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    Community Right To Access Unpublished Works Trumps Moral Rights Of Heir, Argentine Court Says

    Published on 11 April 2013 @ 3:32 pm

    By for Intellectual Property Watch

    In a recent decision, Ediciones de la Flor SA c. Fontanarrosa Franco s. Acción Mere Declarativa (File No. 1420/08), the Court of First Instance in Civil and Commercial Matters No. 12 of Rosario, the second largest city in Argentina, ruled that the rights of the community to access unpublished works of a deceased author are superior to the moral rights of one of his heirs to oppose such publication.

    Roberto Fontanarrosa, a famous cartoonist and writer whose characters are very popular in Argentina, died on 19 July 2007. After his death, his widow, Gabriela Mahy, and his son from a previous marriage, Franco Fontanarrosa, went to court to settle their rights. According to Argentine Civil Code, when a person dies and leaves assets behind, it is left to a judge to determine who the legal successors are and which assets belong to each of them. In the meantime, the widow was appointed interim manager by the court.

    But there is another trial between both heirs and an editor, on copyright matters. After the death of her husband, the widower signed a publishing contract with a local publishing house, Ediciones de la Flor SRL, to posthumously print a collection of unpublished short stories left by her husband (Negar todo y otros cuentos).

    The son of the artist did not take part in the agreement and later opposed the publication arguing the moral rights of the author (his father). Therefore, the publishing house went to court to request a declaration by the judge whether the agreement was valid or not (a declarative action in legal jargon). The wife of the author, even if technically not a party to the case, was summoned and given legal standing.

    Before the judge the thema decidendum was the validity of the agreement signed between the widower and the publishing house, to which the son of the author opposed claiming his father’s moral rights. He argued he was not sure his father was actually the author of the work subject to the publishing agreement and his motivation was to avoid damaging his father’s reputation by allowing the print of a work of an unknown author under his name.

    The moral rights of an author are those of non-economic nature; its definition, limits and interpretation tend to vary from country to country. Unlike the economic rights, moral rights are unalienable and usually perpetual. The judge in the case only recognised two: the right of integrity (forbidding any modification of the work without consent of the author) and the right of paternity (to acknowledge the author in every publication). It is unclear if the author (or his heirs) has also a moral right to decide whether to publish or not his works (right of disclosure).

    In the end, the judge in charge of the Court of First Instance, Fabián Bellizia, decided the contract signed between the publisher and the widower was valid, thus authorising the publication of the work. Moreover, he deemed the moral rights argued by the son of the author were abusive. The judge stated that the tension between author’s copyright and community interest and explicitly favoured the latter over the former.

    He grounded his ruling not in the Argentine Copyright Act No. 11.723, but in international treaties that have constitutional hierarchy (Art. 75 subsection 22 of the Argentine Constitution). This includes in particular: the American Convention on Human Rights, also known as the Pact of San José de Costa Rica, Art. 21, subsection 1 (the law can subordinate individual rights to social interests, i.e., the so-called doctrine of the social function of property), and the International Covenant on Economic, Social and Cultural Rights (adopted by the United Nations General Assembly on 16 December 1966), Art. 15, subsection 1 (right of every person to take part in the cultural life).

    This is perhaps the first time ever that an Argentine court curtailed the exercise of moral (and economic) rights of authors by taking into account the interest of the community. The case is not yet definitive, as in Argentina double instance is mandatory. It remains to be seen what the Appellate Court will decide. In any case, it sets a controversial new judicial doctrine. This decision may be celebrated by many (the publisher, Fontanarrosa’s readers) and abjured by some (the author’s son and other author’s heirs).

    The preponderance of the community’s right to access and enjoy unpublished works over the moral and economic rights of an heir is not a trouble-free interpretation. The community, a diffuse category, had no legal standing in the case. Moreover, the decision clearly benefitted, economically, Ediciones de la Flor SRL

    It seems this decision is a reaction against the perceived misbalance between incentive and access trade-off in contemporary copyright law. In any case, the ruling opens the door to many challenging interpretations. If the rights of the heir, as successor of the author, can be deemed abusive in a court of law, could the moral rights of a living author be considered abusive as well? May a judge someday force an author to publish works he does not want to publish? Is there a moral right to disclose (or not) an unpublished work in Argentine law? If so, is it passed to the heirs?

    Furthermore, the case raises the question of how far the doctrine of social function of (intellectual) property can be stretched? And with the resort to international human rights treaties to (supposedly) benefit the community over the heirs’ moral rights, how seriously might it undermine the goals of copyright law? Could this decision have any effect on authors’ incentives to create new works? Last but not least, will these concerns add more uncertainty to an already nervous market?

    A copy of the ruling, in Spanish, may be accessed here.

    The author would like to thank Dr. Lisandro Rienzi who sent me a copy of the ruling.

     

    Maximiliano Marzetti may be reached at info@ip-watch.ch.

     

    Comments

    1. El caso Fontanarrosa | Entremedios says:

      [...] agregado del juez es problemático. Como señala el sitio Ip-Watch,  el concepto de “interes social” es bastante impreciso, la sociedad no es parte de [...]


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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