This right makes it possible the author of a work to obtain a
remuneration for the exploitation of this one, and to determine how it will be
used. It includes/understands in particular the reproduction right and that
of representation : any representation or reproduction, integral or
partial, made without the assent of the author or his having right, illicit and
are qualified counterfeit. It is the same for the translation, the adaptation,
arrangement by any process of an original work.
These rights consist of the possibility for the author of
communicating work with the public by an unspecified process. However, under
the terms of the Code of the intellectual property, there are two means of
communication of a work to the public :
the material fixing of work allowing an indirect
communication the public : it is about the reproduction which is thus
carried out via a support (numerical or not).
a communication not requiring any support, characterized by
the use of a vector of telecommunication : it is then about the
representation.
· Reproduction right of a work on
Internet :
The presence of a work on Internet implies beforehand its
digitalization. However, such an act corresponds not only to one reproduction
of work, but also to its adaptation, because of transformation of analogical
data into binary data. In this respect, the green Book of the European
Commission on the royalties and the close rights (July 1995) establish that the
digitalization of a work must fall under the empire from the reproduction
right, just as the loading of this one on the main memory of a computer.
The digitalization of a work must thus be authorized
beforehand by the holder of the rights on this one and is not likely to profit
from the exception for private copy, generally authorized by the law.
Lately, of the students had digitized of the texts and
extracts of songs of Jacques Brel, then had installed them on their Web page
without any authorization. They were condemned. One of the problems raised by
this business was to know if the exception of copy of private use were
applicable, against the reproduction right of the authors. However, the Code of
the intellectual property states that the copy reserved for the private use is
licit in condition of not being intended for a collective use, but precisely
the vocation of Internet is to allow thirds connected to visit the private Web
pages and to possibly take copy of it.
Moreover, a simple transfer of the reproduction right on paper
medium automatically does not imply the right of digitalization, which explains
the need, for the traditional editors, to renegotiate the contracts which bind
them to the authors concerned.
· Right of representation works on
Internet :
It seems undeniable that digitalization involving the
appearance of the data on the screen of the Net surfers, constitutes a
communication by remote transmission. Indeed very proceeded of
telecommunication allowing the diffusion of sounds, images or other data of any
nature, is regarded as a remote transmission constitutive of a
representation.
The provision of creations on the network, via a Web page,
thus constitutes well an act of representation with regard to the users of the
network. But can one consider that the users of Internet correspond to the
concept of « public », while at the same time what
characterizes them, it is their dispersion in a multitude of private places,
and their positive and voluntary action to connect itself to such or such
site ? The jurisprudential decisions go in this direction and tend to
consider that the provision of a work on Internet creates a possible public
automatically or « virtual ».
The setting on line of a creation without authorization of the
author thus constitutes a violation of its right of representation.
There is an exception to the right of representation, there
acts of the right of quotation, contained in the L122-5 article of the Code of
the intellectual property : « the analyzes and short quotations,
subject to the indication of the name of the author and the source, are
authorized when they are justified by the critical character, polemical,
teaching or of information of the work to which they are
built-in. »
It is then possible to carry out a work made up of a great
number of quotations ?
This problem was raised at the time of a Microfor
business/the World : the Microfor company had carried out a
bank of data including/understanding of the summaries of articles of press,
without assent of the newspaper the World. The magistrates judged that the
summaries, only made up of short quotations of work, did not exempt the reader
to resort to the original, and that the whole of this publication had the
character of a work of information.
Thus, the installation of a Web site made up of several
summaries or quotations of preexistent works, with an aim of illustrating a
determined topic, enfreint not necessarily rules of the author's copyright and
artistic. This kind of site often meets on the network, and is not the subject
of systematic legal procedures.
