French Copyright Law

Sociologyindex, Sociology Books 2011

The French copyright law was based on the "right of the author" instead of on "copyright" and its philosophy and terminology are different from those used in copyright law in common law jurisdictions. The French copyright law has been very influential in the development of copyright laws in other civil law jurisdictions, and in the development of international copyright law such as the Berne Convention.

French copyright law is defined in the Code de la propriété intellectuelle, which implements European copyright directives. Unless otherwise stated, references to individual articles are to the Code de la propriété intellectuelle.

Two distinct sets of rights are defined:

Proprietary rights (droits patrimoniaux)

Moral rights (droits moraux)

On 7 March 2006, the National Assembly passed the DADVSI Act which implemented - with some modifications - the 2001 European Union Copyright directive. The DADVSI act makes peer-to-peer sharing of copyrighted works an offense. It does, however, allow for sharing of private copies of tape recording and other media.

The concept of "right of the author", which differs from Anglo-American copyright, finds its roots in the practice of printing patents and royal privileges, which first appeared in the 16th century and became common in the 17th century. Rather than the author, the privilege concerned the publication of his works.

The first privilege granted in France was given by Henri II in 1551 to Guillaume Morlay, his luth player. Through this system of royal privileges, the King granted monopolies to specific editors, and implemented a system of censorship. Privileges were then very short (3 to 10 years), after which the work entered the public domain.

The Moulins ordinance of 1566, first piece of legislation to impose to librarians and editors the request of a printing patent, did not make any mention of authors.

In 1761, a court decision granted to Jean de La Fontaine's granddaughters the right of ownership of La Fontaine's work, legitimized by the right of inheritance. In 1777, two other court decisions limited the publisher's right, which was restricted to the life-time of the author.

Finally, after a controversy concerning dramatic authors, and their rebellion, led by Beaumarchais, these tentatives resulted in the July 19, 1793 Chénier Act. The July 14, 1866 Act proroges the rights until fifty years after the death of the author.

In 1997, a court decision outlawed the publication on the Internet of Raymond Queneau's Hundred Thousand Billion Poems, an interactive poem or sort of machine to produce poems. The court decided that the son of Queneau and the Gallimard editions possessed an exclusive and moral right on this poem, thus outlawing any publication of it on the Internet and possibility
for the reader to play Queneau's interactive game of poem construction.

In March 2006, the controversed DADVSI Act, which implements - including modifications - the 2001 EU Copyright directive was voted by the National Parliament.

Protected works

There must be a human intellectual contribution to the work. The criterion for protection of a work under French copyright law is that it be an œuvre d'esprit, a work of the mind (Art. L112-1).

A list of types of work which are protected is given in Art. L112-2: The list is taken from the Berne Convention.

The legal position regarding copyright protection of computer programs was resolved by the import of the 1991 EU Directive into French law. Computer programs and any associated preparatory works qualify for copyright protection in France as in other European Union jurisdictions. Databases are protected by a related sui generis right.

The term "author" is used to designate the original creator(s) of any type of protected work, e.g., the artist, photographer, director, architect, etc. Where the author cannot be identified, e.g., for anonymous works and collective works, the copyright is exercised by the original publisher.

Proprietary rights

The proprietary rights of the author allow him or her to exploit the work for financial gain. The author has the right to authorize the reproduction of the work (droit de reproduction) and to allow its public performance (droit de représentation): he or she may also prevent the reproduction or public performance.

Duration of proprietary rights

The general rule is that the proprietary rights of the author last for seventy (70) years after his or her death (Art. L123-1), or for one hundred (100) years after the author's death if the author is declared to have died on active service (Mort pour la France) (Art. L123-10). The author is deemed to have died on 31 December of the year of death.

The periods of World War I and World War II were not taken into account for the determination of the expiry date of proprietary rights (Arts. L123-8 & L123-9). These exceptions applied to works published before and during the wars, and must be added whatever the date of the author's death.

These extensions were removed (for non-musical works) by the Court of Cassation (Supreme Court) in February 2007. But they still have to be added to the 70 years delay for musical works, because of a 1985 law.

For collaborative works, the date of death of the last collaborator serves as the reference point for the 70 year post mortem auctoris period (Art. L123-2). Audiovisual works are treated similarly, although the list of collaborators is defined by the law: scriptwriter, lyricist, composer, director.

Proprietary rights in pseudonymous, anonymous or collective works last for seventy (70) years after the date of publication (Art. L123-3).

In the case of phonographic works, the proprietary rights last for fifty (50) years after the date of recording.

Posthumous works are copyrighted 25 years from the year of publication.

Copyright management societies

There are a number of societies which collectively manage the licensing of different types of work and the collection of royalties on behalf of copyright holders. These societies typically operate as associations, and are regulated by the Code de la propriété intellectuelle (Arts. L321-1 to L321-13) and the Ministry of Culture.

Moral rights

French copyright law treats a protected work as an extension of the personality of the author which is protected by a certain number of moral rights. In general, the author has the right to "the respect of his name, of his status as author, and of his work" (Art. L121-1). The following rights are usually recognised:

right of publication (droit de divulgation): the author is the sole judge as to when the work may be first made available to the public (Art. L121-2).

right of attribution (droit de paternité): the author has the right to insist that his name and his authorship are clearly stated.

right to the respect of the work (droit au respect de l'intégrité de l'oeuvre): the author can prevent any modification to the work.

right of withdrawal (droit de retrait et de repentir): the author can prevent further reproduction, distribution or representation in return for compensation paid to the distributor of the work for the damage done to him (Art. L121-4).

right to protection of honour and reputation (droit à s'opposer à toute atteinte préjudiciable à l'honneur et à la réputation).

The moral rights of the author may conflict with the property rights of the owner of the work, for example an architect who tries to prevent modifications to a building he designed. Such conflicts are resolved on a case by case basis, and recent jurisprudence has led to a weakening of certain moral rights (notably the right to the respect of the work).

The moral rights are inalienable, perpetual and inviolable. They pass to the author's heirs or executor on the author's death, but may not be otherwise transferred or sold under any circumstances, by either the author or his legal successors. Any agreement to waive an author's moral rights is null and void, although the author cannot be forced to protect his work.

The public domain

A work enters the public domain (domaine public) once the proprietary rights over it have expired. It may then be used without charge, so long as the moral rights of the author are respected. Notably, the name of the author and the original title of the work must be cited.

Exceptions

Art. L122-5 defines the exceptions to French copyright law, which are relatively restricted.

Once a work has been published, the author cannot prevent:

Private family performances.

Copies for the private and personal use of the copier. This provision does not apply to works of art, computer programs (where a single safeguard copy is allowed, Art. L122-6-1-II) and databases.

In cases where the name of the author and the source are clearly indicated,

Analyses and short citations justified by the critical, polemical, scientific or pedagogical nature of the work.
Press reviews.
Diffusion of public speeches as current news.
Reproductions of works of art in catalogues for auctions in France (subject to regulatory restrictions).

Parody, pastiche and caricature, "taking into account the usage of the genre".

Acts necessary to access a database within the limits of the agreed use.

Penal measures

Contrary to the position in most Common Law jurisdictions, the breach of proprietary rights is a criminal offense in France: contrefaçon (Arts. L335-2 to L335-4).

There is no distinction between the breach of French copyright and the breach of foreign copyright, though the breach must occur in France to be punishable. The import of infringing copies into France, and the distribution of such copies, are punished under the same provisions and are subject to the same penalties.

This attracts a fine of up to 300000 EUR and a term of up to three (3) years imprisonment. These penalties are increased to a fine of up to 500000 EUR and a term of up to five (5) years imprisonment if the offense is committed in an organized group (bande organisée).

In December, 2005, the Grande Instance de Paris Court concluded that file sharing through peer-to-peer was not a crime The sentence was based on the right to "private copy" described in the Intellectual Property Code which includes the use of digital media.

The DADVSI Act, implementing the 2001 European Union Copyright directive, was voted by the National Assembly on March 17, 2006.. The DADVSI act makes peer-to-peer sharing of copyrighted works an offense, and forbids fair use of purchased private copies, though it still exists for other cases, such as tape recording.

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