An alteration of a work of architecture that does not infringe the rights of the author can be carried out without their prior consent

La modification d'une œuvre architecturale qui ne porte pas atteinte aux droits de son auteur, peut se faire sans son accord préalable

The very essence of copyright is to confer on the author of an original work an exclusive, intangible property right enforceable against all. Pursuant to this exclusive right, no infringement of the work, of any nature whatsoever, can be carried out without the prior consent of the author. The right to the respect of the integrity of the work enshrined in article L.121-1 of the Intellectual Property Code imposes that a work that expresses the personality of the author cannot in theory be subject to a material alteration without the express agreement of the author. Through a judgment on 20 December 2017, the Supreme Court of Appeal has just established a limit to this exclusive right of the author: an alteration of a work of architecture that does not infringe the rights of the author can be carried out without their consent. An original architectural work can be protected in respect of copyright as any other literary or artistic work would be. However, and contrary to a purely aesthetic work, a work of architecture has a functional purpose which results from the fact that a building, in addition to being original, may constitute a place of residence, work or access to culture. In the case at hand, the architectural work intended to house the collections of the “Musée d’Arles antique” had been produced by an architect on behalf of a département, which, without the consent of the architect, proceeded to carry out extension works to the building in order to exhibit a Gallo-Roman trading ship.

The functional purpose of the work of architecture means the right to the respect of architecture must be reconciled with the right of the owner of the work. The method applied by the judges is that of the control of proportionality: a limit to the fundamental right (the right of the author) must be accepted but in a way that is justified and proportionate. The Supreme Court of Appeal here validated the reasoning of the 7 January 2016 ruling by the Court of Appeal of Aix-en-Provence which rejected the architect’s claims. To preserve the balance between the prerogatives of author and owner of the work of architecture, the alterations must not exceed what is strictly necessary for the adaptation of the work to new needs and must not be disproportionate with respect to the purpose. In the case at hand, the discovery of the boat and its cargo, dating back to ancient Roman times, declared a “national treasure”, and the necessity of showing both in the museum in question, characterise the existence of a new need which, to be satisfied, required the building of an extension, because the unity attached to the museum excluded the construction of a separate building. The extension produced altered the original construction but made use of the original colours, the white walls and blue facades, and it was not established that it spoilt the overall harmony of the work.

The right to the respect of the work is subject to a variable geometry application depending on the purpose of said work. In terms of a work of architecture, the architect cannot impose absolute intangibility of the premises they produce and must accept infringements of their rights when these are justified and proportionate.