Coditel SA, Compagnie générale pour la diffusion de la télévision, and others v Ciné-Vog Films SA and others (262/81)

D —Written observations of the French Government

The French Government also takes the view that the right of performance is inherent in copyright and does not constitute an element severed from it. Indeed it is clear from the Berne Convention that the copyright in the work in question comprises both a non-pecuniary right, perpetual and unalienable, relating to the authorship and preservation of the work and an economic right which may be the subject of transactions between authors and assignees and relates to the publishing or reproduction and performance of the work. Thus, the rights of reproduction and performance are elements inherent in copyright.In the film industry the producer is the exclusive assignee of the copyright and that exclusive right of exploitation may be transferred by him to the distributor, who in turn grants performing rights to the cinema operator. At the same time the producer gives a guarantee to the distributor, who in turn gives a guarantee to the cinema operators that, in particular, the work will not be broadcast on television. The French Government emphasizes in that regard that the widening of the areas of reception of television broadcasts due to cable distribution increases the necessity for “an unequivocal statement of the exclusive nature of copyright in the hands both of the authors themselves and of their assignees”.Turning to a discussion of the relevant law, the French Government considers that it follows from paragraph 12 of the judgment given in Case 62/79 Coditel cited above that the Court agreed to grant special treatment to copyright in cinematographic films on the ground that “there are two aspects to the financial right attaching to the films, namely the right of reproduction and the right of performance”. It follows, moreover, from paragraph 14 of that judgment that the Court recognized “the supremacy by virtue of Article 36 of the Treaty of the copyright in a cinematographic film over the Community rules on free movement”.However, in the view of the French Government, it is still necessary to determine whether a contract assigning the financial right attaching to copyright is not contrary to the rules governing competition. It takes the view that it is clear from the case-law of the Court (judgment of 29 February 1968 in Case 24/67 Park Davis v Centra/arm [1968] ECR 55 and judgment of 20 January 1981 in Joined Cases 55 and 57/80 Musik-Vertrieb membran v Gema [1981] ECR 147) that “in itself copyright (and the exclusive performing right which it comprises) cannot be regarded as an agreement, decision or concerted practice prohibited by Article 85 (1)”. Thus, it is accepted that the sale of copyright and the nonexclusive licence granted in respect of that right is compatible with the rules on competition. Nor, however, is the intermediate solution, which an exclusive licence represents, prohibited by Article 85 (1), since such an agreement embodies the exercise of a right by its owner, in so far as the grant of that right represents a transfer of the exclusive performing right for a specified period and not a relinquishment of that right. Consequently, an exclusive-rights contract of this kind does not interfere with free movement, whereas if exclusivity were not granted the effect would be to disrupt distribution and to distort competition by forcing distributors to engage in commercial warfare “whose only effect would be a lowering of the quality of distribution”.Finally, the French Government considers that if, contrary to all expectations, it were decided that the contract in question restricts competition, the contract not only should gain exemption under Article 85 (3) but also would be covered by the derogation provided for by Article 36, since the specific subject-matter of the copyright derives from a legal status and consists of the exclusive right to show the film.Consequently, the French Government takes the view “that Article 85 (1) of the EEC Treaty does not apply to an exclusive licence to show a film, in so far as the right attaching to that licence constitutes the specific subject-matter of a copyright which derives from a legal status”.