal looked Against this backdrop, in a decision of 1965 in the assertion of a publishing house, a misplaced by him Roman have served as a template for a particular film, have a defamation to the detriment of the novelist, who by such experience an "injury" , "That as a respected writer a foreign work [...] was attributed to him", and this also regardless of its quality, since "nobody [...] [need] accept that a foreign work is passed off as his, and then on In this way there is also the risk of being accused of adorning himself with foreign feathers ”. The Federal Court noted in his Nolde Grant Decision of 1990 states that an on-the-market achievement of watercolors in the style and the Pictures Emil Nolde painted and provided with its signature, a "serious impairment of the artistic personality" Nolde and in this way intervene in his general right to privacy. The possibility of defense from the general right of personality persists beyond the death of the person concerned ( post-mortem right of personality ); In the Nolde decision, therefore, the fact that Nolde's death was more than thirty years ago was not regarded as an obstacle to a corresponding claim.

Naming rights

The naming rights ( § 12 German Civil Code ) a natural person is violated when Mom used her name without authorization, thereby triggering a so-called assignment confusion and hurt the legitimate interests of the named carrier. For the name to be used, it is not necessary that the name be used to denote a product or service; In the sense of a droit de non-paternité , the misstatement on a painting is probably also a use of the foreign name. The pure misallocation to a third party in the context of mere naming, for example in the context of a publication, does not in itself lead to a violation of the naming right due to lack of use. According to the case law of the Federal Court of Justice, the right to a name is also ruled out as a basis for claims in the case of postmortem claims of authorship, as it expires with the death of the name bearer.

copyright

The German Copyright Act (UrhG) provides in § 13 a right to recognition of the authorship of the work. This results in the author's claim to be named, but not, according to the prevailing opinion, a claim by a third party against the incorrect attribution of another work to him. From a copyright point of view, a defense claim against incorrect attribution would only be conceivable if the attribution recipient's own copyrights affect the work in question: for example, a forger who creates a painting so closely based on an existing work by a well-known artist that he processes it with it ( § 3 UrhG) or edited or redesigned ( § 23 UrhG), and then attaching the (forged) signature of the known artist to the picture, wants and will thus regularly create the impression that the known artist was the creator of the entire (edited) work . In this constellation, the artist might also have a right to non-naming against the forger based on his right of recognition, because § 13 UrhG also includes the right to demand an author's designation from which his function (here for example: mere authorship of the unedited work) emerges. In addition, Gantz suggests that, in the special case in which a work of art by an author is shown together with forger's style forgeries in the same exhibition, a right to not be able to name his name derived from the integrity right of § 14 UrhG.

Discussion of legal policy

Some literature advocates an expansion of the droit de non-paternité . Gantz states a “post-mortem protection gap” between the end of protection from the general right of personality (which fades over time) and the regular copyright protection period of 70 years (from the death of the author). He suggests a solution under trademark law, in which the term “commercial designation” in Section 5 of the Trademark Act would be expanded to include “copyright designations”, including the “name [s], the signature and others on the persons of the creator of works in the Marks indicating the meaning of copyright law “wants to be understood. Wilhelm Nordemann , in his proposal for a Copyright Contract Act, published in 1991, advocated consolidation of copyright law, in which Section 13 UrhG should be supplemented by a paragraph stating that “the author” has the right “to demand that a work created by someone else is not referred to as originating from him ". Because the legal protection of the artists affected by forgeries is currently "highly imperfect"; The proposal would "put the claims of the data subjects on a secure basis [...]" and, in the interests of the close link between copyright law and the creator personality, would also ensure that the law is granted to "the author and his universal legal successor" - and not, as is the case with approaches to personality law, " the relatives as such ”- is due.

Austria

The prevailing Austrian doctrine does not see the author's right of recognition under Section 20 of the Copyright Act as a basis for a third party to take action against the incorrect attribution of a work. The basis for a claim against the "superseding" of third-party works can - analogously to German law - be in particular the naming law (§ 43 ABGB). In addition, the general right of personality can also be used.

De lege ferenda , Walter considers the introduction of a copyright-based droit de non-paternité worth considering. A corresponding regulation has the advantage of “clearly describing the legitimation for asserting post mortem protection in the person of the copyright heirs and clearly defining the“ term of protection ”with that of the general copyright protection period, which is usually 70 years post mortem auctoris is ".

France

The French Code de la propriété intellectuelle , based here in the version of the amendments of October 9, 2016, grants in Art. L. 121-1 Paragraph 1 the right of the author to respect for his name, his authorship (qualité) and his work . As in German law, there is no copyright regulation of a right to recognize non-authorship. However, a number of lower courts have in the past affirmed such a personal copyright claim based on Art. L. 121-1 Paragraph 1. In the literature, on the other hand, the prevailing opinion is that the untruthful attribution of a work to a third party does not fall within the scope of protection of copyright, but must be resolved through the personal rights of the person concerned.

As in German law, adding a wrong designation of the author is sometimes punishable by law. According to Art. 1 of the law of 9 February 1895 on art fraud (loi du 9 février 1895 sur les fraudes en matière artistique) , the fraudulent affixing or showing of someone else's name on a work of painting, plastic art, design, the Art of drawing, engraving or music under penalty.

If a trademark is likely to mislead the public about the authorship of a work or the ownership of a related property right, this is usually an absolute barrier to protection (Art. L. 711-3); the rightful owner of the property right can have it transferred to him if the entry is already in place according to Art. 712-6.

United States

In the United States, a droit de non-paternité is generally recognized. The legal basis used (and thus also the exact scope) differs in the case law, however: it is sometimes argued that it is an intervention in the classic tort of unfair competition . In some cases, the courts subsume false copyright statements also under the trademark prohibition of “ false description ” or “ false representation ” within the meaning of Section 43 (a) of the Lanham Act ( 15 USC § 1125 (a) ). If the subordinated work is of inferior quality and thus damages the reputation of the alleged author, the tort of defamation has also been taken into account.

Other countries

  • Egypt: Not provided for in the Copyright Act (as of 2016).
  • Australia: Australian copyright law provides no right to defend yourself against false claims that you are the author of someone else's work. Conversely, however, it is expressly determined that an author can defend himself against a third party falsely claiming authorship of his work (as of 2016).
  • Belgium: The Belgian Copyright Act does not provide any specific provision against the wrong attribution of a work; In some cases, however, it is recognized in the literature as the reverse of the recognition law (as of 2016).
  • India: A droit de non-paternité is regularly implicitly derived from the copyright law in the literature (as of 2016).
  • Israel: So far no case law on such a constellation; The basis for a claim may be in defamation legislation (as of 2016).
  • Italy: Recognized as a derivation from general civil naming law (as of 2016).
  • Canada: There is no copyright claim to recognition of non-authorship (as of 2016). In Ontario Inc. v. Cineplex Odeon Corp. The Federal Court ruled that there is no violation of copyright law if a company is falsely alleged to be the author of a work used in a musical, but there may be trademark claims in favor of the misnamed.
  • Netherlands: Not foreseen in the Copyright Act (as of 2016).
  • Nordic countries: Not covered by the copyright law in Sweden; However, general civil name law stands in the way of incorrect attribution in a commercial context. According to Danish copyright law, it is illegal to put someone's name or signature on a work of art without their consent; Also, the name or signature of an author may not be affixed to a copy in such a way that the copy could be confused with the original. The Norwegian and Finnish Copyright Acts contain similar provisions (as of 2016).
  • Portugal: According to Portuguese copyright law, an author is not allowed to consent to a work being attributed to him or her. This is based on the fact that the public should not be in the dark about the authorship (status: 2016).
  • Switzerland: The Swiss copyright law does not provide for a separate provision on a droit de non-paternité . In these cases, protection is provided by the general right of personality (but only until the death of the person concerned) (as of 2016).
  • Czech Republic / Slovakia: No copyright droit de non-paternité ; However, the basis for claims is based on the general right of personality (and, depending on the circumstances, possibly also the fair dealing and trademark law) (as of 2016).

literature

  • Sönke Gantz: The droit de non-paternité . V&R unipress, Göttingen 2011, ISBN 978-3-89971-848-5 .
  • Horst Neumann-Duesberg : The special personality right of non-authorship (droit de non-paternité): Differentiation between the “droit de paternité” under copyright law and the “droit de non-paternité” under personal law . In: UFITA . tape 50 , 1967, p. 464-467 . [Germany]
  • Bruno Seemann: A monument protection for celebrities? Thoughts on the droit de non-paternité . In: UFITA . tape 128 , 1995, pp. 31-68 . [Germany, Great Britain, Switzerland, USA]
  • Michel M. Walter : Copyright and personal rights aspects of counterfeiting of art . In: Gerte Reichelt (Hrsg.): Original and forgery: In the field of tension between protection of privacy, copyright, trademark and competition law . Symposium Vienna May 12, 2006 (=  series of publications by the Ludwig Boltzmann Institute for European Law ). MANZ, Vienna 2007, ISBN 978-3-214-11366-7 , p. 97-115 . [Austria]

Remarks

  1. ↑ For example at Dietz / Peukert in Schricker / Loewenheim, Copyright Act, 5th edition 2017, § 13 Rn. 23; Hug in Müller / Oertli, Copyright Act, 2nd edition 2012, Art. 9 Rn. 24; Schack, Copyright and Copyright Contract Law, 8th edition 2017, Rn. 43; ders., Art and Law, 3rd edition, Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155037-9 , Rn. 246.
  2. ↑ See Dietz / Peukert in Schricker / Loewenheim, Copyright Act, 5th edition 2017, § 13 Rn. 23; Schulze in Dreier / Schulze, Copyright Act, 6th edition 2018, § 13 Rn. 16; in detail Gantz, Das droit de non-paternité, 2011, op. cit., Chapter 4; Neumann-Duesberg, The special personality right of non-authorship (droit de non-paternité), 1967, op. Cit., Pp. 465–467; Seemann, Ein Denkmalschutz für Prominenz ?, 1995, op.cit., P. 54.
  3. ↑ BVerfG, decision of June 3, 1980, 1 BvR 185/77 = BVerfGE 54, 148, 153.
  4. ↑ See Di Fabio in Maunz / Dürig, Basic Law, status: 77th EL 2016, GG Art. 2 Rn. 127 f., 147.
  5. ↑ See KG, judgment of March 2, 1965, 5 U 48/62 = UFITA 48/1966, 274, 285 - The golden voice.
  6. ↑ See BGH, judgment of June 8, 1989, I ZR 135/87 = BGHZ 107, 384, 392 = NJW 1990, 1986, 1988 - Emil Nolde.
  7. ↑ See BGH, judgment of June 8, 1989, I ZR 135/87 = BGHZ 107, 384 = NJW 1990, 1986, 1988 - Emil Nolde.
  8. ↑ See BGH, judgment of 23 September 1992, I ZR 251/90 = BGHZ 119, 237, 245 = NJW 1993, 918, 920 - University emblem ; further evidence from Säcker in MüKo BGB, 7th edition 2015, § 12 marginal no. 96.
  9. ↑ See Säcker in MüKo BGB, 7th edition 2015, § 12 Rn. 96; Gantz, Das droit de non-paternité, 2011, op.cit., P. 55.
  10. ↑ See Säcker in MüKo BGB, 7th edition 2015, § 12 Rn. 113–115 (who notes that if someone else's name is given as the author's designation for a document, “[s] chon more” a name can be assumed); Gantz, Das droit de non-paternité, 2011, op. Cit., Pp. 55 f .; Seemann, A monument protection for celebrities ?, 1995, op. Cit., P. 54 f.
  11. ↑ So now BGH, judgment of October 5, 2006, I ZR 277/03 = BGHZ 169, 193, 195 = NJW 2007, 684, 684 - kinski-klaus.de ; left open in BGH, judgment of June 8, 1989, I ZR 135/87 = BGHZ 107, 384, 390 = NJW 1990, 1986, 1987 - Emil Nolde ; see. also Habermann in Staudinger BGB / I, 2013, § 12 Rn. 297.
  12. ↑ See only Dietz / Peukert in Schricker / Loewenheim, Copyright Act, 5th edition 2017, § 13 Rn. 23; Dreyer in Dreyer / Kotthoff / Meckel, copyright, 3rd edition 2013, § 13 Rn. 23; Rehbinder / Peukert, Copyright and Related Rights, 18th ed. 2018, Rn. 437; Schack, Copyright and Copyright Contract Law, 8th edition 2017, Rn. 43; Schulze in Dreier / Schulze, Copyright Act, 6th edition 2018, § 13 Rn. 16; Gantz, Das droit de non-paternité, 2011, op. Cit., P. 35 f .; Neumann-Duesberg, The special personality right of non-authorship (droit de non-paternité), 1967, op. Cit., P. 467; Seemann, Ein Denkmalschutz für Prominenz ?, 1995, op. Cit., P. 53 f .; Higher Regional Court Brandenburg, judgment of October 15, 1996, 6 U 177/96 = NJW 1997, 1162, 1163 - Vote Brecht (“[…] because the legal system has a [ sic ] negative copyright claim to it, not as the author of the intellectual production of another to be represented does not know ”); KG, judgment of March 2, 1965, 5 U 48/62 = UFITA 48/1966, 274, 284 f. - The golden voice ; LG Cologne, judgment of August 9, 2006, 28 O 63/06 = ZUM-RD 2007, 201, 202 f. - sponge sculpture ; LG Düsseldorf, judgment of September 8, 2010, 12 O 430/09 = ZUM-RD 2010, 696, 697; accordingly also BGH, judgment of June 8, 1989, I ZR 135/87 = BGHZ 107, 384, 390 f. = NJW 1990, 1986, 1987 - Emil Nolde. Another view without further justification Carl Schramm, authorship obligation, in: UFITA , 50, 1967, pp. 418–425, here p. 420; also LG Munich I, judgment of June 8, 2006, 7 O 17592/04 = ZUM 2006, 664, 665 - Mondkalender ("The right to be named as the author of a work, as defined in § 13 UrhG, also includes the right not to be named as the author of a […] foreign work […] ”).
  13. ↑ Cf. Gantz, Das droit de non-paternité, 2011, op. Cit., Pp. 36 f., 39–45.
  14. ↑ Cf. Gantz, Das droit de non-paternité, 2011, op. Cit., P. 39 f .; on the right to also require information on the copyright function within the framework of the obligation to recognize, see also Dietz / Peukert in Schricker / Loewenheim, Copyright Act, 5th edition 2017, § 13 marginal no. 22; Dreyer in Dreyer / Kotthoff / Meckel, copyright, 3rd edition 2013, § 13 Rn. 21; Schulze in Dreier / Schulze, Copyright Act, 6th edition 2018, § 13 Rn. 18. Apart from this, claims are of course also made at the level of exploitation law, because adaptations or other redesigns of the work may only be published or exploited with the consent of the author of the edited or redesigned work ( Section 23 sentence 1 UrhG). The affixing of a forged signature to a painting also violates the special copyright law of § 107 Paragraph 1 Var. 2 UrhG.
  15. ↑ Cf. Gantz, Das droit de non-paternité, 2011, op.cit., P. 50 f.
  16. ↑ Cf. Gantz, Das droit de non-paternité, 2011, op. Cit., Pp. 157–159.
  17. ↑ Cf. Gantz, Das droit de non-paternité, 2011, op. Cit., Pp. 159–177.
  18. ↑ See Wilhelm Nordemann, Proposal for a Copyright Contract Act , in: Commercial Legal Protection and Copyright , 93, 1991, No. 1, pp. 1–10, here p. 4.
  19. ↑ See Wilhelm Nordemann, Proposal for a Copyright Contract Act , in: Commercial legal protection and copyright , 93, 1991, No. 1, pp. 1–10, here p. 6.
  20. ↑ See Walter, Austrian Copyright, 1st edition 2008, Rn. 895; Christian Handig, You have to have fun too. Parody versus copyright: A discussion of the favorite main woman's decision , in: Austrian papers for industrial property rights and copyright , 60, No. 2, 2011, pp. 58–64, here p. 63; Lothar A. Müller, The moral right of architects in German and Austrian law , Beck, Munich 2004, ISBN 3-406-52290-4 , p. 20; Walter, Copyright and Personal Law Aspects of Counterfeiting of Art , 2007, op. Cit., Here p. 108 f.
  21. ↑ See Walter, Austrian Copyright, 1st edition 2008, Rn. 895; ders., Aspects of copyright and personal rights aspects of counterfeiting of art , 2007, op. cit., p. 110 f.
  22. ↑ See Walter, Austrian Copyright, 1st edition 2008, Rn. 895; Lothar A. Müller, The moral right of architects in German and Austrian law , Beck, Munich 2004, ISBN 3-406-52290-4 , p. 20; Walter, Copyright and Personal Rights Aspects of Counterfeiting of Art , 2007, op.cit., P. 111.
  23. ↑ See Walter, Copyright and Personal Law Aspects of Counterfeiting of Art , 2007, op.cit., Here p. 113.
  24. ↑ See the references in Lucas / Lucas / Lucas-Schloetter, Traité de la propriété littéraire et artistique, 4th ed. 2012, marginal no. 540. Gautier points to an increasing tendency in case law to resolve these constellations via moral law, cf. Gautier, Propriété littéraire et artistique, 9th edition 2015, marginal no. 214.
  25. ↑ In this sense, for example Lucas / Lucas / Lucas-Schloetter, Traité de la propriété littéraire et artistique, 4th edition 2012, marginal no. 540; Pollaud-Dulian, Le droit d'auteur , 2nd ed. 2014, marginal no. 821; each with additional evidence. Mediating Vivant / Bruguière, Droit d'auteur et droits voisins, 3rd ed. 2016, Rn. 497.
  26. ↑ Cf. Pollaud-Dulian, Le droit d'auteur , 2nd ed. 2014, marginal no. 823
  27. ↑ See Cass. Com., Decision of January 11, 2017, 15-15750 .
  28. ↑ Never / Never, Never on Copyright , Status: 102. EL 2017, § 8D.03 [B] [1].
  29. ↑ To all of this: Never / Never, Never on Copyright , status: 102. EL 2017, § 8D.03 [B] [1].
  30. ↑ For example in Granz v. Harris , 198 F.2d 585 (1952) (Frank, J., concurring).
  31. ↑ In this sense, for example, Follett v. Arbor House Publishing Co. , 208 USPQ 597 (SDNY 1980).
  32. ↑ See Makeen in Davies / Gernett, Moral Rights , 2nd ed. 2016, Rn. 27-010, 27-019.
  33. ↑ Cf. Adeney in Davies / Gernett, Moral Rights , 2nd ed. 2016, Rn. 24-012.
  34. ↑ See Torremans / Deene in Davies / Gernett, Moral Rights , 2nd ed. 2016, Rn. 11-003.
  35. ↑ See Raghavender in Davies / Gernett, Moral Rights , 2nd ed. 2016, Rn. 28-029.
  36. ↑ See Oron in Davies / Gernett, Moral Rights , 2nd ed. 2016, Rn. 29-026.
  37. ↑ See Frabboni in Davies / Gernett, Moral Rights , 2nd ed. 2016, Rn. 17-013.
  38. ↑ See Lingren in Davies / Gernett, Moral Rights , 2nd ed. 2016, Rn. 25-016.
  39. ↑ 682330 Ontario Inc. v. Cineplex Odeon Corp. , 24 ACWS (3d) 26 = 33 CPR (3d) 413 = 1990 CarswellNat 1121 (via Westlaw)
  40. ↑ Cf. Grosheide in Davies / Gernett, Moral Rights , 2nd ed. 2016, Rn. 18-010.
  41. ↑ See Axhamn in Davies / Gernett, Moral Rights , 2nd ed. 2016, Rn. 19-016.
  42. ↑ See Akester in Davies / Gernett, Moral Rights , 2nd ed. 2016, Rn. 20-009.
  43. ↑ See de Werra in Davies / Gernett, Moral Rights , 2nd ed. 2016, Rn. 22-027.
  44. ↑ See Leška / Štechová in Davies / Gernett, Moral Rights , 2nd ed. 2016, Rn. 12-037.