"Remix prohibited: how rigid EU copyright laws inhibit creativity"

With the emergence of the digital environment, the issue of “transformative uses” in copyright law has gained renewed interest in legal literature. While many authors emphasized the challenge that these transformative practices constituted for copyright law, there has been a clear lack of comprehensive study of the extent of copyright law's (in)hospitality to such practices. In addition, too little attention has been paid to possible solutions to resolve this conflict inside the copyright regime. This paper aims to contribute to fill these two gaps. In this first paper, we will provide a comprehensive assessment of the status transformative uses in EU, Belgian and French law, informed by a vast body of case law. In a second paper, we will discuss potential solutions drawing inspiration from Canadian copyright law, which has recently experienced both the introduction of a legal exception for user generated content, and a court-led shift from a traditional closed-list fair dealing ...


INTRODUCTION
It has become almost cliché to recall that copying is an integral part of artistic creation.Yet it apparently needs some repeating, as it is a reality that copyright systems have failed to fully acknowledge to this day.
Great painters have always transformed preexisting works to turn them into something of their own 1 .In the 20 th century, artists started to borrow more than ever and after Duchamp, developed comprehensive practices fully based on the reuse of existing works: Dada, Pop Art, Conceptual Art, etc. which fit in a broad category, the socalled "Appropriation art".Hosted by the greatest Museums, works by Duchamp and his heirs are considered among the most important works of art of the last century.In the early 90's, the Rogers v. Koons 2 case drew some attention to the legal aspects of Appropriation Art.
The increased accessibility of the means of creation and dissemination of intellectual creations has led to a popularization of these practices of reuses.These new technological tools create the opportunity for a transition to a more active culture, where users actively engage in the creation of meaning by playful recreation and critical reinterpretation of existing intellectual creations 3 .These new practices of remix, mashups, fan fiction, modding, etc. also offers new opportunities for learning and empowering individuals through cultural participation 4 .These transformative practices are marginalized by the copyright regime : indeed, such creative practices based on the reuse of existing works are at odds with a legal regime based on the prohibition of unauthorized reproduction.However the goal of a copyright regime is to encourage all forms of creativity, however alien they are to the traditional model of original creation and authorship.Copyright law should be designed in a way that makes it as much as possible agnostic to the forms of creation, and allow it to accommodate (or even support) the everchanging cultural practices.This paper is the first installment in a series of two.The aim of this first paper is to substantiate the claim that copyright law is inhospitable to transformative use, by drawing up a compehensive inventory of the many legal issues that may arise in the path of transformative uses of existing works.In addition to European law, we will focus on Belgian and French national laws (both representative of the rigidities of european copyright regimes), with an emphasis on case law.Although the case for allowing more breathing space for transformative use has already been made by other scholars 5 , our hope is that a detailed overview helps drawing attention to the extent of the problem.
In a second paper, we will consider two possible way forward inspired by recent evolutions in Canadian copyright law.
In this paper, we will define broadly "transformative uses" as encompassing all derivative creations based on preexisting works without authorization of the author of the first work, whether they are as such protected by copyright or not.This paper will focus on transformative uses of works belonging in the field of visual art, including sculptures, paintings, photography and other graphic works.Although musical and cinematographic works raise particular problems that we cannot reasonably cover in this article, notably with regard to related rights 6 , the main issues will be for the most part quite similar with visual works.Moreover, although we are concerned by both artistic transformative uses and emerging remix practices in the digital environment, the discrepancy in the volume of case law will drive us to concentrate more on the former.In general, our conclusions will be largely applicable to other types of works.
The elusive originality criterion.-Discussing transformative uses implies first defining the originality criterion, being the very condition of copyright.The originality criterion has received a certain level of harmonization in European law 11 with the adoption by the Court of Justice of the European Union (CJEU) of its (vague) standard of originality as the "author's own intellectual creation" 12 .The Court further held that this same criterion applied to every type of work 13 and also clarified that the criterion has to be understood according to the "continental tradition", that is, to reflect the personality of the author 14 .Since then, Belgian and French case law have nominally sticked to this interpretation 15 .However, although this "personal stamp of the author" criterion has sometimes been considered as a high threshold, the case law of lower courts in both Belgium and France largely invalidates this conclusion.Indeed, in recent years, creations that have been considered original 10 J. O  BRISON.Commentators suggested this was a slip of the pen.The Court of cassation has confirmed their opinion and therefore departed from this last mentioned case in two decisions from October 31, 2013 (J.L.M.B., 2014, p. 445) and March 17, 2014 (available on www.juridat.be),holding that the creation should reflect the author's personality.In France, see the leading commentators A. LUCAS, H.J. LUCAS, A. LUCAS SCHLOETTER, Traité de la propriété littéraire et artistique, 4 th ed., Paris, LexisNexis, 2012, p. 118 and following, and references.include neologisms 16 , titles 17 , slogans 18 , press dispatches 19 , food photographs 20 , insurance general terms 21 , etc.In the state of positive law, a clear understanding of what is actually original is elusive.It seems that almost everything could potentially be considered original.

a. Rights of the author potentially involved in transformative uses
Generalities.-EU copyright law has partly harmonized economic rights whereas Belgian and French copyright laws grant authors economic and moral rights.We will review these different rights, since transformative uses can in fact infringe most of them.Let's recall that consistent with EU law, the duration of economic rights in In Infopaq, the CJEU specified that to constitute a "reproduction in part", a work must contain elements of another protected work that expresses the author's own intellectual creation 24 .This would mean that the scope of the right of reproduction coincides with the scope of originality 25 .Therefore, as soon as original elements of a prior work can be found in a second work, then the right of reproduction of the prior work's author is infringed (save the independent creation defense 26 and the exceptions, see infra) 27 .Accordingly, and contrary to American copyright law, it seems that EU law does not require any substantial similarity requirement conclusive of an infringement, nor allows for any de minimis reproduction (but see infra on incidental reproductions), which are far harsher conditions for potential transformative use.These conclusions could however be challenged 28 .not bear any real consequences.
The author enjoys protection against both literal and nonliteral copying.Hence, there is as such no formal distinction between reproduction and adaptation since the latter is deemed a particular aspect of the former.This point will be further discussed infra 29 .
French and Belgian case law seems consistent with the CJEU's interpretation, since according to both countries highest court (the Court of cassation), reproduction of original elements of a prior work in a second work falls within the scope of the right of reproduction 30 .As with EU law, the scope of protection corresponds with that of originality 31 .
However, in finding an infringement courts will often emphasize the similarities over the differences 32 .Particular illustration of this procedural means of interpretation can be found in the abundance of case law finding infringement where a same "global impression" is triggered by the comparison of the works 33 .Significance of this rule is not clear, nor is its consistency with Infopaq.Indeed, where the mere act of borrowing falls within the meaning of reproduction, there is no room at the infringement stage for an assessment of the extent of the similarities 34 .Despite this potential discrepancy between the definition of reproduction and the infringement test, the length of the borrowed element is not relevant.Consequently, there is normally no de minimis threshold for infringement.Transformative uses will therefore almost always make a prima facie case of infringement (that is, before considering if the use is covered by an exception).In France however, case law has developed that considers "accessory reproduction" as falling outside the right of reproduction (see infra).
Finally, only the very act of borrowing infringes on the right of reproduction, not similarity per se.Independent creation is therefore a valid defense 35 .This defense is however of little interest for the admissibility of transformative uses according to our definition (where borrowing is assumed).According to the first reading, any copying that is not a slavish copy of what is original in the first work, would fall outside the right of reproduction.This seems rather at odds with the requirement of a broad interpretation of the right of reproduction made by the CJEU 38 .

Right
According to the second reading, close copying would be covered.In particular, borrowing of elements lying beyond the exact expression of a work would fall within the scope of the right of reproduction when they are the author's own intellectual creation.
Neither the InfoSoc Directive nor the CJEU have provided any definition of "expression".Only the Software Directive mentions the opposition between the protected "expression in any form of a computer" and the unprotected "ideas and principles which underlie any element of a computer program, including those which underlie its interface" (article 1 (2)), but this hardly qualifies as a definition.Interpreting this provision (under the former Software Directive), the Court of Justice considered that "the object of protection conferred by that directive is the expression in any form of a computer program which permits reproduction in different computer languages, such as the source code and the object code" 39 .This suggests a broad understanding of the term "expression".However, no lesson can be learned with regards to general copyright law since, as previously mentioned, the right of adaptation is harmonized in the Software Directive (contrary to the InfoSoc one).
Nevertheless, the Painer case provides evidence that the right of reproduction might cover the right of adaptation.In the national (Austrian) proceedings, it was discussed whether a photofit based on a photograph should be considered an adaptation that requires the photographer's consent or a free use (freie benutzung).The CJEU, asked to determine the copyrightability of photographs under the InfoSoc Directive, referred in its preliminary ruling to the right of reproduction 40 .Although hypothetical, this could reveal that for the Court, adaptation has to be considered as falling within the right of reproduction.
In addition, the CJEU recently held in the Deckmyn case that a parody is an autonomous concept of EU law 41  between parodies "by reproduction" harmonized thorough EU and parodies "by adaptation" left to the national legislator.This could be seen as additional evidence that the Court considers the right of adaptation as a part of the right of reproduction.
Generally speaking, we think that to a large extent, considering adaptation separately from reproduction is a common mean to avoid the impossible task to draw the dividing line between idea and expression.We largely share the view of an American commentator, according to whom "The ideaexpression dichotomy was developed to apply to, and indeed only makes sense when applied to persons who infringe by making nonliteral copies of copyrighted works" 43 .But surely EU harmonization would be excessively narrow if it was only concerned with protection against slavish copy 44 … Belgian and French law.-According to the legal literature, adaptation can be defined as the reproduction of a work in an other genre, an other form, or an other language 45 .
As mentioned previously, the right of adaptation under Belgian and French law is not considered separately from the right of reproduction.
Where reproduction stricto sensu is material, adaptation is deemed an intellectual reproduction 46 .
There is no doubt transformative uses will often qualify as adaptation (or intellectual reproduction).In one of the most relevant case where an artist borrowed the figure of the painter from James Ensor's work Self Portrait with Masks and replaced most of the masks by Belgian novelists' faces, the judge held that it was an unauthorized adaptation 47 .

b. Adaptation apart from reproduction
Belgian and French law.-A distinct issue is raised when the adaptation involves no reproduction whatsoever, but merely consists of a reworking of an existing copy of a copyrighted work (the corpus mechanicum).

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What are, if any, the rights involved in such a situation?In Belgium and in France, the issue has been tackled from two different perspectives.
First, the reworking of a particular copy of a work could fall within the scope of the right of adaptation.There are only few cases since the issue is often tackled from the second perspective presented below.Particularly relevant, one French Court recently held that the reworking of an advertising poster by a famous Belgian artist who has drawn tattoos with a felt pen on the body of the represented model (Kate Moss) constitutes an infringing adaptation 48 .
Second, some consider that this kind of transformative use could constitute an infringement to the socalled "right of destination" of the author.To our knowledge, the "right of destination" is a particularity in Belgian and French copyright law.It would entitle the author with the right to control the destination of a copy of his work, that is, to determine the uses that can be made of this copy.This construction stems from a doctrinal and jurisprudential theory based on a broad understanding of the right of reproduction 49 .Some scholars criticize this "right of destination" and its consistency with EU law is disputed 50 .
The plasticity of the concept of a "right of destination" gave rise to its application in different contexts.Two Belgian cases seem particularly relevant regarding transformative uses.It has been held that a defendant who had bought an album of posters of Tintin, separated them one by one and sold them in separate frames, actually infringed on the author's "right of destination", since the destination of the posters was to be sold to the consumer, together and attached to one another 51 .Another Court held that to integrate a statue located in the public space into a work of conceptual art by surrounding the statue with a ribbon bearing the mention "Kijkverbod" ("Looking prohibited") infringes on the destination right of the sculptor, since its destination is to be on display in the public space and not to be integrated into another work 52 .Commentators have however suggested that these situations would be better considered as unauthorized adaptations 53 .
In addition to these two legal hypotheses, the right of distribution found in EU law (as within national laws) can be raised any time the reworked copy is put on the market in the EU.This issue is discussed in the next section.

Right of distribution
EU law.-Under EU law, the author is entitled to the exclusive right to authorize or prohibit any form of distribution to the public by sale or otherwise (article 4 (1) InfoSoc Directive).This right is limited by the exhaustion rule, enshrined in the article 4 (2) of this Directive.
The exhaustion rule is generalized in EU IP law but with slight differences among the various IP rights.One relevant difference is that whereas trademark law and patent law allow the right holder to oppose further commercialization of the marked goods or patented product for legitimate reasons54 , there is no such reservation in copyright law (nor in design law).The Trademark Directive and Regulation specify these legitimate reasons by saying they are met "especially where the condition of the goods is changed or impaired after they have been put on the market".To some commentators, the same solution should apply to copyright law 55 .If so, it would mean that a reworked copy of a work that is subsequently put on the market in the EU would infringe on the distribution right of the author of the work embodied in the said copy.
The Dutch Supreme Court recently raised this issue before the CJEU56 .The case concerns paper posters of works of art put on the EU market with the consent of the right holder, then legitimately acquired by a company that proceeded to the transfer of these posters' ink onto canvas, which were then sold.In brief, the Dutch Supreme Court referred the case to the CJEU as to know whether the right of distribution governs this situation and if so, whether the right is exhausted.In its recent ruling, the CJEU considered that this situation falls within the scope of the right of distribution since both the paper poster and the canvas transfer contain the image of a protected artistic work 57 .
In our view, this amounts to a minimal harmonization of the adaptation right.Indeed, the act of transfering the ink from the poster to the canvas actually qualifies for adaptation in some jurisdictions, especially in Belgium and France 58 where adaptation right is considered a part of the reproduction right.In that regard, the Court notably held that a replacement of the medium is "… an alteration of the copy of the protected work … that is actually sufficient to constitute a new reproduction of that work, within the meaning of Article 2(a) of Directive 2009/21 …" 59 .Therefore, the author's right of distribution is not exhausted in that case because his initial consent "… does not cover the distribution of an object incoporating his work if that work has been altered in such a way that it constitutes a new reproduction of that work" 60 .According to the paragraph 45 of the decision, it seems that such an alteration can be found where the altered object itself, taken as a whole, is not, physically, the object that was placed onto the market with the consent of the rightholder.
Close reading of this last part suggests that some legitimate artistic practices such as 'collage' would be deemed infinging, contrasting on this point with the suggestion of the Advocate general 61 .In other words, it looks like the many contemporary artists who physically borrow from their surrounding world (see e.g. the Kate Moss 'tatoo' mentioned above) couldn't find no shelter under the exhaustion rule.
Belgian Finally, there will be no exhaustion for transformative uses of a copy of a work when the considered use consists in a reproduction of that copy.Since only the distribution right and not the right of reproduction is exhausted, it has been so held that an add showing a model wearing a copyrighted blouse, lawfully acquired on the market, infringes the right of reproduction of the designer 64 .
4. Right of communication to the public, including the right to make available EU, Belgian and French law.-It is beyond the scope of this article to deeply analyze the scope of the right of communication to the public, including the right to make available.Let's recall that to be an 'act of communication', "(...) it is sufficient (...) that a work is made available to a public in such a way that the persons forming the public may access it, irrespective of whether they avail themselves of that opportunity" 65 .Regarding the definition of the 'public', the CJEU held that this term "(…) refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons" 66 .It is not sure whether the pursuit of a profit is a necessary condition for the existence of a communication to the public 67 , but a recent decision from the CJEU suggests that the profitmaking goal would hardly be relevant68 .In any case, we posit that communication to the public and making a transformative work available will constitute an infringement every time the transformative work infringes on the exclusive rights discussed above.Hence, there is no need to further analyze this point here.
5. Right to exhibit the work EU law.-The right of communication to the public only covers communication to a public not present at the place where the communication originates and therefore does not cover local performances such as displays or exhibitions 69 .In addition, the CJEU specified that exhibiting reproductions of a work does not constitute distribution within the meaning of article 4 of the Directive 70 .
Belgian and French law.-In Belgian and French law, by contrast, it is generally acknowledged that the right of communication to the public also includes the exclusive right to exhibit one's work 71 .On this point, the French Court of cassation has explicitly stated that exhibiting a photograph falls within the scope of the right of communication and therefore requires the preliminary authorization of the author 72 .Moreover, it seems that not only original (in the sense of unique) works of art are concerned but reproductions as well 73 .Therefore, to exhibit a reworked copy of a work may be deemed an infringement 74 .
A particular provision in the CDE entitles the acquirer of a work of art to the right to exhibit the work but only as such, under conditions that are not damaging to the honour or the reputation of its author (art.XI.173, § 1).Close reading suggests that exhibition of the work is prohibited any time it has been modified.
In France, nothing in the law entitles the acquirer of the work to the right to exhibit it.The author therefore retains his right.Scholars sometimes admit the idea of an implied transfer 75 .
ii. Moral rights Generalities.-Moral rights are not harmonized throughout the EU, but minimal harmonization is made through article 6bis of the Berne Convention that provides that "the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation".
As it is commonly known, Belgium and France go much further since they have a strong moral rights tradition, especially the latter.In Belgium and France, moral rights include the right of divulgation, the right of attribution and the right of integrity of the work, and, in the sole case of France, a right of retraction.In this article, we will mostly focus on the right of integrity of the work.
Moral rights are inalienable in both countries, but in Belgium the legal regime is less protective, as the author can partially renounce to the enforcement of these rights although he will in any event maintain the minimal right to oppose distortions that may damage his honour or reputation, similarly to the narrower Berne moral right.Similarly, while in France moral rights are "perpetual and imprescriptible"76 , in Belgium their term of protection is the same as economic rights, i.e. 70

Right of attribution
Belgian and French law.-Reproducing a work without mentioning the name of its author infringes his or her right of paternity.According to the French Court of cassation, to reproduce in whole or in part the work of an other author and to claim authorship upon it necessarily violates his or her moral right 77 .Some commentators have however suggested that so worded, the right of attribution may go too far 78 .
Regarding reproduction in part, it's worth mentioning here that the right of attribution can be seen as the rationale for the requirement to indicate the author's name as a condition of the quotation exception 79 and that failure to meet this requirement is often condemned in France (see infra).

Right of integrity of the work
Belgian and French law.-The right of integrity is an important hurdle to transformative uses.Indeed, its scope is not limited to modifications of the work "prejudicial to the author's honour or reputation" (as in article 6bis Berne Convention supra), but extend to any modification that the author deems a violation of the integrity of the work.
The Belgian Court of cassation recently outlined this right as follow: "The right of integrity entitles the author with the right to oppose to any material modification made to the work considered as a whole, without the need to demonstrate any prejudice.
To this regard, no matter if the modification lies in an addition, a subtraction or a reworking, in so far as it harms the integrity of the work.(…) The right of integrity also offers protection to the author against nonmaterial modifications that harms the spirit of the work."The same conclusion holds for French law 81 .Moreover, it seems that not only authentic works of art are concerned but reproductions as well 82 .Therefore, reworking of a copy of a work may be deemed infringing on the right of integrity 83 .
Even though in theory the right of integrity is not discretionary and the theory of misuse of rights is supposed to be a valid defense 84 , in practice it will often fail to avoid findings of infringement for even the slightest modifications.
Material modifying photographs 88 ; reproducing an excerpt of a work 89 ; etc.In another case, a defendant had touched up a photograph by dressing the represented naked model (viewed from the back) with a swimming suit onto which banknotes were reproduced.This is the kind of modification of a work one can easily find on the Internet.In this case, the Court of Appeal held this was infringing on the photographer's right.The French Court of cassation dismissed the petition 90 .
Immaterial modifications.-Reuse of a work can be found infringing on the right of integrity even when there is no material modification, but a mere recontextualisation of the work, either by putting it in a new context or by changing its meaning.This can be caused through non material modifications, but will often be coupled with a physical change of the work (reproduction in part or adaptation) 91 .Such immaterial modifications are often considered as harms to the spirit of the work in French and Belgian case law.Let us recall here the case, discussed above, of the statue integrated in a work of conceptual art by the addition of a ribbon, which was considered an infringement on the "right of destination".Some have however suggested that this act harmed the spirit of the work even though no physical change occurred 92 .Aside from this particular one, there is a large number of cases where transposing a work in another context (be it political 93 , advertising 94 , pornographic 95 , associated with illegal practices 96 or causing a modification in the meaning 97 ) has been considered an infringement.Concerning a video sampling of portions of documentaries (themselves based on cinematic archives), the Court of Appeal of Paris stated in general terms that "(…) the plain inclusion in a work of excerpts from an other work evidently leads to an alteration of the latter, since so shortened and put in a different context, this work receives through contact with the derivative a new look and meaning and therefore no longer reflects its author's personality" 98 .
Intermediate conclusion: author's rights and transformative uses.-Author's rights in EU, Belgian and French law seem pretty invasive and their scope very broad.Both economic and moral rights appear to be major hurdles to transformative uses.
In copyright case law, the cases strictly related to Art or UGC are sparse.Nevertheless, if we consider a wider set of cases, we can conclude than most of practices widespread in the Art world or on Internet can be deemed to infringe on both economic and moral rights of the author of a prior work.Indeed, the extent of the definition of exclusive rights is such that they are almost always involved.To illustrate this conclusion, let us consider three example cases.
Consider the works of famous pop artist Roy Lichtenstein, well known for his painted adpatation/appropriation of comic books 99 .The act of copying (in whole or in part) comic books thumbnails involves the reproduction and adaptation rights.Lack of attribution to the comic book authors involves the right of attribution.Cropping wider images (before enlarging the cropped excerpt) involves the right of integrity.
As a second example case, let us now have a look at one of the favorite IP blogs of many copyright lawers : the IPKat blog 100 .The blog features frequent insightful updates on intellectual property news, illustrated by adorable pictures of cats, which are most probably used without the authorization of their respective authors.This is a widespread practice among blog authors.But it is also a practice that intersects with many exclusive rights.Illustrating a blog post with a picture obviously involve the reproduction right.Lack of attribution to the original photographer involves the right of attribution.Modifying or transposing images in a thumbnail verion could also involve the right of integrity.
Finally, as our third example case, consider a mother that captures a cute video of her children dancing wildly in the kitchen while the radio is playing a great guitar solo ("Let's go crazy") 101 , and decide to upload it on YouTube in order to share it with friends.Again, multiple exclusive rights are involved.The music in the background of the video involves the reproduction right.Making the video available on the public on a video hosting platform is tantamount to communicating the music to the public.Moreover, due to the poor quality of the recording, the author of the background music will probably also have a claim based on his moral right of integrity.
In jurisdictions such as Belgium or France, all these works and uses would most probably be held infringing.This is not to say that these kind of transformative uses will necessary be prohibited by the copyright framework.Indeed, defining what uses fall within the scope of one of the aforementioned rights is only the first part of th inquiry.Subsequently, an exception to the rights of the author may 99 prove a valid defense and therefore legitimate the reuse.Alas, as we will see, the european framework of exceptions and limitations leave little breathing space for the transformative user.
b. Exceptions and limitations 102 potentially allowing for transformative uses Generalities.-We will focus on the main three exceptions that can provide the transformative artist with some leeway when confronted with someone's copyright, namely the exceptions for quotation, parody, and incidental uses.
Regarding the guiding principles, it is worth mentioning that the three step test introduced in EU law by article 5 (5) of the InfoSoc Directive has been further implemented by the French lawmaker (article L. 1225, § 4 CPI), but the Belgian lawmaker explicitly rejected such implementation in national law103 .
According to the CJEU exceptions must be interpreted strictly 104 .The Court however has considerably nuanced this view in a number of subsequent rulings, stating notably that the interpretation of exceptions "must also enable the effectiveness of the exception thereby established to be safeguarded and its purpose to be observed" 105 (a qualification that the French Court of cassation had also made106 ).This strict interpretation 102 In this article we will use the conventional expression "exceptions and limitations" often used by the literature, without taking position on whether there is a meaningful distinction between those terms or whether they are essentially synonyms.
must also be weighed against the increasing role played by the fundamental rights paradigm in copyright law, and in particular the requirement by the CJEU in cases Painer and Deckmyn that the application of exceptions "strike a fair balance" between "the right to freedom of expression of users" and "the interest and rights" of authors and right holders 107 .
1. Quotation EU law.-Article 5 (3) (d) of the InfoSoc Directive allows "quotations for purposes such as criticism or review, provided that they relate to a work or other subjectmatter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author's name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose" 108 .This exception is optional but every Member State either already had such an exception at the time they implemented the Directive or has introduced it since 109 .
The CJEU has given little additional information regarding the interpretation of this exception.Only in Painer did the Court address this exception by specifying that there is no need for the quoting work to be protected by copyright ( § 136).In addition, the Court gave some explanations on the impossibility to indicate the author's name (but under special circumstances).Generally it seems that indication of the source is required even when the author's name is unknown ( § § 139149).
Besides, the Advocate General interestingly suggested in her opinion in Painer that in the case of photos, full quotation (i.e.reproduction in whole) can also be a quotation within the meaning of that provision 110 .Belgian and EU law.-It is worth recalling that long before the InfoSoc Directive, the Berne Convention provided for an exception for quotation (article 10), as did Belgian and French law.For those two countries, such an exception can currently be found in article XI. 189(1) CDE and L. 1225, 3° (a) CPI respectively 111 .
Generally speaking, licit quotation supposes fulfilling specific requirements regarding the purpose, length, and form of the quotation.Moreover, the nature of the work can be relevant (in particular in France, see below).
Purpose of the quotation.-The quotation shall be made for one of the purposes specified in the law.Those can be grouped into three categories: scientific, critical and informative purposes 112 .Other purposes such as commercial 113 , advertising 114 , campaign propaganda 115 or humorous 116 do not fit with the authorized ones enshrined in the law.The same conclusion is reached for artistic or aesthetic ones.In the case discussed above regarding borrowing from James Ensor's work, the borrower invoked his right as an artist to quote others' works 117 .As mentioned, the Court held this was an unauthorized adaptation.Close reading suggests that the Court may have considered that the artistic purpose is not an authorized one.
To fit in one of the authorized purposes, quotation must remain accessory to a larger work.A glance at a few cases where this requirement was not considered satisfied may bring some light on this condition: a solfeggio method whose essential part consisted of excerpts from music sheets with only few commentaries, therefore failing the accessory requirement of the exception 118 ; a newspaper insert composed solely of excerpts from various articles, with no explanations or comments 119 ; a press overview through Google News services, reproducing parts of newspaper articles, sorted by section, without any comment or link 120 ; etc.Following a similar rationale with regard to the particular quotation exception for reporting on current events, it has been held that where the photographs are not used to show the event itself but rather as purely illustrative, then there is no lawful quotation 121 .
Length of the quotation.-Quotation in Belgium is no longer interpreted as limited to literary works 122 and it is now assumed that the exception is extended to works of all kind.This extension has been greatly helped by the implementation of the Directive and the consequent suppression of the requirement that the quotation has to be "short".French law left that "short quotation" requirement untouched.Hence, the possibility of quoting works other than literary ones is highly controversial, in particular regarding works of visual arts 123 .The transformative user is actually caught between a rock and a hard place: either the work is reproduced only in part, which is taken as an infringement of the moral right of integrity, or it is reproduced in whole and then it violates the short quotation requirement 124 .Indeed on this last point, the French Supreme Court relentlessly repeats that "reproduction in whole of a work of art, in whatever size, can't by any means be considered a short quotation" 125 .Hence, any quotation of a work of art is infringing under French copyright law.In Belgium, only full quotation remains controversial 126 .
Form of the quotation.-Quotations can only be taken from lawfully published (Belgium) or divulged (France) works.The source and the author's name shall be indicated.Contrary to the case in Belgium, in France there are no exception to the attribution requirement in the case it turns out to be impossible.Therefore in France, the lack of such mention leads necessarily to a finding of infringement which happens frequently in case law 127 .
Conclusion. -In the current state of the law, the exception for quotation will generally be of little help for allowing truly transformative uses.The "Lescure Report" commissioned by the French Government recently reached the same conclusion in the context of French law 128 .We are not aware of any relevant case in Belgium or in France where the exception has been admitted for transformative uses.
Hence, in our second example case, it is doubtful that Merpel could invoke the quotation exception as a valid defense for the thumbnails used on the IP Kat blog.Considering these cat pictures are not used for scientific, critical or informative purposes, but merely for the sake of illustrating law blog posts with pictures of cute cats, considering also that no attribution to the original authors is made, and that a reduced size would not make them "short" quotations in French law, these cats pictures would probably not constitute lawful quotations under Belgian or French law.

Parody
EU law.-The parody exception appears to provide the most important breathing space within copyright law with regard to transformative uses.But is it sufficient?
EU law provides an optional exception for the "use for the purpose of caricature, parody or pastiche" (art.5 (3) (k) InfoSoc Directive).A number of Member States have not implemented the exception, though some consider parodies are covered by freedom of expression or by general principles of law 129 .
Recently, the parody exception was the center of an important ruling by the CJEU in the Deckmyn case.In its ruling, the Court decided to harmonize the parody exception, by holding that the concept of parody was an autonomous concept of European law, along with other copyright concepts such as originality 130 or fair compensation 131 .It then went on to elaborate its meaning.The court crucially held that the fact that Article 5(3)(k) of the InfoSoc directive is an exception (and therefore subject to the strict interpretation doctrine) does not imply that its scope be restricted by conditions that do not follow from the everyday meaning of the word "parody" or from the wording of the directive 132 .Therefore, the court dismiss a number of conditions suggested by the referral court, namely that the parody "should relate to the original work itself or mention the source of the parodied work" 133 ; that it "could reasonably be attributed to a person other than the author of the original work itself"; or that "the parody should display an original character of its own, other than that of displaying noticeable differences with respect to the original parodied work".The court therefore only retain two essential characteristics of a parody: "first, to evoke an existing work while being noticeably different from it, and secondly, to constitute an expression of humour or mockery".
But the most striking lesson from the Deckmyn ruling is certainly how the Court conceived the application of the parody exception within the fundamental rights paradigm.The Court begins by recalling that freedom of expression and the public interest were among the objectives of the InfoSoc Directive, and frames parody as an exercize of freedom of expression, by noting that parody is an appropriate way to express an opinion »134 .The Court then holds that "the application, in a particular case, of the exception for parody, within the meaning of Article 5(3)(k) of Directive 2001/29, must strike a fair balance between, on the one hand, the interests and rights of persons referred to in Articles 2 and 3 of that directive, and, on the other, the freedom of expression of the user of a protected work who is relying on the exception for parody [...]" 135 .
In this Deckmyn ruling, the Court seems to go further than what it held in Painer, in that the balancing between the freedom of expression of the users and the interests of authors and right holders is not presented as a mere remedy of an extremely restrictive interpretation of an exception, but rather as the normal procedure for the application of the parody exception by lower judges.In a way, the Deckmyn ruling appears to open the door for a more flexible application of the parody exception, in that it is saying that a finding of a parody is inherently an issue of freedom of speech.
But in another sense, one could say that the court is also curtailing this opening, by including reasons to object to a finding of parody in this freedom of speech framework.This comes from the particular circumstances of the Deckmyn case, where the defendant was an activist member of the Belgian extremeright party Vlaams Belang, and the disputed parody was picturing people of colour or wearing the islamic veil receiving money from a city mayor.
In these circumstances, the Court quickly noted that "all the circumstances of the case must be taken into account", and drew attention to the fact that the principle of nondiscrimination was an important principle of EU law.The Court then adds that, were the disputed work deemed discriminatory, authors and right holders would have "a legitimate interest in ensuring that the work protected by copyright is not associated with such a message" 136 .With this last sentence, the Court seems to be venturing into Of course, faced with such repugnant defendant, it is tempting for the Court to uncover legal arguments enabling the national court to reject the finding of a parody.One could wonder, however, if the Court didn't open a Pandora's box, by including in its reasoning a number of considerations that are essentially alien to the conditions for the finding of parody.Wouldn't moral rights provisions or even legal provisions against hate speech more suited to deciding whether a potentially discriminatory message should be prohibited?
Belgian and French law.-Let us now turn to the legal regime for parodies in national law, which will undoubtedly be impacted by the Deckmyn ruling.Before the implementation of the Directive, Belgian and French law were already providing an exception for "caricature, parody and pastiche".Scholars presently agree that those three terms have to be 135 CJEU, September 4 th , 2014, Deckmyn v. Vandersteen and others, C201/13, § 27.
considered as synonymous or at the very least that formal distinguishing among them should bear no legal consequences 137 .In his opinion in the Deckmyn case, the Advocate general seemed to share this view 138 .It appears that the origin of those three words in EU law can be traced back to French law 139 , where the exception can be found since 1957, and in Belgian law since 1994, but scholars already admitted it long before140 .The Belgian Court of cassation even acknowledged (although later) that it was a valid defense under the previous law 141 .It appears nowadays in articles XI. 190 (1) 10° CDE and L. 1225, 4° CPI.It is now acknowledged that it is a valid defense against both economic and moral rights 142 .
Contrary to the InfoSoc Directive, these laws require parodies to comply with "fair practices" 143 .Due to the lack of any further definition, the void has been filled by courts, deeply influenced by some leading scholars.
French scholars traditionally distinguish between a material and a moral element of the parody, whereas Belgian scholars draw more elaborated distinctions 144 .For the sake of clarity, we will distinguish between three elements: the target of the parody, the characteristics of the parody, and the aim of the parody.We will then examine how this traditional understanding of the concept of parody is affected by the Deckmyn ruling.
The target of the parody.-It is generally held that the targeted work has to be (to a certain extent) famous at the time of the parody.Although it is not always set up as a condition as such, scholars seem to largely agree on this factor 145 .To fall within the concept of parody, an alleged parody must be recognizable as such by an observer.This will not be the case if the targeted work is largely unknown to the public.Moreover, limiting parodies to famous works strikes a certain balance between the interests of successful authors and those of the public: the ransom of success is that a famous author must to accept teasing, and therefore a cut in his copyright 146 .In any case, we are not aware of any decision finding a lawful parody in the case of an unknown work 147 .The CJEU in Deckmyn is silent on this criterion, but it could be held that it follows from the usual meaning of the term "parody".This is suggested by the Opinion of the Advocate general 148 .
The characteristics of the parody.-It has tradionally been held that the parody itself must present certain characteristics, namely being original, and limited in the amount taken.
In Belgium, contrary to France149 , a number of courts had previously required that the parody be original 150 .This condition has been explicitly dismissed by the CJEU in the Deckmyn case, and replaced by the much weaker requirement of "displaying noticeable differences with respect to the original parodied work" 151 .
Another characteristic required for a lawful parody is a limitation in the amount taken from the original work.The Belgian Court of cassation requires the parodist to take no more than necessary to achieve his goal 152 , whereas the French one requires twisting or distortion of the prior work 153 .However, the more the parody distinguishes itself from the target, the less the observer is likely to make the connection between the two.Lawful parody is therefore located in a grey area between too close (hence infringing) and too loose (hence not a parody) similarities.
In this regard, the criterion used in both countries lies in the likelihood of confusion 154 .In the Deckmyn case, the author contended before the Court of Appeal of Brussels there was a risk of confusion among the public 155 .The CJEU appears to address this concern by requiring the "displaying [of] noticeable differences" with the original work.
Another important question is left unresolved by the CJEU in Deckmyn.
National case law suggests that literal copying cannot benefit from the exception.In particular, have been held to infringe: the reproduction in a talk show of photographs onto which guests were supposed to make funny comments 156 ; the reproduction on a website of war photographs with funny captions 157 ; the reproduction on a website of pages from a magazine with addition of teasing captions 158 .Those cases were mainly concerned with reproductions in whole but in the last case, the Court critically stated that "the benefit from the parody exception is excluded in any case of reproduction in whole or in part of the prior work, the which cannot be used as such".Some courts seem however less restrictive.In particular, it has been held that the reproduction in whole and communication of a poem during a comic radio program benefit from the exception 159 .Recently, the reproduction of a photograph in a photomontage has been considered lawful as well 160 .Under peculiar circumstances, it has been held that works of art borrowing from Belgian comic books author Hergé and surrealist painter René Magritte were original parodies 161 .In a somewhat related case, the French Court of cassation considered one can lawfully parody a song using the original music in so far as the lyrics are changed 162 .
In any case, these strict findings of national case law with regards of the amount taken of the original work are a considerable impediment to the possibility of allowing remix practices, such as mashups (where multiple works are taken in their original form and seamlessly combined into a unified derivative work).
One could wonder whether the CJEU's "noticeable differences" criterion will provide more flexibility for allowing parodies even in cases involving literal copying.This suggestion might appear create a risk of allowing potential counterfeiters to masquerade unauthorized copying as parodies.However, it is important to note that even when there is a lawful parody with regard to copyright law, potential free riding still can be punished on other grounds (tort law, unfair competition) 163 .This supposes however that additional circumstances are met, that go beyond the ones with which copyright law is concerned 164 .
The aim of the parody.-The last element considered in national law is the aim of parody.A recurring question is whether the prior work shall be the target of the mockery or could be used instead as a vehicle to comment on something else, along the US distinction between parody and satire 165 .The view that the prior work cannot be used to mock a third party, has been held by some scholars 166 and a number of concurring Belgian decision 167 .However, this view has been explicitly rejected by the CJEU in its Deckmyn ruling, by holding that the concept of parody is not subject to the condition "that it should relate to the original work itself" 168 .
Therefore the Deckmyn ruling might cast doubt on the validity of the requirement that a parody must aim to criticize a work or its author, as is generally held in Belgium 169 .Courts previously held that placing comic books characters in an erotic or pornographic context 170 , using the work for advertising 171 or political 172 purposes, as raw material in a collage 173 , etc. cannot be allowed, because they do not aim to criticize the work or its author.
Recent Belgian decisions suggest a relaxing of the criticism requirement 174 .One could argue that with the Deckmyn ruling allowing the use of the original work as a vehicle to comment other topics, this criticism requirement has been largely voided.
But the CJEU retains one essential characteristic regarding the aim of a parody, namely that it must "constitute an expression of humour or mockery" 175 .Humour is the core of parody, regardless of it being smooth, black, sarcastic, dirty, nonsensical, etc.This requirement is critical in France, where scholars stress on its cultural and traditional significance 176 .Whether something is funny or not is however highly subjective.Therefore, what matters only is the intent of the parodist, and not the result of the parody 177 .In two particular cases of transformative uses where the parodist did not claim such humorous intent, Courts refused to grant the application of the parody exception 178 .
Finally, commercial aims appears to fall outside the scope of the parody under national law 179 .One French Court however held that freedom of expression object this denial of lawful parody in case the work is used solely for commercial purpose 180 .The question remains open since the CJEU did not address this issue.
Conclusion. -While the freedom of expression framework introduced by the Deckmyn case has provided a welcome relaxing of the conditions of the parody exception, it is fair to say that its scope remains quite narrow.In particular, where there is no humorous intent (and not every transformative use is intended to be funny), there is no parody.Other conditions (such as the amount taken from the original work) further limit its application and their interpretation by the courts appear to be particularly stringent in Belgium 181 as well as in France 182 .In many cases of transformative uses that do not conform with the traditional cultural practices, in the field of contemporary art or user generated content, the parody exception will most probably provide very little breathing space.
Uncertainties surrounding the exception for parody still remain substantial, and several scholars have denounced their resulting chilling effect on artistic creation183 .While the CJEU has provided an outline of harmonized EU guidelines, there are numerous issues that still await clarification.
Getting back to our first example case mentionned above, are Lichtenstein's work parodies?Unless humour is widely understood by the CJEU as to include any criticism performed by pop art (if so...), the most important requirement is not met.Moreover, one can doubt the differences are noticeable (the most important ones being the change of scale and art means, but is it enough?).In addition, the target of the parody is left unknown (comic books in general?) and potential commercial aim could play a role (the frontier between pop art and advertisement drawing is somewhat elusive).Even after Deckmyn, we still doubt these works could be deemed lawful parodies under Belgian and French law.

Incidental uses
EU law.-Some incidental reproductions may be allowed under EU copyright law.The list of article 5 (3) of the Directive contains two exceptions encompassing this idea.The first one concerns the "use of works, such as works of architecture or sculpture, made to be located permanently in public spaces" (art.5(3)(h)), whereas the second one concerns the "incidental inclusion of a work or other subjectmatter in other material" (art.5(3)(i)).
Belgian law.-Although the Belgian legislator did not implement the possibilities of exception for incidental use provided by the directive, Belgian law already provided an exception akin to the first one (but not limited to works permanently located in public spaces) that can be found nowadays in article XI. 190(1) 2° CDE.However, this exception is of little help, due to its extremely narrow scope 184 .Incidental uses are otherwise not permitted by Belgian Copyright law.
French law.-By comparison, French Courts developed an important case law conflating to some extent the two exceptions found in the InfoSoc list.This "accessory reproduction theory" (also known as "background theory"), although it is quite old, was developed greatly over the past years thanks to several decisions from the Court of cassation.
The Court first endorsed this theory considering that where there is no "communication of the original distinguishing features of a work", there is no reproduction.The Court therefore considered that an advertisement for a car where a small part of an imposing fountain could be seen in the background did not infringe copyright law 185 .This was actually an application of basic copyright principles (protection extends only to original elements).In another case, the court held that "(…) the 'representation' of a work located in a public space is lawful only when it is accessory to the 'representation' or the treatment of the main subject".It affirmed the Court of Appeal's finding that intentional appearances of sculptures "presented for themselves" in a documentary were unlawful 186 .This decision suggests that assuming it is accessory, reproduction of original elements might not trigger copyright law.
In the early 2000s, two decisions confirmed this assumption.The Court first reaffirmed a decision that the appearance of chairs in a commercial was illicit because "(…) their appearance, although succinct, was deliberate and repeated, which therefore excluded any incidental character" 187 .A contrario, this meant that reproduction of original elements could be deemed incidental (in the event it is not intentional).
In the second case, the Court confirmed a decision that the appearance of a book cover in an advertisement promoting this book was not prohibited because it is "incidental to the main topic, that is, promoting the book"; hence there was no 'representation' of the photograph printed on the cover 188 .Yet in this last case, there was evident reproduction of the original features of the photograph.
As mentioned, the first of these two last decisions suggested that where the reproduction is intentional, it is not accessory189 .But more significantly, these two decisions departed from a restrictive interpretation of the "incidental reproduction theory" limited to works located in the public space (that is, buildings, memorials, sculptures, etc.).Indeed, since they were concerned respectively with a chair and a photograph, these decisions extended the theory to works located in private places.
With the adoption of the Directive and its comprehensive list of exceptions, it appeared critical to provide a legal ground for this restriction to an author's copyright.Before, the Court justified this cut with the idea that such accessory uses did not fall within the definition of reproduction or communication under French copyright law, which from a legal point of view is evidently wrong 190 .Nevertheless, the Court reaffirmed this assertion after the adoption of the Directive but before its implementation into national law 191 .In this case, the two EU provisions mentioned at the top of this section could have provided a legal ground for this theory, but the Court instead considered incidental reproductions as located outside of the copyright scope 192 .
When implementing the Directive in 2006, the French lawmaker could have endorsed the two EU exceptions but didn't.Some scholars therefore suggested this was to put an end to the "accessory reproduction theory" 193 .Indeed, this has been the reasoning of one Court which decided that a documentary on education where pictures from a textbook appeared (displayed on the walls of the filmed classroom) constituted an infringement 194 .The Court of Appeal reversed the decision on the basis of former case law 195 .The Court of cassation confirmed the Appeal decision but on other grounds that departed from its own previous decisions, considering such accessory reproductions as an "incidental inclusion" within the meaning of article 5 (3) (i) of the InfoSoc Directive 196 .In addition, the Court stated that according to the preparatory work of the law implementing the Directive, the lawmaker intended to transpose this provision (which is completely false 197 ).
Since then, the Court of cassation specified that an "incidental inclusion of a work in other material" within meaning of the Directive has to be understood as an "accessory and unintentional 'representation' in relation to the main topic" 198 .A close reading suggests that the combination of the "incidental" and "accessory" requirements narrows down the scope of this exception beyond what was considered lawful under the Court's previous case law as well as what is foreseen by the directive 199 .This calls for more refinements.
Regarding the scope of this exception, already under previous law there was little space for the application of the exception to transformative uses (where borrowing is intentional).There are countless examples of reuse that have been held infringing for the sole reason that they were intentional: the appearance of a poster in the background of a movie 200 ; the reproduction of pieces of furniture in a report on the decoration by Karl Lagerfeld of a Chanel salon 201 ; the appearance of a table runner in commercials for chicken 202 ; the appearance of lamps on photographs of an hotel's interior (the lamps were part of its decoration) 203 ; a model wearing Louis Vuitton heels in an ad for an H&M dress 204 ; a model wearing jewelry in an add for dutyfree shops in Paris airports 205 ; etc.
Conclusion under French Law.Since the latest decision of the Court of cassation, we are aware of two decisions, one concuring 206 , the other opposing 207 .This shows how fuzzy the limits of this exception for incidental uses are under French law, which could cause a chilling effect among users.Case law suggests that this exception gives little wiggle room to transformative users.Significantly, in its assessment of the status of transformative uses under French law, the aforementioned Lescure Report didn't even mention this exception 208 .French law seems closer to "de minimum minimorum" than "de minimis".
Hence, in our third case mentionned above, it is doubtful that the music in the background of the dancing children video would be considered "accessory" or "incidental" according to French law.It is certainly not "accessory" to the main topic (since the music is as important to the video as the dancing children), nor "incidental", in the meaning of unintentional (since the background music is the reason why the children are dancing).It is fair to say that this would not constitute a lawful incidental use under French law.

CONCLUSION
Our overview of positive law at the EU level and in the case of Belgian and French national law clearly shows that our copyright laws are particularly inhospitable to transformative uses.We saw that the multitude of broadly defined exclusive rights constitutes a tremendous hurdles for creators of transformative works, as they can most of the time be found to infringe at least some of them.We also saw that the European framework of exhaustively enumerated and strictly interpreted exceptions and limitations was way too narrow to compensate for the far reach of exclusive rights.
This issue of transformative uses has largely been a neglected one in copyright law.Not only does it appear that the spaces for many emerging practices are lacking, but even the more traditional practices of quotation or parodies are often excessively difficult to exercise without incurring legal hazards.This critical situation cannot be left unchanged.Imposing all the burden of legal uncertainty on authors of transformative works and confining them in a legal gray area hardly seems like a satisfying solution.
One can wonder whether European lawyers are fully aware of how critical the situation is.If we compare copyright laws from various jurisdictions on the issue of flexibility and freedom to create, current EU laws are clearly among the most restrictive.For example, looking at recent findings of fair uses in the US case law 209 , one could very often reach the conclusion that the same facts would be held as infringing under Belgian, French and EU law.
It is appropriate to remind the lucid observation of Advocate General Colomer in its opinion in the trademark case Arsenal Football Club v. Matthew Reed: discussing important works such as Campbell's Soup Cans by Andy Warhol, he remarked that "[a] radical conception of the scope of the rights of the proprietor of the trademark could have deprived contemporary art of some eminently expressive pictures, an important manifestation of pop art" 210 .
Similarly, one can fear that radical conception of the rights of the copyright owner already deprived society from great works of art.Or that it would deprive many individuals of the freedom to create and to participate to cultural life, at the very moment when, due to the digital revolution, the means of creation and dissemination of information have never been as accessible.
There is no good reason to passively accept this situation.In our 209
i. Economic Rights 1.Right of reproduction EU law.-First and foremost, transformative uses touch on the right of reproduction.The scope of the right of reproduction in EU law is very wide, since it covers any "direct or indirect, temporary or permanent reproduction of a work by any means and in any form, in whole or in part" (article 2 InfoSoc Directive).In addition, the CJEU, consistently with the stated objective of ensuring legal certainty within the internal market, reads recital 21 of the directive as requiring that the acts covered by the right of reproduction be construed broadly 23 .16 See e.g.Court of First Instance of Brussels, June 17, 2002, A&M, 2004, p. 252 ("Chaisard" to indicate a wheelchair user).17 See e.g.Court of Appeal of Antwerp, June 25, 2007, A&M, 2007, p. 461 ("Sterrenplukkers", roughly translated as "Stars Fisherman") ; Court of Appeal of Versailles, Jauary 11, 2001, R.I.D.A., 2002/191, p. 280 ("Angélique"); Court of Appeal of Paris, June 19, 2009, P.I., 2009, p. 365, obs.J.M. BRUGUIÈRE ("L'empreinte de l'ange", roughly translated as "The Stamp of the Angel"); 18 See e.g.Court of Appeal of Antwerp, June 29, 2009, A&M, 2010, p. 187 ("Maten, Makkers, Maes"); Court of Appeal of Versailles, May 27, 2003, R.I.D.A., 2005 ("Donnez du goût à votre communication", roughly translated as "Give some taste to your message") 19 Commercial Court of Paris, February 5, 2010, P.I., 2010, p. 846, obs.J.M.
it62.Others have claimed that the absence of implementation of a distribution right in French law does not matter, as that right stems from international law regardless 63 .The exhaustion rule, on the other hand, has been implemented in French copyright law (article L. 12231 CPI).Questions regarding the scope of the distribution right in EU law receive a broadly identical treatment in Belgian and French law.
and French law.-Implementation of the distribution right and the exhaustion rule in Belgium follows closely the wording of the directive (article XI.165(1), § § 56 CDE).In France, there is no explicit distribution right but some have argued that the right of destination may 59 CJEU, Art & Allposters International, op.cit., para 43.60 CJEU, Art & Allposters International, op.cit., para 46.61In his opinion, the Advocate General had distinguished between the facts of that case, that were not leading to a finding of exhaustion, and the hypothesis of a 'collage' which would have been protected under the exhaustion rule.This distinction seems to be based on the likelihood of confusion with the original word (in consideration of its medium), see Opinion of Advocate General P Cruz Villalon, Art & Allposters International, op.cit., paras 5460.However, nothing in the decision of the Court support such a distinction.substitute years post mortem auctoris.
modifications.-Examples of material modifications to a work that have been found to infringe include: poor reproductions of a work 85 ; modification of the shape of a logo 86 ; showing a movie using a video cassette instead of the 35 mm film (which modifies the rendering of the movie) 87 ; cropping, deepetching, shortening or in some other way For an other example, see the Kate Moss tattoo case (supra note 48).On the contrary, where the reworking concerns the work itself, see supra note 61.