Academic journal article Contemporary Readings in Law and Social Justice

The Contract of Audiovisual Adaptation from the Perspective of the Civil Code in Force

Academic journal article Contemporary Readings in Law and Social Justice

The Contract of Audiovisual Adaptation from the Perspective of the Civil Code in Force

Article excerpt

ABSTRACT.

The study of the contract of audiovisual adaptation is necessary for multiple reasons. Firstly, because no contract of copyright transfer agreement, which includes also the contract of audiovisual adaptation, has its own regulation in the Civil Code (Law no. 287/2009). Consequently, the current article deals also with the problem of the incidence of the norms of common law on the analyzed contract. Secondly, the research was also determined by the fact that in the Law no. 8/1996, regarding the copyrights and the related rights, to this type of contract was allocated a laconic regulation, i.e. only in a single article of law. Thirdly, the discussion of this topic was necessary as the norms dedicated to the contract of audiovisual adaptation included in the special Law are not clearly, fluently and comprehensively enough formulated, presenting quite a few lacunae and even imprecision, which the author highlighted, sometimes under the form of de lege ferenda proposals.

Keywords: preexistent work, audiovisual work, audiovisual adaptation, assignor author, producer, pan and scan, letterboxing

1. Relevant provisions, the legal nature of the right of audiovisual adaptation and the definition of the contract of audiovisual adaptation

Chapter VIII ("Cinematographic works and other audiovisual works") of Part II ("Special provisions") of the Law no. 8/1996 regarding the copyright and the related rights1, dedicated to the special regulation of the audiovisual works, deals alos with the right and the contract of audiovisual adaptation (art. 68 of Law).

Thus, according to art. 68 para.(l) of the Law no. 8/19962, the right to audiovisual adaptation is the exclusive right of the copyright owner on a preexistent work to transform it or include it in an audiovisual work.

In the specialized literature,3 it was stated that the legal definition of the right of audiovisual adaptation can be subject to criticism. It was considered that the right to transform or to include a literary, artistic or scientific work in an audiovisual work, as it is defined by the lawmaker, would lead to the idea that it belongs only to the author of the preexistent work and that the real intention of the lawmaker would have been different.

Despite the fact that many texts of law hide enough imprécisions, we appreciate that this time the definition of the right of audiovisual adaptation is not equivocal and that the lawmaker defines correctly this right.

The right of audiovisual adaptation belongs to the author of the preexistent work and not to another person, to whom the author agrees to entrust the audiovisual adaptation of his/her work.

First of all, we should emphasize the idea that the right to transform or to include a preexistent work in an audiovisual work is a patrimonial copyright according to the provisions of art. 13 lett.i),4 reported to art. 16 of the Law.5 The analysis of the provisions of art. 12-22 of the Law reveals the feet that the copyright owner has two patrimonial rights: the right to use the work and the resale right {droit de suite). Undoubtedly, the resale right cannot be associated with the right of audiovisual adaptation.6

It still remains open the question if the right of audiovisual adaptation is a patrimonial right of using the work by his/her author. Certainly the answer is affirmative and covers two aspects.

On the one hand, it is about the capacity of the owner of a literary, artistic or scientific work to create himself/herself a derivative work, and on the other hand it is about his/her capacity to authorize or to forbid another person to produce a derivative work.

But, according to art. 16 of the Law, the content of the right to produce derivative works includes also the modality of "adaptation," as well as "any other transformation of a preexistent work," provided that the derivative work represents an intellectual creation.

In other words, the right of audiovisual adaptation includes both the possibility of the owner of a preexistent work to produce and audiovisual work, and his/her right to authorize or forbid another person to transform or include that work in an audiovisual work. …

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