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Tuesday, 6 February 2018

The Céline affair: what moral rights can and can’t do…even in France

The controversy over Céline's
work is alive and well...
We sometimes hear that when debates about literature hit a country’s headlines on a regular basis, its culture stands in good health. Last month it is the name of one of France’s most controversial writers, Louis-Ferdinand Céline, recently aroused the national press (here).  

Controversy over Céline resurfaced after the national publishing house Gallimard announced the publication of a new edition of the author’s most divisive works: ‘Trifles for a Massacre’ (1937), ‘School for Corpses’ (1938), Mea Culpa (1936) and ‘The Fine Mess’ (1941) (here). The four publications are known as Céline’s anti-Semitic essays written both before and during Nazi occupation in France. At the author’s request, these essays were not re-published when they ultimately went out of stock. However, they remained available for purchase in second-hand book stores, and later, online. They were also re-published and re-stocked in Canada, after their copyright expired there (here), but not in France – this pursuant to the author’s wishes.

We need to wait until 2031 for the works to fall into the public domain, that is, 70 years after the death of the author in 1961… or will we?  The issue is that, as part of the French Intellectual Property Code, the moral right doctrine confers on the author the right to withdraw one’s work after its publication (Article 121-4, French IPC here). Thus, whereas most common-law jurisdictions only provide for a right of first publication, France also grants a moral right of withdrawal. It reads almost like a right to artistic repentance for artists who find their work to be damaging to their reputation later in life. Equally important is that moral rights are perpetual under France law, and are passed on to the author’s heirs.

Céline's controversial publications
 are freely available in Canada
Given Céline’s clear intentions about the work being kept off the shelves even during his lifetime, why would Gallimard even dare contravening the author’s (legally protected) wishes under  moral rights ? The answer--because Céline’s widow said so. Aged 105, Lucette Almanzor, having presumably inherited the IP rights the author’s works, gave consent to the re-publication of the work. Some newspapers suggested that the wife’s decision to contravene Céline’s wishes might have been motivated by the fact that she now requires expensive care due to her age.

The original editions of Céline's anti-Semitic essays
Cases where the ‘sanctity’ of literature, so generously protected by authors’ moral rights in France, is possibly  at odds  with  one’s  more “mundane”  daily needs  (or the failures of the welfare state), are rare. What is the IP lesson here? As generous as the French moral right doctrine may be, it is only as strong as the desire of an author’s heirs to respect their late relative’s wishes. Whilst moral right jurisprudence is filled with exotic cases where heirs have ferociously defended their celebrated ancestor’s cultural heritage [think the Beckett cases here or the 1994 Asphalt Jungle case here], the Céline affair be a reminder that moral rights protection has one, rather significant, limitation: fickle descendants. In Céline’s case, the question is now moot as the public uproar against publication of the works convinced Gallimard to abandon its project of re-publication.

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