France was the first Member State to implement a part of the Copyright Directive (DSM) into its national law, when it implemented Article 15 of the Directive by Law n° 2019-775 of July 24th, 2019. The press publishers' right is therefore applicable as of October 24th 2019 for press publications first published before the date of entry into force of the DSM (June 7 2019).
On May 12th 2021, the French government promulgated a new Ordonnance (n°2021-580) implementing Articles 17 to 23 of the DSM. A second Ordonnance (n°2021-1518) promulgated on November 24th 2021 completed the process of implementation for France, even though the deadline was set for June 7th 2021.
Finally, it should be noted that the Decree n° 2022-928 of June 23rd 2022 introduced amendments to the regulatory part of the French IP Code and specified the application of the provisions created by the November Ordonnance.
• Law n°2019-775 of July 24th 2019 creating a neighbouring right for press agencies and publishers ;
• Ordonnance n°2021-580 of May 12th, 2021, implementing Article 2(6) and Articles 17 to 23 of the the Directive 2019/790 of the European Parliament and of the Council of April 17th 2019 on copyright and related rights in the digital single market and amending Directives 96/9/EC and 2001/29/EC ;
• Ordonnance n°2021-1518 of November 24th, 2021, further implementing the Directive 2019/790 of the European Parliament and of the Council of April 17th 2019 on copyright and related rights in the digital single market and amending Directives 96/9/EC and 2001/29/EC ;
• Decree n° 2022-928 of June 23rd 2022, amending the Intellectual Property Code and completing the implementation of Directive 2019/790 of the European Parliament and of the Council of April 17th 2019 on copyright and related rights in the digital single market and amending Directives 96/9/EC and 2001/29/EC.
• The provisions of the Law n°2019-775 of July 24th 2019 creating a neighbouring right for press agencies and publishers apply to all publications after June 7th 2021 ;
• Certain provisions of the May 12th Ordonnance have entered into effect on June 7th 2021, while others have entered into force on June 7th 2022.
The Directive has been implemented into the French IP Code in the section dedicated to copyright law and to neighbouring rights.
The French implementation is compliant with Article 26(2) of the DSM.
The Text and Data Mining Exceptions have been implemented in Art. L. 122-5-3 of the French IPC.
The first exception "for scientific research purposes" (Article 3) which has already existed under French law, does not use the general term "cultural heritage institutions" as defined in the DSM, but specifically lists the following institutions: "publicly accessible libraries, museums, archives or institutions housing film, audiovisual or sound assets".
The second exception "without scientific purpose" (Article 4), previously inexistent in French law, has been implemented with the particular aspect of it being only applicable "provided that the rights holder has not expressed his/her opposition" (Article R. 122-32 of the IPC).
Rightholders can exclude their works from the scope of this exception, without having to provide a justification and can do so by any means, including by way of a simple mention in the metadata of the file containing the protected work (Article R. 122-32 IPC)
The French implementation of Article 15 closely corresponds to the text of this article, but it goes into greater detail regarding the applicable legal regime.
The following practical points are worth noting:
• France has decided to allow press publishers to waive this neighbouring right on a case-by-case basis ;
• Press publiers may entrust the management of their rights to one or more CMOs (Article L. 218-3 IPC);
• the remuneration is based on the revenues derived from the exploitation, whether direct or indirect, and must take into account elements such as human, material and financial investments made by publishers and news agencies, the contribution of press publications to political and general information and the importance of the use of press publications by online public communication services (Article L. 218-4 IPC);
• Online public communication services are also required to provide press publishers and news agencies with all information relating to the use of press publications by their users as well as any other information necessary to make a transparent assessment of said remuneration (Article L. 218-4 IPC);
• The beneficiaires of this neighbouring right may not prohibit the use of isolated words or very short extracts, but the effectivness of this right is notably impaired when the use of very short extracts replaces the press publication itself or obviates the need for the reader to refer to it (Article L. 211-3-1 IPC).
• The French implementation is silent on the fact that the press publication right does not apply to private or non-commercial uses of press publications.
The Ordonnance of May 12th 2021 has faithfully implemented Article 17 of the Directive (Art. L. 137-1 and following), ahd has not significantly deviated from it.
The following are some noteworthy differences/practical points relating to the new French law:
• An "online content-sharing service provider" is defined as a person who provides an online public communication service, the main purpose or one of the main purposes of which is to store and provide public access to a significant quantity of works or other protected subject matter uploaded by its users, which the service provider organises and promotes for direct or indirect profit (Article L. 137-1 IPC) : this variation in the definition could be understood as an effort by the French Government to limit discussions regarding defences based on the absence of profits actually generated by the content sharing provider or the merely incidental or secondary aspect of such profits.
• The assessment of the significance of the quantity of works shall take into account, inter alia, the number of files of protected content uploaded by the users, the type of works uploaded and the audience of the service (Article L. 137-1 IPC) ;
• An out-of-court redress mechanism is available for the settlement of any dispute in this respect (Article L. 137-4 IPC). This redress mechanism is referred to the ARCOM (fusion between HADOPI and CSA), entrusted with the power of making recommendations to online-service providers on the level of effectiveness of the implemented protection measures, requesting any useful information from said providers and setting up consultations with stakeholders.
The Ordonnance of May 12th 2021 (Articles 4 to 12) has implemented the provisions of Articles 18 to 23 of the Directive. Overall, the new IPC provisions are faithful to those of the Directive, simply adapting the previous French law. However, some might be adversely affected from the imprecision of certain concepts from the Directive and the complexity of certain introduced mechanisms.
The Ordonnance also refers to collective and interprofessional agreements to specify the conditions for implementing the new provisions.
Article 21 has not been implemented, as the provisions on conciliation and mediation already provided in the French Code of Civil Procedure have already been deemed sufficient (report to the President of the Republic, OJ 13 May).
In summary, the following should be noted under the new French law:
- in general, authors have already benefited from the principle of proportional remuneration (Art. L. 131-4 IPC). However, there might be some discrepancy with the wording provided in Art.18 which mentions "appropriate and proportionate" remuneration ;
- the Ordonnance has strengthened the contractual protection of authors through a "best-seller clause", allowing for the readjustment of their remuneration not only in case of lump sum remuneration (pre-reform law), but also proportional remuneration (L. 131-5 IPC) ;
- The IPC (Art. 212-3) now establishes the principle of appropriate and proportional remuneration for performers. Proportionality shall be assessed in light of "the performer's contribution to the work as a whole and all other circumstances of the case, such as market practices or the actual exploitation of the performance".
- As for authors, a lump sum (fixed) remuneration is also possible for performers.
Until the Ordonnonance of May 12th, French law had only imposed specific obligations to report and provide information for specific sectors (book publishing, audiovisual production...).
The Ordonnance of May 12th has created a general obligation upon the contractual partner (licensees and assignees) to submit, at least once a year, information to the author or performer regarding the exploitation of their works and performances (respectively Art. L. 131-5-1 and L. 212-3-1).
Authors and performers also now have the right to request additional information from sub-licensees.
Accounting information shall be given by means of electronic communication ;