Comment on “Ediciones de la Flor v. Fontanarrosa Franco”

Comment on ‘‘Ediciones de la Flor v. Fontanarrosa Franco’’ Copyright Act, No. 11.723; Constitution of Argentina, Art. 75, subparagraph 22; American Convention on Human Rights ‘‘Pact of San Jose’’, Art. 21; International Covenant on Economic, Social and Cultural Rights, Art. 15 – Ediciones de la Flor SA v. Fontanarrosa Franco Maximiliano Marzetti Max Planck Institute for Intellectual Property and Competition Law, Munich 2013

The case sub-analysis paints a complex and, no doubt, controversial picture of the limits placed on the exercise of moral rights by co-heirs. Incidentally, the Court’s decision to resort to international human rights treaties by claiming society’s interest in solving a dispute between private parties is intriguing, to say the least. The Argentine Magna Charta, after the constitutional reform of 1994, has incorporated in its Art. 75 subparagraph 22 two human right declarations and nine international conventions, inter alia the Pact of San Jose and the ICESCR, all of them with constitutional hierarchy and thus placed above domestic laws. Such internationalization of domestic law may prove more problematic than the constitutional reformers could have envisioned. The principles and rules contained in these constitutionalized human rights instruments have direct applicability in Argentina. The selection by the adjudicator of one or another human rights provision may lead to uncertain judicial outcomes in the absence of an explicit interpretative rule. For instance, in the commented case the Judge chose Art. 15 subparagraph 1(a) of the ICESCR to justify the community’s right to access unpublished works. This argument would end up benefiting the publisher and the co-heir who did sign the publishing agreement, both parties to the case, whereas the community (as such) had no legal standing in it. But Art. 15 subparagraph 1(c) of the ICESCR also recognizes the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. Had the Judge chosen Art. 15 subparagraph 1(c) instead of 1(a) of the ICESCR, the decision may have been different. The case also illustrates the incompleteness of the Argentine Copyright Act, which dates back to 1933. The Act contains no provision on how to solve a dispute between multiple copyright heirs with divergent opinions in relation to whether or note to publish unpublished works. Comparative law provides some ex lege solutions. The Italian Copyright Act No. 633 of 22 April 1941, Art. 24 subparagraph 4, in relation to heirs and legatee’s right to publish unpublished works, states that in case of disagreement between them the Court would decide after hearing the Public Prosecutor. Last but not least, the Judge referred to the doctrine of abuse of property rights and its possible extension to comprise intellectual property rights, which is novel in Argentine case law.