A Brief on French Copyright Law
Copyright law aims to protect authors, namely those who create an original and tangible work, in ensuring they are granted exclusive rights over the financial gains of their work. Laws governing copyright are part of a larger body of laws called intellectual property, which also encompass laws relating to trademarks, patents and design. The concept of copyright may have originated from the Venetian Statute No. 1673 ("Statuto ve netiano") of 1474, however it was not until the latter part of the 18th century that the majority of modern day copyright laws emerged. At this time, the author’s rights system developed in several Western European countries including France and the United Kingdom. With the development of technology and trade throughout Europe, countries began to accept the idea of protecting the rights of writers, so that their works were not copied or used by others without their consent, giving rise to the first major international treaty. On September 9, 1886, the Convention for the Protection of Literary and Artistic Works signed in Berne established the foundation for much of the world’s copyright law. In 1887, France was the first country to adopt the Convention into its national law (it was ratified in other countries several years later). In the field of intellectual property, France was one of the most innovative countries. In 1791, the Constitution of Year III protected the rights of authors long before the United States did. Six years later, a book published in France carried the following notice: Liberal conceptions regarding the protection of authors’ rights evolved in the succeeding decades with amendments made to the Royal Ordinance of 3rd May 1846 and the Law of 14th June 1866. Under the Ordonnance, the term of protection was given as the natural life of the author and the right to reproduce the work belonged to the author. This term was extended to seventy years under the Law of 14th June 1866, making it the longest term of protection among the time. In 1957, the first modern law on copyright and neighbouring rights was passed and in 1985 this was amended to conform with the international treaties, namely the GATT agreement of 15th April 1994 and also to accommodate the French ratification of the International Convention of the Protection of Performers, Producers of Phonograms and of Broadcasting Organizations, 1971 ("Rome Convention") . This law was reformed again in 1985, 1987, 1992 and in January 2006. The latest reform, Bill No 2006-961 of 1st August 2006 on the Law of the Economy of Books in the Digital Age provides for any work made in the course of an employment relationship to become the intellectual property of the employer. The objective of French IP law is to: It is comprised mainly of Law No. 57-298 of 11 July 1957 on Copyright and Compositions and Regulations Connected to Copyright (the "Act") and the Civil Code which defines copyright, neighbouring rights and database rights. Copyright and neighbouring rights are acquired without formality and by operation of law and do not require registration and a work is protected if it is original and is reduced to a tangible medium. Copyright in works of art, music, literature, films and broadcasts vest in the creator of a work. Copyright in cinematographic works results in two "works": one in the name of the co-authors and the other in the name of the producer. Copyright in cinematographic works entitles the author to control and protect the use of the following economic rights: A publisher has the right to a fair remuneration for the work which is the object of the contract of assignment. These moral and economic rights of authors including those relating to music or films are protected under the Act and the Civil Code. The Act also sets out the neighbouring rights of performers, phonogram and film producers and broadcasting organisations. Under the Act, articles L211-1 to 211-7, information technology systems and telecom networks are protected by the State and the producer. The Law No. 98-536 of 1 st July 1998 on the use of databases gives exclusive rights to a producer of a database to stock data in the database and also to restrain others from the extraction or reutilization of all or a substantial part of that database. The Act also gives protection to the technology used to computerise the data. The Act does not confer any protection to the content of the database.
Protected Works
French copyright law protects a vast array of creative outputs, ranging from novels and plays, to sculptures, music, and computer software. Under Article L. 112-1 of the French Code of Intellectual Property (FCP), "the right to obtain an author’s consent concerning the reproduction and communication of any protected work belongs to the author of the work, unless provided otherwise by this Book." Reproduction, in this context, is understood as being either direct or indirect, including mechanical or electronic copy, photography, audio or video recording, and translation into another language or medium.
Any works created by a physical or legal individual (under French Law, including sole proprietorships) will be subject to French copyright law as long as they are original (i.e., not a copy of someone else or of prior works in existence) and "tangible" (i.e., with a certain degree of fixation, even if temporary). Works that are not original include those compiled largely by random processes, or solely through mechanical means.
The following are non-exhaustive examples of the types of works and their use that are protected by French copyright, as provided by Articles L. 112-1 and L. 121-3 FCP:
Every original creator has an intellectual property right. In addition, the law provides for the following special rules in certain atypical or particular circumstances of creation:
All individuals who feel their moral rights have been reduced or even eliminated can call upon Article L. 121-1 of the FCP, which essentially states that any contractual provision (except for works made for hire) that diminishes the authors’ moral rights or power of affiliation is considered null and void.
Length of Copyright Protection
The duration of protection afforded by copyright law is not uniform, but rather subject to variations depending on the nature of the work, the author and other special circumstances.
Authors, progenitors and editors of publications are by principle the rightful owners of copyright in their works. On the date of creation of their works, protection subsists for the life of the author and continues for 70 years after his or her death. If the work was created in collaboration, the duration is extended for 70 years from the last co-author’s death. If the work, which did not previously enjoy copyright protection, was created in the execution of an employment contract, the duration of the contract will apply and will not last for more than 70 years.
In case a work has been created by a person who had not the required capacity to exercise copyright, the right will be vested on the person who would have been the rightful owner of the copyright had the creator of the work had that capacity. Consequently, author and editor of a publication are the parents of the creator and a person who has prepared and edited a manuscript.
The works of authors or artists on French territory, which are not furthermore provided with copyright protection in their state of origin, benefit from a supplementary duration of 30 years. In this case, the 70 years included term and the 30 years are consecutive.
The duration of rights provided for the protection of computer programs is 50 years. Furthermore, works of graphic art and photographic work and those made by means of a process analogous to photography (for which copyright protection does not subsist) benefit from a shorter duration of 25 years after creation.
Rights and Protections Granted to Copyright Holders
The Copyright Holder enjoys a set of exclusive rights (the "moral right" and the "property right") with regard to the works it creates. The moral and property rights are treated and protected in a different way by law, but nonetheless are complementary.
In order to be protected under the French Copyright Law, a work of authorship must be original (Article L.112-1). In a nutshell, a work is original only if it reflects the author’s style (i.e. it is unique or different from other works). Thus, the following test is usually applied in order to determine originality: does the work contain identifiable characteristics that show its individual "signature".
Accordingly, the Copyright holder enjoys the following exclusive rights regarding to the work it creates: (i) a wide scope right to reproduce the work (Article L.122-1), (ii) a right to distribute the work (Article L.122-4), and (iii) a right to adapt the work (Article L.122-4). However, other than economic rights, the Copyright holder also enjoys the following moral rights in relation to the work, i.e. to: (i) attribution (i.e. to attribution to the author), (ii) paternity (i.e. to safe guard the author’s name), and (iii) integrity (i.e. to protect the integrity of the work). The latter rights are inalienable and perpetual.
Copyright holders may divide and transfer title to copyright in the following ways: (i) assignment, (ii) license, (iii) contract, (iv) waivers, (v) full or partial waiver of moral rights, (vi) exclusive or non-exclusive license, or (vi) secured contracts.
Exemptions and Restrictions
The concept of limited and exceptional uses is addressed in Articles L 122-5 to L 122-7 of the French Intellectual Property Code (IPC). Article L 122-5 encompasses a non-exhaustive list of permitted exceptions: • private reproduction for personal or family use, as well as the copying of short excerpts from an existing work for teaching purposes, • quotations, • reproduction that is incidental to reporting of current events or for the purpose of public security and legal proceedings, • rehearing of a work, • graphic arts, sculpture and photography, • blind people, • reproduction by workers in the printing as well as transformations for management purposes, • editorial illustration and commentary, • sound and video recordings, • pre-press, • genealogy, • non-profit making visual aids, overhead sheets or slides for educational purposes, • software renders of a work, website links or thumbnails, as well as search results and screen shots, • acts of remote loading and access to a cloud computing platform as provided for by the consumer code, • rental or lending of a work by libraries, media or workplace libraries. The conditions of application of each exception and limitation are determined in detail in each provision. Notably, under Article L 122-5 3° it is considered permissible to make short quotations from a work, so long as certain conditions are met. Firstly, the quotation must be made to serve a purpose other than that of the work quoted. Secondly, the nature of the quotation must not undermine the proper exploitation of the work. Thus, a legal review may be required, on a case-by-case basis, as to whether a particular purpose does in fact justify use of the name of the author and the work quoted. Finally, the quotation must be short. As regards educational use, Article L 122-5 2° provides that it shall be permissible to use short extracts from articles or other works published in any medium, provided that the author and the title of the work from which the extract has been taken are indicated. Finally, with regards to works incorporated into computer programs, Article L 122-7 of the IPC states: "Article L 122-7 In addition to the exceptions provided for by Article L 122-5, it is therefore specified that it is permitted, in the framework of the use of a computer program, which must be considered a literary work as defined in Article L 112-2, to: 1° Deny the right of the producer of a computer program to prohibit backward engineering as defined hereinafter and without authority to such usage; 2° Deny the exclusive right of the author of the program, in accordance with the conditions provided for in 3° and 4°, to prohibit the decompilation of his program. Backward engineering is considered to be both the study of the code of a program, in as far as this study is made by loading the program into a computer system and observing its operation, with the sole aim of understanding it and verify that it functions properly, and the analysis of the program, in order to create the information necessary for obtaining fundamentally interoperable elements. The act of decompilation relates to subsequent acts of analysis of the results achieved through such a study, so as to replicate the code of a program or of elements of the program. It …" This last exception may be of particular interest to technology companies active in the field of copyright.
Copyright Enforcement and Violation Issues
The enforcement of copyright law in France is a comprehensive procedure, ensuring that the rights of creators and holders of intellectual property are upheld. The French authorities, namely the police and the gendarmerie, play a central role in handling intellectual property crime, in cooperation with copyright holders, who have the duty to be vigilant regarding any infringements or counterfeiting of their works.
Copyright infringement in France, be it civil or criminal, is deemed as applying the concept of fault, which means that the infringement is a tortuous act and that the infringer’s liability depends on proof of negligence or intention to infringe. This criterion is different from the one existing in English law, where liability in tort does not depend on a fault and is more linked to the lawful enjoyment of the property rights.
While copyright law is a private right, the Copyright Office of France ("Centre Francais d’Exploitation du Droit de Copie), which is organised and recognised by the law, has full standing to instigate and participate (on its own or by way of rapporteur) in any legal proceedings relating to copyright matters. A copyright holder or a sufficient interest group may also, at their own costs, be authorised by a judge to bring a claim.
Copyright holders or legitimate licensees may be assisted by external experts for the examination and detection of illegal uses of their protected works.
In case copyright infringement proceedings have been instituted, the judge may, in addition to the damages awarded, order penal sanctions against the infringer. Both the criminal court and the civil courts can award compensation as damages for the damages suffered by the owner (and/or the user, in the case of a licensee) as a result of the violation and to the publisher of the work as owner of the copyright. Where the copyright has been violated by a media service provider, the settlement may include an injunction to the service provider to cease such injurious acts .
In practice, where a claimant wins a civil suit, it will obtain a court order awarding it monetary damages for its loss, and may, in certain circumstances, also obtain an order for the infringer to pay its legal costs (as evidenced by bills from its lawyers and/or from its law firm) and other expenses (including, notably, the costs of any experts appointed). A copyright holder may also seek pre-emptory provisional remedies (such as, for instance, suspension of the infringing use of its work or destruction of the allegedly infringing product made from its work) or "gagnant d’instance" – a possibility of claiming damages for the right holder in the event of the success of the defendant, even if no infringement is detected.
Rights holders can also rely on Article L. 332-1 of the French Intellectual Property Code under which any copyrights infringement also constitutes the offence of counterfeiting, which carries a separate (i.e., criminal) liability. Counterfeiting is defined as a "direct or indirect representation, reproduction or imitation, total or partial, of a work of the mind presenting a sufficiently original characteristic to be protected under intellectual property law, in any form and by any means, with the aim of inducing to any confusion with the original". The penalty in this case may include one year of imprisonment, as well as a fine of up to €300,000, and the confiscation of illegal copies of the work concerned.
French and EU law also provides for a temporary injunction to be made against those infringing the right whilst the validity of the right is being assessed. In civil proceedings, this process is known as a "saisie-contrefaçon". In criminal proceedings, it is called a "saisie contrefaçon-recherche". These contracts allow copyright holders to seek the confiscation of all of the infringing products, as well as to obtain documents relating to the manufacture, the marketing and the distribution of the products.
Directives and Regulations Influencing French Law
In recent years there have been a number of European Union Copyright Directives that impact French Copyright Law. The EC Directive 2001/29/CE of May 22, 2001 deals with the harmonization of aspects of copyright and related rights in the information society. The implementation of the Directive into French Law took effect on December 3, 2003. Implementing Decree No. 2003-770 of August 1, 2003 merely required the addition of just the following two articles to the French Intellectual Property Code: C. IP Article L-122-5 (the applicable exemptions) and C. IP Article L-122-6 (which provides for the exemption of temporary acts of reproduction provided that they are of limited duration).
Directive 2001/29 also provides for an exception for libraries and archives and the production of paper copies for the visually impaired. However, the French General Directorate of Competitiveness, Industry and Services Public Consultation Report of February 18, 2008 indicated that France will not be implementing these exceptions since they are already provided for in Articles L 122-5-3 and L. 211-3 of the French Intellectual Property Code.
The EC Directive 2001/84/CE of September 27, 2001 amends Article 14(2) of the Berne Convention for the Protection of Literary and Artistic Works and extends the term of protection from the author’s death until 70 years after the author’s death for a work of joint authorship to perpetuate the original intention of the drafters of the Convention that the authors of such works would be considered co-authors alike.
Directive 2004/48/EC of April 29, 2004 on the enforcement of intellectual property rights strengthens the provisions of Articles 313-1 and 321-1 of the French Criminal Code in cases of copyright infringement which provides for a maximum of three years’ imprisonment and fines of up to € 300,000. It also provides for provisional measures and implementation of border enforcement measures for counterfeiting.
Copyright in the Digital Era
The digital age has presented significant challenges to the traditional principles underlying French copyright law. The process of reproduction is now often no longer physical, but technology-based. As such, the ability of copyright owners to restrict reproduction by third parties is becoming increasingly difficult. Furthermore, the regime of private copy exemption (i.e. allowing consumers to duplicate sound recordings without infringement) is not limited to specific media in the new digital world. For example, downloading a lawful copy of an audio or video recording legally onto a computer hard drive or MP3 player falls under the exemption.
To address these challenges, French copyright law, as with other regimes around the world, has tried to enforce restrictions on the free reproduction of musical and audiovisual works, such as making it lawfully impossible to reproduce such works for an unlimited period of time. Rights holders have also adopted technical measures such as Digital Rights Management ("DRM"), which uses specific devices to prevent illegal reproduction. But implementation of such technical measures is not yet mandatory in France.
However, these technological restrictions have proven far from effective. In response, the French courts have granted several injunctions enforcing various technologic restrictions on internet service providers, requiring them to prevent customers from accessing illegal downloading sites.
From a legal perspective, the scope of application of these restrictions has been discussed by French academics. It has been noted that while they may be effective when applying to public distribution of illegally reproduced works in physical form, such measures have a less clear scope of application when implemented for non-physical distribution into private hands. This raises many more questions than answers about the extent to which technical means should replace traditional legal ones, so as to prevent the dissemination of infringing works.
Agreements and Conventions
French copyright law is subject to international treaties and agreements to which France is a party. These international agreements impact both French copyright law and the international protection of works and their authors.
The Berne Convention for the Protection of Literary and Artistic Works ("Berne Convention"), adopted in 1886 and later revised in 1908, 1928, 1948 and 1967, is among the most important international agreements affecting French copyright law. The Berne Convention was created following the recognition that the care taken by one country’s courts when protecting the rights of an author in his/her work was not sufficient protection for the author. The United States is a signatory to the Berne Convention, and thus courts will carefully protect any authors’ rights recognized by the Berne Convention. Quoting from the French Copyright Code, the Berne Convention sets forth that "the countries to which this convention applies afford the authors [. . .] of the contracting countries independent protection for their works, whether published or not." In addition , it stipulates that "they accord authors the right to control the following acts: translation, adaptation, arrangement and other transformations of their works, including the right to authorize or prohibit the distribution of adapted works and of collections containing arranged or transformed works." France is also a party to the Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods (commonly known as the "Trade Related Aspects of Intellectual Property Rights" or "TRIPs Agreement"). The TRIPs Agreement was agreed upon during the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in December 1993 and came into force on January 1, 1995. The TRIPs Agreement requires member States, among other provisions, to provide protection comparable to that provided by the Copyright Act of the United States. The TRIPs Agreement is applicable in all World Trade Organization ("WTO") member States, including the United States and France. Thus, French courts interpreting French copyright law will likewise be guided by the TRIPs Agreement in interpreting the provisions of the Copyright Code.