France jurisdiction report: Copyright in the digital age

The Directive of the European Parliament and of the Council on Copyright in the Digital Single Market was adopted on March 26, 2019 by the European Parliament. It provides general rules for the protection and the conditions of use of works protected by copyright in the fields of research, education and the conservation of cultural heritage.

But the purpose of this directive is also to protect authors’ rights in the digital world and it provides to that respect, rules in order to improve the contractual relationship between authors, performers, producers, publishers and online content-sharing platforms.

Exceptions and limitations

Authors enjoy on their work, by the mere fact of its creation, an exclusive right of IP which is opposable to all. This right includes intellectual and moral attributes as well as patrimonial rights. While authors enjoy significant protection and monopoly, there are limitations and exceptions to these.

These same limitations and exceptions will continue to apply. Content in the public domain or shared prior to the adoption of the Directive, without the permission of the author, will remain so.

Cited as exceptions or limitations are citation, criticism, review and use for purposes of caricature, parody or pastiche (article 17.7).

Article 17.1 of the Directive provides that an online content-sharing service provider performs an act of communication to the public, or an act of making available to the public, when it gives the public access to copyright-protected works or other protected subject matter uploaded by its users.

"It will bring significant changes to platforms and hosting companies’ practices."

As a result, online content-sharing service providers including platforms shall therefore obtain an authorisation from the right holders, for which the Directive encourages the implementation of licensing agreements.

Obligation to control content

The Directive puts an end to the a priori irresponsibility of hosting service providers with regard to hosted content. On the contrary, this is an a priori responsibility that is provided by article 17.3 with regard not only to the act of communication to the public of works or other protected objects, but also to the act of making them available. 

Today, this hosting service provider is defined in France by the law of June 21, 2004 only as a technical intermediary. As such, it benefits from a limited liability regime and its responsibility is implemented only if it is warned that it is hosting illegal content, and it does not suspend its broadcast quickly.

From now, the hosting company will also be held responsible for the broadcast of unauthorised content, or if it cannot prove that it has implemented its best efforts to obtain an authorisation of use, or on the contrary to ensure the unavailability of content, to block access to it and prevent it from being uploaded in the future.

An adjustment of these conditions is nevertheless planned for recent suppliers which have been in operation for less than three years and which have an annual turnover of less than €10 million (article 17.6).

Appropriate remuneration

Remuneration of authors and performers must be “appropriate and proportionate to the actual or potential economic value of the rights granted under licence or transferred in the circumstances of the case, such as market practice or the actual exploitation of the work ...” (recital 73).

In application of article 18, EU member states must ensure that this principle is implemented (article 18.1). To do so, they are free to use the various mechanisms that can satisfy the principle of freedom of contract and the right balance of rights and interests (article 18.2). An obligation of transparency with regard to authors is provided for in article 19, while articles 20, 21 and 22 provide for mechanisms for adjusting contracts, an extrajudicial procedure for resolving disputes and a right of withdrawal in case of non-exploitation of the work.

The Directive specifies in article 23 that articles 18 to 22 do not apply to computer programs within the meaning of article 2 of Directive 2009/24 on the authorship of the program.

The Directive is not yet published and a period of two years is granted for its implementation in national law. It will bring significant changes to platforms and hosting companies’ practices and will oblige them to implement new procedures for the control of their new responsibilities.

It will also give authors new tools to have their rights respected and to fight against counterfeits, notably because they will be able to rely on the preventive action of the major actors of the digital world.

Aurélia Marie is a partner at Cabinet Beau de Loménie. She can be contacted at: amarie@bdl-ip.com