civil codes must be referred to, in some countries on this point but such a task is not within the scope of this paper. However, it should be readily apparent that there is a "great diversity of the principles governing the works of joint authorship throughout the world." 98 Rarely do foreign copyright statutes mention the rights of coowners (as distinguished from joint authors) of a copyright, possible because often the rights of coowners of property of all kinds are set out by civil codes. It is also reasonable to assume that, in most cases, the rights of coowners are the same as those of joint authors, excluding such refinements as moral rights, or, as in the case of the United States, the renewal right. The charts to follow are designed to provide an easy method of comparing the statutory provisions of 14 foreign countries which deal with joint authorship of copyrights. They also present a reference table for the subject matter and reflect salient features of foreign law which not only are controversial, but are the heart of the problems attending joint authorship of copyrights. Argentina. Austria CHART 1.-Defining joint authorship in terms of resultant work Brazil. Canada. 11(1). Such that one contribution is not distinct from another. Such that contributions cannot be separated. An indivisible whole, even if contributions can be distinguished. The result of several contributors. Such that the contributions cannot be separated. Made up of indistinguishable and inseparable contributions. The result of mere collaboration. Such that separate contributions cannot be identified or such, that separate contributions though they can be determined, are used together. Work not consisting of independent contributions. Such that contributions cannot be separated. Such that one contribution is not separate from another. NOTE. For citations of statutes here used, refer to table on p. 107, infra. Comments.-All of the countries included in this chart define joint authorship by statute, although the terms "collaboration" or "collaborators" are often substituted for "joint authors" or "joint authorship". There is general agreement in 10 countries that joint authorship must be the result of collaboration such that, in viewing the final product, it will be impractical or impossible to separate individual contributions of the work. The other four countries apparently do not require inseparability of contributions. Czechoslovakia requires that the result of the creation be an "indivisible whole *** *even if the individual contribution can be distinguished.' "Rosengart, Principles of Co-Authorship in American, Comparative, and International Law, 25 SO. CALIF. L. REV. 247, 286 (1952). Argentina, Austria, Brazil, Canada, Chile, German Federal Republic, Italy, Sweden, Switzerland, and the United Kingdom. 100 See Chart 1. The French statute simply defines a work of collaboration as a "work to the creation of which several persons have contributed." The Japanese and Mexican statutes, by way of contrast, have separate clauses or provisions mentioning both separable and inseparable contributions. In defining joint authorship, the use of variations of the word "separate" apparently has been found more satisfactory than use of such terms as "distinct" or "indistinguishable." The 1956 British Copyright Act has changed the former definition of a work of joint authorship from one reading to the effect that it consists of contributions "not distinct" 101 to read contributions "not separate." 102 The provision of Italy's copyright statute requiring works of joint authorship to consist of "indistinguishable" parts 103 has been criticized by one commentator who concluded that use of the phrase "inseparable parts" would, alone, suffice in defining joint authorship.10 As will be illustrated by chart 4, to follow, interpretations differ as to whether or not contributions to songs, operas, cinematographic productions, and similar works, are separable. CHART 2.-Defining joint authors in terms of property rights NOTE. For citations of statutes here used, refer to table on p. 107, infra. Comments. An aura of vagueness pervades foreign statutory provisions which mention joint authorship in terms of property rights. Although there are usually "key" words describing the relationship, there are rarely indicia of what these qualifying terms imply. Joint authors are said to hold the copyright "jointly", or "in common," or they enjoy "equal rights." Presumably these terms refer to definitions found in civil codes. The German statute reads: Where several persons have jointly created a work in such a manner that their contributions cannot be separated, there will exist between them a community of undivided shares within the meaning of the Civil Code,105 Similarly, the Italian law states that the provisions which regulate property owned in common shall apply to joint authorship of copyrights. 106 101 Copyright Act, 1911, §16(3). 102 Copyright Act, 1956, §11 (3). 103 Italy, Art. 10. 194 Greco, Collaborazione Creative E. Comunione dei Diritti di Autore, N. 1 IL DIRITTO DI AUTORE, 1, 2-7 (1952). 105 German Federal Republic, § 10. 106 Italy, Art. 10. CHART 3.-Rights of joint authors [Col. A: Provisions requiring joint authors to act in concert before using or licensing use of the work. Col. B: Legal remedies against the joint owner who refuses to join the agreement to use or license use of the work. Col. C: Statutes allowing a joint author to sue in his own name] NOTE. For citations of statutes here used, refer to table on p. 107, infra. Comments. Column A: The copyright statutes or case law of most foreign countries listed on the chart require joint authors to reach an agreement before using or licensing the use of the copyrighted work. Typical of such a provision is the Austrian statute, which succinctly states that "Any alteration or use of the work shall require agreement of all coauthors." 107 In Canada 108 and Great Britain,109 where the statute is silent on this point, the courtmade law has dictated that joint authors must dispose of the work in concert. The Brazilian statute qualifies its provision requiring joint authors to reach an agreement before disposing of the work with the stipulation "except in the case of a collection of the complete works of any such collaborator." 27 110 The view of requiring joint authors of copyrights to reach an agreement before disposing of their rights has been previously discussed in connection with the English case law, and the fact that virtually all of the countries studied have adopted this view merits consideration of such an approach. Column B: In addition to providing by statute that coauthors reach some sort of agreement before economic exploitation of the work begins, one often finds "follow through" provisions in the foreign laws. The function of the "follow through" provisions is to allow adjustments to be made, should a stalemate be reached in negitiations among joint authors. In Brazil, if the joint authors are in dispute, the majority rules, and if there is then objection on the part of the minority faction, the dispute is settled in court. In Japan,112 in cases where contributions of authors of a joint work are inseparable, it is possible for joint authors to acquire a dissenting joint author's share of ownership in the copyright upon paying him an "indemnity." 107 Austria, § 11(2). 10 Massie & Renwick, Ltd., v. Underwriters' Survey, Ltd. [1940] 1 D.L.R. 625. 109 Cescinsky v. Routledge, [1916] 2 K.B. 325. 110 Brazil, Art. 653. 111 Id.. Art. 654. 112 Japan, § 13. The merits of such "follow through" provisions are debatable. In a sense, it is logical that some remedy should be afforded joint authors who are being unjustifiably "held up" by a dissenter who wants a larger share of the profits-to-be. At the same time, it is not seemingly just to allow a majority of the joint authors to confiscate a fellow collaborator's property. Also debatable is the practice of placing power in the courts to adjudicate essentially private matters. Column C: Many of the countries listed on the chart specify by legislation that a joint author may institute a cause of action in his own name, without the necessity of joining other joint authors. As to the countries not prossessing such legislation, it has been observed that "It would seem that, even in those countries where the copyright law is silent, a similar rule is applied either under the codes of civil or criminal procedure, or, as in Canada, for example, in the jurisprudence." 113 Argentina... Austria... Brazil. CHART 4.-Coauthorship of works involving music Country Article or Special feature 17, 18 If music is joined with words, the music and text are considered separate works. The composer and librettist of an opera may separately exploit their separate contributions. 11(3) 655 Case law 3 8 10 Canada... Chile... Czechoslovakia... France.... German Federal Republic.... 5 34 Music joined with words will not in itself create joint authorship. Composer may exploit the music separately, but must indemnify the author of the words. Composer and lyricist are "probably coauthors." Composer of music to be sung is presumed to own the complete copyright to the work. Song consisting of music and words is considered a composite work. Coauthors retain rights in separate contribu- Music and words are separate works. Author of words and author of music own the Case law See arts. 15, 17, 18, and 32. Probably considered composite works. NOTE. For citations of statutes here used, refer to table on p. 107, infra. Comments. Among the 10 foreign countries listed in this survey whose laws provide that a work of joint authorship consists of contributions which are not separable, there is a disagreement as to the basic nature of works which embody musical compositions. In theory the work of the composer and the lyricist are in fact separable works, and should be so treated. But, for example, Canada has held, in spite of its statutory language, that a comic opera is a work of joint 113 2 UNESCO COPYRIGHT BULLETIN, 2-3, p. 112 (1949). authorship.' 114 Italy has provisions in its law which strongly intimate that authors of this type of work are joint authors. 115 And in Brazil,116 it is provided that in the case of musical compositions combined with a poetic text, the author of the music may "perform and publish the composition *** independently of the author of the words", but that he must "indemnify the author of the words." The question is then, for copyright purposes, whether a song or an opera or a dramatico-musical work is to be considered as a single unitary work, or as a composite of separate contributions. This is a problem which requires careful consideration, including practical implications of what such a determination might be. Country Argentina... Austria.. Brazil.. Canada_ Chile... Czechoslovakia.. France.... Table of Statutes Cited in Charts Law Law No. 11.723 of Sept. 28, 1933. Copyright Act, R.S., c. 32, S. 1 (1952). Law No. 57-296 of Mar. 11, 1957. Act of June 19, 1901, as amended. Law No. 633 of Apr. 22, 1941, as amended. Law No. 39 of Mar. 4, 1869, as amended. Law No. 381 of May 10, 1919, as amended. British Copyright Act of 1956, 4 and 5 Eliz. VI. SUMMARY AND CONCLUSION 1. JOINT AUTHORSHIP As indicated above, the omission from the copyright law of any provisions defining joint authorship, required the courts to deal with this question without the benefit of any legislative directive. Originally, the courts required the pursuance of a common design and close collaboration by the creators in order that the resulting work be considered a joint creation of multiple authorship. Later decisions extended the principle to those works which were produced as the result of a common design, notwithstanding that the collaboration was not coincident in point of time. Logically, there can be no quarrel with this extension. If each contributor to the completed work knew that his effort was part of a complete whole in which several persons were laboring, the status of a joint work would not seem to be prejudiced by the fact that each contributor did not know the other personally, or that the parts of the completed work were produced at different times, and not together. But a questionable situation was created when the court in the 12th Street Rag case 117 extended this doctrine to a situation where there could in no sense be said to be a collaboration of the authors in pursuance of a common design. In that case the court adopted a "fusion of 114 Thibault v. Turcot (1926), 34 REVUE LEGALE [N.S.] 415, 419; accord: Fox, CANADIAN LAW OF COPYRIGHT 252 (1944). 115 Italy, Art. 34 et seq. 118 Brazil, Art. 655. 117 See note 18 supra. |