Sébastien Canevet and Sylvia Preuss-Laussinotte in X and Y v. France: The Case for a Legal Precedent at the Amphithéâtre de morphologie de l'Ecole Nationale Supérieure des Beaux-Arts in Paris, France, 7 December 2007. Performance by Patrick Bernier and Olive Martin. Photograph: Marc Domage
Artists Patrick Bernier and Olive Martin's ongoing performance project X. c/ Préfet de…, Plaidoirie pour une jurisprudence (X and Y v. France: The Case for a Legal Precedent, 2007-ongoing), juxtaposes the legal status of an author versus that of an undocumented immigrant (sans papiers) facing deportation in France. As artists concerned with issues of migration, they recognised an irony in the rapid expansion of copyright and intellectual property law in the digital era, on the one hand, and the diminishing rights of immigrants and freedom of movement under French and EU law, on the other. 'X' is a character invented by the artists, a stand-in for individuals facing deportation orders in French and European courts. In the performance staged by Bernier and Martin, he or she is not only an illegal immigrant but also an author of a site-specific immaterial work, a shift in status that would accord X different rights and possibly allow them to stay in the country. The legal plea to allow X to stay within France is argued by practicing lawyers (Sylvia Preuss-Laussinotte and Sébastien Canevet) to an imaginary judge, in whose place the audience sits. This transposition implicates the audience in the routine process of entry and expulsion that takes place everyday at the borders of today's increasingly migrant societies. The project was originally developed under the title Projet pour une jurisprudence during the artists' residence at Les Laboratoires d'Aubervilliers in 2007. Since that time, iterations of the project have been presented in different art venues in France, Belgium, and Austria.
Bernier and Martin have worked collaboratively for over a decade, but their separate projects also develop the themes explored in X. c/Préfet de…: Bernier's work deals with issues of hospitality and hosting, both virtual and real, and his projects have taken the forms of chat rooms, collaborations with storytellers, curatorial interventions, and writing. Martin's projects in photography, film and installation have dealt with the porosity of identity in the context of Giorgio Agamben's notion of 'whatever singularity.'1 In July, writer Audrey Chan interviewed Bernier and Martin about their practice at their home in Nantes. The interview was conducted in English.
AUDREY CHAN: What takes place in a performance of Plaidoirie pour une jurisprudence?
OLIVE MARTIN: It's very simple: two lawyers appear before an audience on a bare stage. As people take their seats, the lawyers put on their black robes. They are in the administrative court responsible for cases involving foreigners and deportation. Sylvia Preuss-Laussinotte, a lawyer defending immigrants' rights, begins her plea on behalf of her client, X, addressing the audience as she would a judge in a tribunal. After presenting her case, she introduces Sébastien Canevet, a specialist in authors' rights, and explains to the judge that they consider their client not as a foreigner but as an author. Sébastien and Sylvia proceed to give legal arguments to the audience as to why their client should be allowed to stay in France. So the client X is a model, and in fact, X could be anyone.
AC: When you say a person is an author, the implication is that they have produced a work. So when the lawyers defend the immigrant as an author, does the question arise, 'What is X an author of?'
OM: We made a case where 'X' is the author of an immaterial, site-specific work that cannot exist if this person is sent back to his or her country. We are also making the argument that authors' rights should protect the author and not just the work. So the two lawyers, Sylvia and Sébastien, bring in cases where immaterial works were protected and discussed. They invite the judge - the audience - to make a new legal precedent.
PATRICK BERNIER: When we present the performance outside of France, we address the plea to an imaginary judge of the European court, rather than the French court. So the title of the performance is no longer X v. the Préfet, but X and Y - two co-authors - v. France.2 And the arguments are based on the 10th article in the European Convention on Human Rights (1950) on the freedom of expression and artistic liberty.
AC: Do the lawyers present their arguments spontaneously or from a script?
OM: Sylvia usually writes her plea, but adapts it to new political situations as they arise. Sébastien never prepares a written text, only the structure of his argument and some notes. Before the performance, we distribute to each audience member a thirty-page document containing all the documents a lawyer typically gives to a judge to follow the case he is defending. You can follow along during the performance as the lawyers will say, 'On page 1…'
PB: We give the plea and the sources of the plea to the audience. It's connected to open source theory.
AC: How did you come to collaborate with Sylvia and Sébastien?
OM: We wanted to work with two specialists to give a professional legal base to our work. In fact, they were both already activists within their own field. But we didn't know they would be as involved as they finally were, as performers. In our first discussion, Sylvia told us that the judge should be a creator. Lawyers bring in the tools for the judge to be creative.
AC: That's interesting because in the US, the term 'activist' is often used to discredit a judge, suggesting that the judge is interpreting the law to serve a personal or political bias. In the process of developing a new legal precedent, a rule or principle is established through a court ruling that can later be applied to subsequent cases with similar facts.3 In common law systems, such as in the United Kingdom and the United States, the law is made by judges and evolves over time on a case-by-case basis through legal precedent. In contrast, France's civil law system is comprised of codes (e.g. code de la proprieté intellectuelle) originating in legislation. In both cases, previous court decisions are the building material for a lawyer's argument. In the French context, a judge can decide whether or not the argument is based on a sound interpretation and application of civil code. If not, a judge on a later case can dismiss the previous ruling. You need to refer to the past in order to move forward.
OM: It's a passionate and complicated question of interpretation. A case can be interpreted and applied in many ways, so you have to be clever and thoughtful enough to match one case with another to make the argument that you want. As in art, when you put two things together, they say something different.
AC: When the lawyers plea to the audience directly, it calls attention to the theatricality of the courtroom and the fact that lawyers have to perform, like actors. It's a kind of performance of persuasion.
OM: We liked the language and the theatricality of the courts, and we knew that this was the form that we wanted to play with. For example, lawyers can speak for their client in the first person. They say, 'I did not kill.' There's a kind of confusion of identities between the lawyer and his or her client. Sylvia and Sébastien were very surprised when we told them, 'Well, we just want you to plea as you do in the court.' They said, 'But is this really art?
PB: They wanted something more theatrical…
OM: …with lighting, with a set, something very organised. Whereas we wanted something more documentary and direct.
AC: Do you plan to stage the performance in courthouses too?
OM: Not in courthouses, not yet, or maybe never. Courthouses would be the real site of the work, but it's not our goal. The first goal was to set a legal precedent. While it may not be a realistic goal, we wish that it could happen.
AC: Perhaps establishing the new precedent isn't the immediate goal, but your work projects towards what currently seems impossible. In that way, you're infecting legality with an artist's perspective.
OM: We know that the project can change the way people see laws regarding foreigners, artists and art, as well as authors' rights. That, as a civilian, you can influence the law, and you can speak and act on behalf of foreigners, who are not simply people who crossed the French border just to eat your bread. They are your neighbours and their kids are playing in the street with yours.
PB: All court decisions against foreigners are taken in the name of the French people. Our wish is that people go to their courthouses to see what happens in their name, that they ask questions and say that they don't agree with the decisions taken.
OM: In the beginning, we had a more activist position. Now we don't give efficiency the same importance as before.
PB: Now we know it takes a long time to affect the mentality of a judge. To change this mentality, we have to make ideas circulate. Our project can serve as a template for action.
AC: What led you to work on this project?
PB: When Olive and I arrived in Nantes in 2001, my work concerned hospitality, freedom of movement and the borders. I began working with a local association called GASPROM [Groupement Accueil Service Promotion du Travailleur Immigré], who agitate on behalf of immigrants. For about three years, I worked there as a volunteer and activist, sorting post and writing official letters for immigrants requesting asylum from the French government. The letter writing was my informal training in foreigners' rights. People told me their causes for leaving their country for France. Little by little, I began to understand how I could combine these two activities, my art practice and my activist practice.
OM: GASPROM was set up in the 1960s to help the first wave of migrant workers in France, who did not have many rights and were not protected under the law. The association helped them to find a place to live and gave them access to health care. In the 70s, during the first economic crisis, France shut its borders and wanted the foreign workers to go back home. But they were already living in France, and wanted their families to join them. Since that time, the face of migration has changed.
AC: How did you arrive at a relationship between authorship and migration?
OM: Through Patrick's work with GASPROM, we learned that there are more and more laws that regulate displacement, travel and borders. And as artists we found that there are also an increasing number of laws that regulate cultural and artistic production.
AC: So you're proposing that just as citizenship can be achieved through the legal process, everyone has the potential to be an author protected before the law. Authors' rights [les droits d'auteur] in French law are typically framed as protecting the creator, but they also limit access to artwork by limiting its redistribution. What application of authors' rights are you referring to within your project?
PB: In the Plaidoirie… we are trying to return to an idea dating from the French Revolution, developed by Abbé Sieyès and [Pierre] Beaumarchais: that an author's rights are meant to protect an author from a producer, such as a theatrical producer or record label. Beaumarchais essentially said, 'Well, we need money to live, we need money to make our work. We need you to recognize intellectual ownership.' Abbé Sieyès was also concerned with making a work available to the public quickly. He proposed that an artwork should be protected for five years, after which time it would become domaine public [public domain]. Now the length of protection is seventy years after the death of an author.
OM: There's a difference between the Anglo-Saxon method of copyright and authors' rights in French law.
AC: In contrast to British and American copyright law, which privileges the publisher or editor of a work, French law recognizes les droits d'auteur [rights of the author]. In fact, in France, a work can only be protected if it is an œuvre de l'esprit [a work of the mind] that has emanated from an author's intellect.
PB: Both the French and Anglo-American systems limit the circulation of artwork, but the current evolution of these rights in the French context increasingly protects the interests of producers and companies to help them make a profit.
OM: This year in France, President Sarkozy tried to pass the HADOPI law.4 Besides protecting profits, there is the basic question of 'What is protection, really?' The idea of an artwork is that you share it, and it works if it's heard, seen and shared. For the French borders, it's a similar question. We want to protect, but protect what? At that point, protection just makes you closed off.
In The Coming Community (1993), Giorgio Agamben defines 'whatever singularity' as that which has an 'inessential commonality, a solidarity that in no way concerns an essence'. His notion of 'whatever' is based upon the original Latin definition of 'being such that it always matters'. See G. Agamben, The Coming Community (trans. Michael Hardt), Minneapolis: University of Minnesota Press, 2003.↑
For more information about the project, please visit the website: http://www.plaidoiriepourunejurisprudence.net/spip.php?article12↑
The form of 'precedent' most applicable to Bernier and Martin's project is the 'landmark decision', which establishes an important legal principle or change in the law on a particular issue (e.g. the rights of illegal immigrants).↑
'HADOPI Law' or 'Creation and Internet Law' is a nickname referring to la loi favorisant la diffusion et la protection de la création sur Internet (law favoring the diffusion and protection of creation on the Internet). HADOPI is an acronym for the French government agency, Haute Autorité pour la Diffusion des Œuvres et la Protection des Droits sur Internet (High Authority of Diffusion of the Art Works and Protection of the (Copy)Rights on Internet) established by the bill. The agency is vested with police power to punish violations of copyright law by Internet users under a 'three strikes' punitive arrangement. After protracted debate and public protest, the bill was first rejected (9 April 2009) and then accepted (12 May 2009) by the French National Assembly and finally the French Senate (13 May 2009). Most recently, the Conseil Constitutionnel (Constitutional Council), France's highest constitutional authority, ruled on 10 June 2009 that the HADOPI law is unconstitutional on the grounds that 'the Internet is a component of the freedom of expression' and only a judge can impose sanctions under the law.↑