Provisional text

delivered on 10 April 2025 (1)

Case C‑182/24

RB, as successor in title to Claude Chabrol,

AD, represented by his guardian, NM, as successor in title to Claude Chabrol,

DR, as successor in title to Claude Chabrol,

ZB, as successor in title to Claude Chabrol,

VQ, as successor in title to Claude Chabrol,

RZ, as successor in title to Paul Gégauff,

DQ, as successor in title to Paul Gégauff,

FI, as successor in title to Paul Gégauff,

LF, as successor in title to Paul Gégauff

Société des Auteurs et Compositeurs Dramatiques (SACD),

Radio Days SARL,

Brinter Company Ltd,

BS,

MW,

Artedis SA,

Panoceanic Films SA,

intervening parties:

Société des auteurs, compositeurs et éditeurs de musique (SACEM),

HU, as successor in title to Pierre Jansen,

YG, as successor in title to Ellery Queen,

VH, as successor in title to Ellery Queen,

IA,

ID, as successor in title to Jean Patrick Manchette,

Daniel Boulanger estate, as successor in title to Daniel Boulanger,

HK, as successor in title to Claude Brulé,

QY, as successor in title to Claude Brulé,

WY, as successor in title to Claude Brulé,

KE, as successor in title to Claude Brulé,

NA, as successor in title to Claude Brulé,

IY, as successor in title to Claude Brulé,

Nicholas Blake estate, as successor in title to Nicholas Blake,

Edward Atiyah estate, as successor in title to Edward Atiyah,

Ellery Queen estate, as successor in title to Ellery Queen,

Richard Neely estate, as successor in title to Richard Neely,

Patricia Highsmith estate,

Charlotte Armstrong estate, as successor in title to Charlotte Armstrong,

WI, as successor in title to Claude Rank,

QT, as successor in title to Hubert Monteilhet

(Request for a preliminary ruling from the tribunal judiciaire de Paris (Court of Paris, France))

( Reference for a preliminary ruling – Copyright and related rights – Enforcement of intellectual property rights – Appropriate remedies – Directive 2001/29/EC – Article 8 – Directive 2004/48/EC – Article 3 – Directive 2006/116/EC – Articles 1 and 2 – Article 47 of the Charter of Fundamental Rights of the European Union – National legislation making the admissibility of a claim for the protection of intellectual property rights brought by a co-author conditional on the other co-authors being called on to participate in the proceedings – Procedural autonomy – Principle of effectiveness )

In 1990, the film director Claude Chabrol and the screenwriter Paul Gégauff assigned the exploitation rights for some of their films to a distributor, for a period of 30 years.

In 2019, after the deaths of Claude Chabrol and Paul Gégauff, their respective heirs brought a claim against the distributor and other companies connected with it, seeking, inter alia, an award of damages for breach of contract and copyright infringement.

The defendants objected that the claim was inadmissible on the basis that not all of the co-authors who had taken part in making the films, or their successors in title, had been called on to participate in the proceedings. They argued that, according to French law, an action seeking to enforce the rights of the authors of a collective work (a ‘work of collaboration’) requires all of the co-authors to be called on to participate in the proceedings.

The court tasked with resolving that dispute has referred two questions to the Court of Justice for a preliminary ruling, asking, in short, whether the obligation to call on all of the co-authors to participate in the proceedings, as a condition for the admissibility of the claim, is compatible with EU law, in particular, with Directive 2001/29/EC, (2) Directive 2004/48/EC, (3) Directive 2006/115/EC (4) and Directive 2006/116/EC, (5) read together with Articles 17 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

I.Legal context

A.European Union law

1.Directive 2001/29

In accordance with Article 8 (‘Sanctions and remedies’):

‘1. Member States shall provide appropriate sanctions and remedies in respect of infringements of the rights and obligations set out in this Directive and shall take all the measures necessary to ensure that those sanctions and remedies are applied. The sanctions thus provided for shall be effective, proportionate and dissuasive.

…’

2.Directive 2004/48

Article 3 (‘General obligation’) states:

‘1. Member States shall provide for the measures, procedures and remedies necessary to ensure the enforcement of the intellectual property rights covered by this Directive. Those measures, procedures and remedies shall be fair and equitable and shall not be unnecessarily complicated or costly, or entail unreasonable time limits or unwarranted delays.

3.Directive 2006/116

Article 1 (‘Duration of authors’ rights’) reads:

‘1. The rights of an author of a literary or artistic work within the meaning of Article 2 of the Berne Convention shall run for the life of the author and for 70 years after his death, irrespective of the date when the work is lawfully made available to the public.

…’

Article 2 (‘Cinematographic or audiovisual works’) states:

‘1. The principal director of a cinematographic or audiovisual work shall be considered as its author or one of its authors. Member States shall be free to designate other co-authors.

Article 9 (‘Moral rights’) reads:

‘This Directive shall be without prejudice to the provisions of the Member States regulating moral rights.’

B.French law

1.Code de la propriété intellectuelle (Intellectual Property Code) (6)

Article L. 113-2 reads:

‘Work of collaboration shall mean a work in the creation of which more than one natural person has participated. ….’

Article L. 113-3 provides:

‘A work of collaboration shall be the joint property of its authors.

The joint authors shall exercise their rights by common accord.

In the event of failure to agree, the civil courts shall decide.

Where the contribution of each of the joint authors is of a different kind, each may, unless otherwise agreed, separately exploit his or her own personal contribution without, however, prejudicing the exploitation of the common work.’

Article L. 113-7 states:

‘Authorship of an audiovisual work shall belong to the natural person or persons who have carried out the intellectual creation of the work. Unless proved otherwise, the following are presumed to be the joint authors of an audiovisual work made in collaboration: 1. the author of the script; 2. the author of the adaptation; 3. the author of the dialogue; 4. the author of the musical compositions, with or without words, specially composed for the work; 5. the director. […].’

2.Code de procedure civil (Code of Civil Procedure) (7)

Article 126 provides that, where the situation giving rise to grounds of inadmissibility may be rectified, the inadmissibility is to be rejected if the reason for it has disappeared at the time when the court has to give its decision.

For the purposes of Article 659, where the person on whom the document has to be served does not have a known address, residence or place of business, the huissier de justice is to draw up a report stating exactly what steps have been taken to find the addressee of the document. That same day or, at the latest, on the next working day, the huissier de justice is to send a copy of the report, with a copy of the document to be served attached, to the addressee, by registered letter with acknowledgement of receipt, to the last known address, with failure to do so rendering the service invalid.

According to Article 780, which concerns the written procedure before courts of first instance, supervision of the proceedings falls to a judge of the chamber hearing the case, who will ensure that the proceedings are conducted in a proper manner, especially with regard to punctuality in the exchange and disclosure of documents.

In accordance with Article 788, the judge trying a civil case has all of the powers necessary for the disclosure, obtaining and filing of documents.

II.Facts, dispute and questions referred for a preliminary ruling

The relevant facts, as set out in the order for reference, (8) are as follows:

–Between 1967 and 1974, Claude Chabrol directed 14 films. On 5 of them, he collaborated with Paul Gégauff, as the author of the dialogue, the script or the adaptation.

–The material relating to the films belonged to their producer, SA Les Films La Boétie, which, when it was being wound up, transferred that material, by an agreement of 25 March 1982, to the company incorporated under English law then known as Brinter Co.

–By agreements of 8 June 1990, Claude Chabrol assigned the right to ‘continue to exploit’ (9) various films, for a period of 30 years, to the company Brinter Company Ltd (‘Brinter’). Mr BS presented himself as the director of Brinter.

–The exploitation rights of Paul Gégauff in respect of the 5 films on which he had collaborated were the subject matter of agreements of 8 June 1990, signed by 4 of his heirs with Brinter, to whom they assigned the right to ‘continue to exploit’ the films, for a period of 30 years. (10)

–By means of a sales mandate dated 1 January 1990, Brinter authorised the company Artedis SA, for a period of 12 months, extendible by tacit renewal, to sign contracts of sale with buyers directly and to receive the price. That agreement affected the 14 films at issue, with the exception of 1. Ms MW presented herself as the director of Artedis.

–Under an agreement of 18 February 2012, Brinter assigned the exploitation rights for five of the films at issue to the company Panoceanic Films SA.

On 11 July 2019, the heirs of Claude Chabrol and Paul Gégauff sued Brinter, Artedis, Panoceanic Films, Radio Days SARL, Ms MW and Mr BS (11) for breach of contract and copyright infringement (12) in relation to the 14 films, 5 of which were co-authored by Paul Gégauff.

On 27 January 2020, the defendants filed a defence of inadmissibility, on the basis that 19 co-authors of the films at issue had not been called on to participate in the proceedings.

In order to put their claims in order, by means of documents of 5 May and 12 June 2020, the claimants (now the applicants) called on the following to participate in the proceedings:

–Seven natural persons whom they considered to be co-authors or successors in title of co-authors who had died previously. (13)

–Eight ‘estates’ of co-authors, in respect of which they had not been able to identify the natural persons who qualified as heirs. (14)

–Two collecting societies, one of which represents dramatic authors and composers (15) and the other authors, composers and music publishers. (16)

By an order of 9 February 2023, (17) the judge trying the civil case ordered the defendants to provide details of the identities of the co-authors and rightholders of the films.

Even with those details at their disposal, the applicants were not able to locate all of the co-authors and rightholders of the films, or call on them to participate, because of the number of films (14), their age (made between 1967 and 1974), the wide range of individuals involved (director, screenwriter, score composer, author of the pre-existing literary work) and the death of some of the co-authors, whose heirs are unknown or do not reside in France.

The tribunal judiciaire de Paris (Court of Paris, France), which has to resolve the dispute, states that ‘since 27 January 2020 […] the proceedings have been paralysed by the impossibility of identifying [the] numerous successive heirs [of the co-authors of the films]’. (18)

It also underlines that ‘[…] the parties have taken great pains to identify the co-authors or their successors in title, but it has not been possible to call on them to participate in the proper manner, as required by the national case-law based on Article L. 113-3 of the [CPI]’. (19)

For the court a quo, as far as the right to an effective remedy guaranteed by the Charter is concerned, the applicants in this dispute are, de facto, denied access to the civil court that has to decide on the substance of their claims if they cannot bring their action against all of the successors in title of the co-authors of the works at issue. (20) The benefit of the applicants’ copyright will, then, depend on their ability to identify the other joint owners of that copyright. (21)

In that context, the referring court refers two questions to the Court of Justice for a preliminary ruling:

‘(1) Can Articles 2, 3, 4 and 8 of [Directive 2001/29], Articles 1 to 3 of [Directive 2004/48] and Articles 1, 2 and 9 of [Directive 2006/116], in so far as they guarantee to the author and co-author of a cinematographic or audiovisual work both the exclusive right to authorise or prohibit the reproduction of their works and the right of their communication to the public and a term of protection ending 70 years after the death of the last survivor amongst the collaborators on the work, at the same time as they require the Member States to provide for effective, proportionate and dissuasive sanctions and remedies which are appropriate in respect of copyright infringements, as well as for measures, procedures and remedies which are not unnecessarily complicated or costly, or which do not entail unreasonable time limits or give rise to unwarranted delays, be interpreted as meaning that an action for infringement of the copyright of a work of joint authorship, [brought] by its holder, requires, in order for it to be admissible, that all of the co-authors be [called on to participate in] the proceedings?

(2) Must the copyright holder’s right to an effective judicial remedy and access to a court, which is a component of the right to a fair trial, as guaranteed, together, by Articles 2, 3, 4 and 8 of [Directive 2001/29], Articles 1 to 3 of [Directive 2004/48], Articles 1, 2 and 9 of [Directive 2006/116], [Directive 2006/115] and Articles 17 and 47 of [the Charter], be interpreted as meaning that the admissibility of an action for infringement of copyright is, or is not, conditional on all of the co-authors of the work being [called on to participate in] the proceedings?’

III.Legal context

The request for a preliminary ruling was received at the Court on 5 March 2024.

The following have submitted written observations:

–Jointly, the heirs of Claude Chabrol (Ms DR, Ms VQ, Mr ZB and Mr AD, the last represented by his guardian) and the heirs of Paul Gégauff (Mr RZ, Mr DQ, Ms FI and Ms LF).

–Independently, the heir of Claude Chabrol, Mr RB.

–Jointly, Mr BS, Ms MW and the companies Artedis, Brinter, Panoceanic Films and Radio Days (defendants in the original proceedings).

–The Austrian and French Governments and also the European Commission.

The Court did not consider it necessary to hold a hearing.

IV.Assessment

A.Preliminary observations

1.Applicable provisions

The request for a preliminary ruling deals, exclusively, with a procedural problem arising from the interpretation of Article L. 113-3 of the CPI. The substantive scope of the copyright which, once the procedural objection has been cleared, could come into play is not discussed.

Article L. 113-3 of the CPI provides that the co-authors of a work of collaboration are to exercise their rights by common accord. The national case-law has interpreted that provision to mean that ‘when taking legal action to defend his or her economic rights, the co-author of a work of collaboration, in so far as his contribution cannot be separated from that of the co-authors, must call on the other authors of the work to participate in the proceedings, with failure to do so rendering the claim inadmissible’. (22)

The referring court wishes to know, in short, whether the national rule interpreted in that manner is consistent with EU law, in particular with reference to the provisions it mentions in its two questions.

Those provisions include Directive 2006/115, however, the referring court says nothing regarding the potential influence of the content of that directive on the dispute, nor does it state specifically the articles about which it has doubts. Therefore, in my opinion, the response of the Court can dispense with an analysis of that legislation.

The same is not the case with Directive 2001/29, Directive 2004/48 and Directive 2006/116. All three contain provisions which, in themselves, are capable of influencing the response to the request for a preliminary ruling:

–Article 8(1) and (2) of Directive 2001/29 requires the Member States to provide appropriate remedies in respect of infringements of copyright and related rights, and to ensure that the holders of those rights are able to bring an action for damages.

–Article 3(1) and (2) of Directive 2004/48 requires the Member States to provide for the procedures and remedies necessary to ensure the enforcement of intellectual property rights. Those procedures and remedies must not be unnecessarily complicated or costly, but must be effective, proportionate and dissuasive.

–Article 1(2) of Directive 2006/116, in regulating the duration of authors’ rights, states that, in the case of a work of joint authorship, the term of protection is to be calculated from the death of the last surviving author.

As far as Articles 17 and 47 of the Charter are concerned, it is the latter that has the greater impact on the dispute, since copyright enjoys the recognition of EU legislation from the point of view of effective remedies, thereby opening the door to the application of the Charter itself (Article 51(1)). The interpretation of Article 17(2) of the Charter (‘intellectual property shall be protected’) must be done when applying the provisions of derived law in which that protection is expressed.

2.Copyright at issue in the dispute

The order for reference states, in various paragraphs, that the claims of the Chabrol and Gégauff ‘consorts’ (23) include both economic and moral rights. (24)

As there is no doubt regarding the ownership of the copyright allegedly infringed in this case, it is debatable whether moral rights are really also at issue. If it is confirmed that they are, it would be necessary to take account of the fact that Article 9 of Directive 2006/116 excludes the provisions of that directive affecting the provisions of the Member States regulating moral rights.

It will be for the referring court to clarify what aspect of copyright (economic or moral rights) may have been infringed. In order to respond to the questions referred, in so far as they are limited to the objection of inadmissibility raised by the defendants, it makes no difference whether moral rights are included or excluded.

B.Answers to the questions referred

In my opinion, the two questions can be dealt with together. My analysis will address both the problems raised by the co-ownership of the copyright and the conditions and limits imposed on the defence of that right by means of litigation.

1.Co-ownership of the copyright

The EU legislation either assumes the possibility of joint holders (co-ownership) of copyright or it refers to it expressly.

Directive 2001/29 (25) and Directive 2004/48 (26) refer to the ‘author’ or to the ‘holder of an intellectual property right’, using those terms, without distinction, in the singular or the plural.

Directive 2006/116 recognises the co-ownership of copyright: recital 14 of that directive refers to ‘cases where one or more physical persons are identified as authors’. Article 1(2) provides, specifically, for the case of ‘a work of joint authorship’.

With regard to cinematographic or audiovisual works in particular, Article 2 of Directive 2006/116 allows the Member States to designate ‘other co-authors’ together with the principal director. That is the case here.

It may then be said that, where various individuals are authors of, or holders of intellectual property rights in a cinematographic work, they are all protected. Both those individuals and, once they are deceased, their heirs are beneficiaries of the copyright in the cinematographic work made in collaboration.

Just as occurs in the parallel field of industrial property, (27) the problem in relation to copyright is how the co-owners are able to defend their claims, given the silence of EU legislation on the appropriate procedural means for ensuring the protection of such rights.

Article 4(a) of Directive 2004/48 recognises ‘the holders of intellectual property rights, in accordance with the provisions of the applicable law’ as persons entitled ‘to seek application of the measures, procedures and remedies’. (28)

The Court regards applicable law ‘as referring to both national and EU legislation, as appropriate’. (29)

However, EU legislation does not contain specific provisions relating to legal action brought by co-owners of copyright. There is no harmonisation in that regard and it is the responsibility of the Member States to adopt suitable rules to regulate the bringing of such action before their courts. EU law does not set the conditions applicable to the exercise, by the co-owners, of their rights as such.(30)

Consequently, the ‘applicable law’ in relation to the judicial protection of the copyright in a work of joint authorship is, in principle, that emanating from the Member States.

2.National rule, limits to procedural autonomy and Article 47 of the Charter

The rule contained in Article L. 113-3 of the CPI, in its literal sense, seems unobjectionable to me. I cannot see what grounds there would be to reject a rule that is confined to declaring that the co-authors of a work of collaboration must exercise their rights by common accord and that, where such agreement is not reached, a court should decide on the matter.

That rule is consistent with the customary understanding, in the different legal orders, of the co-ownership of property and rights. (31) Even more so given that, in accordance with the national case-law, the joint exercise of their rights by the co-authors is only required in so far as the contribution of one of them cannot be separated from that of the rest. (32)

The translation of that rule in terms of procedure, by French case-law, has led to grounds for the inadmissibility of the claims being deduced from it: those claims will be rejected a limine when the co-author of a work who is taking legal action to defend his or her rights has not called on the other joint rightholders to participate in the proceedings.

The combination of the CPI rule and its interpretation in the case-law, as the French Government itself recognises, (33) implies a restriction on access to the court. Even so, it does not seem to me to be unacceptable in itself, with the proviso of what I shall presently say regarding its limits.

The legal orders of each Member State may make the admissibility of a claim brought by a co-author of a work of joint authorship conditional on the rest of the co-authors being called on to participate in the proceedings. Such a procedural requirement is logical in cases where the law establishes ‘mandatory joinder of claimants’. (34) And there is nothing to prevent the law, as occurs here, requiring other claimants at least to receive a notification of the proceedings, even if their presence is not mandatory. (35)

A rule with those characteristics, whether or not it has its origin in case-law, falls within the procedural autonomy of the Member States and may, consequently, be permitted, if it reflects legitimate objectives and does not exceed the limits that I shall set out below.

That rule is inspired by the legitimate objectives which the French Government and the Commission emphasise. It protects the rights of absent joint holders of those rights, on an equal basis, allowing them to have sufficient information to choose whether to participate in the proceedings or not. (36) To the same extent, it contributes to legal certainty and good administration of justice, anticipating problems that could arise in relation to the same case pending before another court, the subsequent joinder of actions, the possibility of contradictory decisions if each co-author acts independently or the desirability of avoiding subsequent claims by co-authors who had not been notified of the proceedings. (37)

However, the restriction which that rule imposes on a co-owner of copyright must be subjected to the double scrutiny of checking that it is consistent with the principles of equivalence and effectiveness, on the one hand, (38) and satisfies the requirements arising from Article 47 of the Charter, on the other. That article enshrines the principle of the right to an effective remedy in respect of rights conferred on individuals by the EU legal order.

That duality of approach will lead to the same outcome, if, ultimately, the referring court concludes that, in a case such as this, the exercise of the right to obtain judicial protection in order to defend copyright is subject to a procedural obligation that is excessively difficult or impossible to comply with.

As the application of the principle of equivalence is not disputed here, the entire debate revolves around the principle of effectiveness. In that regard, the French Government maintains that the obligation at issue is not excessively difficult to comply with, nor does it go beyond what is necessary in order to achieve the objectives pursued, (39) since:

–It is not mandatory to call on all of the joint rightholders to participate in the proceedings where the dispute concerns a part of the work that is capable of being separated out.

–The aim of notifying all of the joint rightholders is not that they should actually participate in the proceedings: it is sufficient for them to be called, in order to have the opportunity to appear.

–It is sufficient to provide the name and address of the person to be notified. If their details are not known, Article 659 of the Code of Civil Procedure allows them to be called at their last known address.

–Even where the name and address of the persons to be notified are not known, the reasons for the inadmissibility of the claim can be rectified and the judge has powers to require third parties to provide the details of the unknown joint rightholders.

Those qualifications in relation to the procedural obligation at issue certainly lessen its rigour, but they do not exclude the possibility that, in situations such as that in the present case, the application of the rule, even in a less rigorous manner, could lead to the paralysis of the proceedings, with the consequent failure to protect the rights of the claimants.

In fact, the French Government admits that having to call on all of the co-authors to participate in the proceedings may, in certain cases, constitute ‘… an unreasonable requirement, likely to make it impossible or excessively difficult for the claimant to exercise the rights conferred by EU law’. In that scenario, it adds, ‘the court may … apply a less rigorous interpretation of the criterion for admissibility’. (40)

Certainly, it will be up to the referring court to assess whether, in view of the particular circumstances of the dispute, the application of the procedural requirements imposed on the applicants does, or does not, breach the principle of effectiveness and Article 47 of the Charter.

63.Such an breach would occur if, in spite of their efforts and having exercised due diligence, the applicants were unable to notify all of the joint rightholders, for reasons beyond their control. In that situation, the insistence on all of the joint rightholders being called on to participate in the proceedings, with failure to do so rendering the claim inadmissible, could make it impossible or excessively difficult to exercise rights derived from EU law. (41)

64.There are, then, two options available to the referring court:

–It could, if it considers it appropriate, interpret the national rule in the less rigorous manner proposed by the French Government, in order to adjust it to the requirements of EU law. According to the French Government, the domestic legislation offers sufficient flexibility for that purpose, without requiring a contra legem interpretation of the relevant provisions. (42)

–If, in spite of everything, it considers that it is unable to interpret the procedural rule in a iuxta legem manner, consistent with EU law, because it is prevented from doing so by the case-law of the highest French court – the application of which, in this case, leads inevitably to the infringement of Article 47 of Charter – it must set it aside. (43)

65.Either of those options should lead to the same result: the right of the joint rightholders to defend their claims against those who have (allegedly) infringed their copyright must not be subject to procedural requirements that are impossible or very difficult to comply with, which would amount, in practice, to the neutralisation of that right.

66.Without wishing to substitute an opinion for that of the referring court in its judgment, perhaps it could be given some guidance to make it easier to adjust the procedural rule at issue so as to be consistent with EU law and, in turn, overcome the paralysis in the proceedings, thus avoiding further delays.

67.In any event, I emphasise that only the referring court (which, logically, has greater knowledge of national law) is in a position to provide the consistent interpretation that I have referred to above.

68.In this case, even though they are claiming for themselves the economic and moral consequences derived from their copyright, the applicants state that, with their claim, ‘they are acting in the common interest of the joint rightholders’ (44) and are attempting to ‘protect the rights of all of the co-authors of the films’. (45)

69.If the applicants, as they themselves acknowledge, are acting in defence of the jointly owned intellectual property, the success of their claim will benefit all of the joint rightholders of the films. A judgment that brings the dispute to an end by finding that there has been an infringement of copyright will favour (at least indirectly) the legal situation of all of the joint rightholders.

70.The applicants, then, do not seek to limit the copyright in the work of collaboration belonging to other joint rightholders. On the contrary, with their procedural reaction to the (alleged) infringement of that copyright, they are attempting to improve the legal situation of all of the co-authors. Strictly speaking, it is not a question of the interests of certain co-authors prevailing over those of others, in which case it would be necessary to find the appropriate balance.

71.In the context of the defence of a jointly held right, I wonder whether the provisions that govern shared property in French law could not, on an exceptional basis, justify one of the joint rightholders bringing actions to benefit from the jointly owned work, even without all of the rightholders being called on to participate in the proceedings and without the explicit consent of all of them.

72.The written observations of Mr RB point to that possibility. They recall the provisions of the French Civil Code regarding undivided ownership of property and how Article 815-2 of that code permits any owner of an undivided share in a property to take the measures necessary to maintain it, even if they are not urgent in nature. (46)

73.From another perspective, perhaps recourse could be had, by analogy, to the provisions applicable in the scenario in which it is impossible for one of the joint rightholders to express his or her wishes. In that scenario, another joint rightholder of the jointly owned work, with judicial authorisation, could make up for the lack of consent.

74.In fact, in accordance with Article L. 113-3, third paragraph, of the CPI, where the co-authors of a work of collaboration fail to agree, it falls to the civil courts to decide. The referring court is competent to decide whether the ‘failure to agree’ referred to in that provision includes a situation in which such agreement has not been reached because it is impossible to identify all of the co-authors of the work of collaboration.

75.Nor do I exclude the possibility of making use of one of the principles which, in the civil law of a good number of States, apply to the concept of agency of necessity. Under that concept, the acts carried out by the person who, not being obliged to do so, manages the affairs of another, for the benefit of the latter and without his or her opposition, may produce favourable effects for that other person, with the ‘unofficial manager’ assuming the obligations of an agent.

76.If the capacity of a joint rightholder to defend the jointly held right for the benefit of all of the joint rightholders is recognised, that substantive authority should be reflected in the rules of procedure. The obstacle implied by the obligation to call on rightholders who are, de facto, practically impossible to identify to participate in the proceedings would thus be overcome.

77.The defence of the copyright in the jointly owned work could, then, be undertaken by one or various joint rightholders where, given the circumstances in question, it was impossible to notify the rest of the joint rightholders of the proceedings, having used due diligence to identify them and call on them to participate.

78.These suggestions, I stress, are not intended to substitute the work of the referring court in the search for acceptable solutions in accordance with national law. If none of the rules, provisions and principles mentioned above allows that court to interpret domestic law in a manner consistent with Article 47 of the Charter, in relation to the relevant provisions of the directives on the protection of copyright, it must disapply the provisions that are incompatible with EU law. In that regard, it makes no difference whether such incompatibility is derived, strictly, from the CPI or from the interpretation of it given by the national courts.

V.Conclusion

79.In light of the foregoing, I propose to respond to the tribunal judiciaire de Paris (Court of Paris, France) as follows:

Article 8 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society and Article 3 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, read together with Articles 1 and 2 of Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights and with Article 47 of the Charter of Fundamental Rights of the European Union,

must be interpreted as meaning that:

they do not, in principle, preclude the admissibility of an action for infringement of intellectual property rights in a work of joint authorship being conditional on all of the co-authors being called on to participate in the proceedings.

Nevertheless, the application of that requirement must not make it impossible or excessively difficult for only one or various of the co-authors to bring actions, in which case the national court must give precedence to the right to an effective remedy enshrined in Article 47 of the Charter.

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Original language: Spanish.

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Directive of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

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3

Directive of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45, and corrigendum OJ 2004 L 195, p. 16).

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4

Directive of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 2006 L 376, p. 28).

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Directive of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (OJ 2006 L 372, p. 12).

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6

Loi nº 92-597 du 1 juillet 1992 relative au code de la propriété intellectuelle (JORF No 0153, of 3 July 1992; ‘the CPI’).

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7

Décret nº 75-1123 du 5 décembre 1975 instituant un nouveau code de procédure civile (JORF No 0285, of 9 December 1975).

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8

Paragraphs 1 to 12 and 42 to 60 of the order for reference.

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9

The assignment of that right included commercial and non-commercial cinema screening, television broadcasting, videograms made by any technical process as yet unknown at that time, and also remake rights.

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The terms of those agreements appear to be similar to those of the agreements signed by Claude Chabrol with Brinter.

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11

In his written observations (paragraph 1), one of the heirs of Claude Chabrol (Mr RB) states that it is Mr BS who acquired the copyright in the 14 films, through his companies Brinter and Artedis. He adds that Ms MW is the spouse of Mr BS and runs the companies Artedis, Panoceanic Films and Radio Days.

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12

According to the order for reference (paragraph 54), ‘in view of the forms of order sought by the parties, the claim is brought as an action for non-contractual infringement of copyright, in respect of both economic and moral rights, on the basis of which the main claims for compensation are made. Some of those claims also support an action for contractual liability and for termination of contract, on grounds of expiry, by operation of the termination clause or by means of a judicial decision in consequence of non-compliance with the contractual obligations’.

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13

Paragraph 57 of the order for reference.

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14

Paragraph 57 of the order for reference. The ‘estates’ called on to participate in the proceedings were: the ‘Charlotte Armstrong estate’, the ‘Daniel Boulanger estate’, the ‘Nicholas Blake estate’, the ‘Claude Brulé estate’, the ‘Edward Atiyah estate’, the ‘Ellery Queen estate’, the ‘Richard Neely estate’ and the ‘Patricia Highsmith estate’.

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15

Société des auteurs et compositeurs dramatiques (SACD). According to the order for reference (paragraph 59), the applicants initially regarded it as representing the ‘estates’ and, subsequently, as being obliged to communicate the names of the successors in title of the co-authors, or of the persons considered to be such.

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16

Société des auteurs, compositeurs et éditeurs de musique (SACEM).

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17

While that is the date that appears in the order for reference, it appears to be due to a typographical error, the date in fact being 16 February 2023. Mr RB highlights that fact in his written observations.

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18

Paragraph 55 of the order for reference.

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19

Paragraph 116 of the order for reference.

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Paragraph 120 of the order for reference.

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21

Paragraph 132.1 of the order for reference.

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22

Judgment of 10 May 1995, given in appeal No 93-10.945 by the First Civil Chamber of the Cour de cassation (Court of Cassation, France), cited in paragraph 77.1 of the order for reference. Paragraphs 78 and 79 of the order for reference also refer to the judgments of the same court of 12 May 2011, given in appeal No 10-14.646 (‘the admissibility of an action for infringement [of copyright] brought by one of the co-authors or their successors in title […] is conditional on all [of the co-authors] being called on to participate in the proceedings’), and of 21 March 2018, given in appeal No 17-14.728 (‘if the co-author […] is able to act alone in defence of his moral rights, it is on the condition that his individual contribution is capable of being separated out; […] if not, he or she must […] call on the other authors to participate in the proceedings’).

Paragraph 50 of the French Government’s written observations.

‘Mandatory joinder of claimants’ implies, as an inevitable prerequisite, the presence of a number of claimants whose joint participation in the proceedings constitutes an obligation established either by law or by the nature of the relationship at issue.

The term ‘notification’, in its procedural sense, equates to an invitation (or call) to a person to participate in the proceedings.

Paragraphs 53 to 56 of the French Government’s written observations and paragraphs 69 and 70 of the Commission’s written observations.

Paragraphs 58 to 62 of the French Government’s written observations and paragraph 72 of the Commission’s written observations.

‘… in the absence of EU rules on the matter, it is for the national legal order of each Member State to establish, in accordance with the principle of procedural autonomy, procedural rules for actions intended to safeguard the rights that individuals derive from EU law, provided, however, that those rules are no less favourable than the rules governing similar domestic actions (the principle of equivalence) and do not render impossible in practice or excessively difficult the exercise of rights conferred by EU law (the principle of effectiveness).’ Judgment of 30 April 2024, M.N. (EncroChat) (C‑670/22, EU:C:2024:372, paragraph 129).

Paragraphs 71 to 78 of the French Government’s written observations.

Paragraphs 85 and 86 of the written observations of the French Government.

Even though that dispute did not concern an objection that the claim was inadmissible, the Court of Justice has ruled that ‘the fundamental rights to an effective remedy and to intellectual property, enjoyed by the holder of the copyright, [may be] seriously infringed’ by an interpretation of national legislation relating to the provision and obtaining of evidence, whereby, in practice, ‘proving the alleged infringement of copyright … [is] rendered impossible’. Judgment of 18 October 2018, Bastei Lübbe (C‑149/17, EU:C:2018:841, paragraph 51).

Judgment of 11 July 2024, Skarb Państwa (Payment not significantly delayed or small claim) (C‑279/23, EU:C:2024:605, paragraph 29): ‘… the principle that national law must be interpreted in conformity with EU law requires national courts, in observance of, inter alia, the prohibition on interpretation of national law contra legem, to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the directive in question is fully effective and achieving an outcome consistent with the aim pursued by that directive …’

Ibid., paragraph 30: ‘The requirement to interpret national law in conformity with EU law entails, in particular, the obligation for national courts to change established case-law, where necessary, if it is based on an interpretation of national law that is incompatible with the objectives of a directive. Consequently, a national court cannot validly claim that it is impossible for it to interpret a provision of national law in a manner that is consistent with EU law merely because that provision has consistently been interpreted in a manner that is incompatible with EU law …’

Written observations of Mr RB, paragraph 17.

Written observations of the rest of the heirs of Claude Chabrol and Paul Gégauff, paragraphs 21 and 22.

Paragraph 12 et seq. of the written observations of Mr RB, in which he argues that the action for infringement of copyright borders on the ‘preservation’ of that right and that, by its nature, that action is brought in defence of the common interest of the joint rightholders. Similarly, the written observations (paragraphs 27 and 28) of the rest of the heirs Claude Chabrol and Paul Gégauff note that the action brought by the applicants is defensive in nature and that its purpose is to preserve the common interest of all of the co-authors and their successors in title. The order for reference (paragraph 86) refers, in general terms, to the possibility of the action being limited to seeking a preservatory measure.