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Decision no. 2014-430 QPC of 21 November 2014

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Ms Barbara D. and others [Sales of works and transfer of the right of reproduction]

On 17 September 2014 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received from the Cour de Cassation (first civil chamber, judgment no. 1180 of 17 September 2014) an application for a priority preliminary ruling on the issue of constitutionality raised by Ms Barbara D., Ms Evelyne C., Ms Anne-Maxence M., Mr Jean-Matthieu M., Ms Jacqueline M., Mr Paul M., Ms Jacquelyn M. wife of M. and Ms Alexina M., regarding the conformity of "Article 1 of the Decree of 19 July 1793 as interpreted by the judgment of the joint chambers of the Cour de Cassation of 27 May 1842" with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the basic law on the Constitutional Council;

Having regard to the Law proclaimed on 19 July 1793 on the proprietary rights of authors of writings of all kinds, composers of music, painters and graphic artists;

Having regard to the Law of 11 March 1902 extending to sculptures the scope of the Law of 19-24 July 1793 on artistic and literary property;

Having regard to the Law of 11 April 1910 on the protection of copyright in relation to the reproduction of works of art;

Having regard to Law no. 57-298 of 11 March 1957 on literary and artistic ownership;

Having regard to the judgments of the Court of Cassation of 27 May 1842 (joint chambers), of 19 March 1926 (criminal chamber no. 81-10805), of 16 June 1982 (first civil chamber, no. 81-10805) and of 25 May 2005 (first civil chamber, no. 02-17305);

Having regard to the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;

Having regard to the observations on behalf of the M. Pierre K., the defendant, by SCP Piwnica et Molinié, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 9 and 24 October 2014;

Having regard to the observations made on behalf of the applicants by SCP Roger, Sevaux et Mathonnet, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 10 October 2014;

Having regard to the observations in intervention filed on behalf of Mr Claude R. in his own right, Ms Paloma R., the EURL [single member limited liability undertaking] Picasso Administration, and Mr Claude R. in his capacity as the administrator of the PICASSO estate by Didier Le Prado Esq., Attorney at the Conseil d'État and the Cour de Cassation, registered on 10 and 27 October 2014;

Having regard to the observations intervention on behalf of Mr Bernard R by SCP Bernard Hemery et Carole Thomas-Raquin, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 10 and 27 October 2014;

Having regard to the observations of the Prime Minister, registered on 10 October 2014;

Having regard to the documents produced and appended to the case file;

Having heard Anne Sevaux Esq., Attorney at the Conseil d'État and the Cour de Cassation, for the applicant, Emmanuel Piwnica Esq., Attorney at the Conseil d'État and the Cour de Cassation, for the defendant, Carole Thomas-Raquin Esq. and Le Prado Esq. on behalf of the intervener parties and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing of 12 November 2014;

Having heard the Rapporteur;

1. Considering that pursuant to Article 1 of the Law proclaimed on 19 July 1793 on the proprietary rights of authors of writings of all kinds, composers of music, painters and graphic artists, as in force following the enactment of the aforementioned Law of 11 March 1902: "The authors of writings of all kinds, the composers of music, architects, sculptors, painters and graphic artists who engrave pictures or drawings shall enjoy for the duration of their lifetime the exclusive right to sell, instruct the sale and distribute their works throughout the territory of the Republic and to transfer ownership in full or in part.

"The same right shall be vested in sculptors and ornamental graphic artists, irrespective of the merit and intended purpose of the work";

2. Considering that according to the settled case law of the Cour de Cassation, if a work was sold prior to the entry into force of the aforementioned law of 11 April 1910 without reservation, the right of reproduction was also transferred to the buyer;

3. Considering that, according to the applicants, these provisions interpreted in this manner have the effect of depriving the author of a work who has sold the tangible support of his or her intellectual property right without his or her consent; that in rendering intangible property a mere ancillary element of ownership of the work, they violate the constitutional protection granted to the right of ownership; that they likewise violate the right to maintain the effect of contracts lawfully concluded and the objective of constitutional standing that the law should be accessible and intelligible; that the intervener parties further object that the contested provisions violate freedom of contract;

– THE CHALLENGES ALLEGING A VIOLATION OF THE RIGHT OF OWNERSHIP AND FREEDOM OF CONTRACT:

4. Considering that property is included under the human rights established by Articles 2 and 17 of the 1789 Declaration of the Rights of Man and the Citizen; that pursuant to Article 17: "Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified"; that even if there is no violation of the right to property pursuant to that Article, it nonetheless follows from Article 2 of the 1789 Declaration that the limits placed on this right must be justified by a reason of general interest and be proportionate with the objective pursued;

5. Considering that the goals and conditions governing the exercise of the right of ownership have evolved since 1789 by extending their scope to new domains including in particular to intellectual property; that as such this includes the right of the holders of copyright and related rights to exercise their intellectual property rights and to protect those rights within the framework specified by law and the international law commitments entered into by France;

6. Considering that the legislator is free to subject the freedom of contract, as resulting from Article 4 of the 1789 Declaration, to limitations associated with constitutional requirements or which are justified by the general interest, provided that this does not result in harm that is disproportionate to the objective pursued;

7. Considering that the contested provisions, as interpreted according to the settled case law of the Cour de Cassation, are applicable to sales concluded prior to the entry into force of the Law of 11 April 1910; that they determine the extent of a sale concluded voluntarily by the author of the work; that the contested provisions establish a presumption that respects the right of the parties to the sale to reserve the right of reproduction; that neither the constitutional protection granted to intellectual property rights nor freedom of contract preclude a rule according to which the sale of the tangible support of a work entails the transfer of the right of reproduction unless the parties decide to set this rule aside by an agreement to the contrary; that accordingly, the challenges alleging a violation of the right of ownership and freedom of contract must be rejected;

– THE OTHER CHALLENGES:

8. Considering that Parliament is at any time at liberty, when ruling on the matters within its competence, to amend earlier legislation or to repeal it and replace it with new legislation as the case may be; that when doing so, it cannot however deprive constitutional requirements of legal guarantees; that in particular, it would violate the guarantee of rights proclaimed by Article 16 of the 1789 Declaration of the Rights of Man and the Citizen if it were to impinge upon acquired rights in a manner not justified by a sufficient reason of general interest; that similarly, it would not comply with the requirements resulting from Articles 4 and 16 of the 1789 Declaration if it were to impinge upon contracts lawfully concluded in a manner not justified by such a reason;

9. Considering that the law proclaimed on 19 July 1793 as interpreted by the Cour de Cassation does not violate any lawfully concluded agreements or any lawfully acquired rights; that accordingly the challenges must be rejected;

10. Considering that the contested provisions, which are not in any sense unintelligible, do not violate any other right or freedom guaranteed by the Constitution and must be upheld as constitutional,

HELD:

Article 1.– Article 1 of the Law proclaimed on 19 July 1793 on the proprietary rights of authors of writings of all kinds, composers of music, painters and graphic artists, as in force following the enactment of the Law of 11 March 1902 extending the scope of this law to sculptures, is constitutional.

Article 2.– This decision shall be published in the Journal Officiel of the French Republic and notified in the conditions provided for under Article 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session of 20 November 2014, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Ms Claire BAZY MALAURIE, Ms Nicole BELLOUBET, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC and Ms Nicole MAESTRACCI.

Announced on 21 November 2014.