DECISI ON • COPYRIGHT L AW

Argentina

Comment on ‘‘Ediciones de la Flor v. FontanarrosaFranco’’

Copyright Act, No. 11.723; Constitution of Argentina, Art. 75,subparagraph 22; American Convention on Human Rights ‘‘Pactof San Jose’’, Art. 21; International Covenant on Economic,Social and Cultural Rights, Art. 15 – Ediciones de la FlorSA v. Fontanarrosa Franco

Maximiliano MarzettiPublished online: 16 October 2013

� 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the ICESCR to justify the community’s right to access unpublished works.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

This comment is related to the Decision ‘‘Ediciones de la Flor v. Fontanarrosa Franco’’ doi:10.1007/

s40319-013-0115-5.

M. Marzetti (&)

LL.M (Turin); EMLE (Hamburg); Ph.D cand. (Rotterdam); professor of Intellectual Property Law

and Economics at the LLM/MSC in Intellectual Property at FLACSO – Argentina

Av. Santa Fe 2630 6A, C1425BGO Ciudad Autonoma de Buenos Aires, Argentina

e-mail: maxmarzetti@gmail.com

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IIC (2013) 44:854–855

DOI 10.1007/s40319-013-0116-4

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.

‘‘Ediciones de la Flor v. Fontanarrosa Franco’’ 855

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