Copyright law of France

The droit d'auteur (or French copyright law) developed in the 18th century at the same time as copyright developed in the United Kingdom. Based on the "right of the author" (droit d'auteur) instead of on "copyright", its philosophy and terminology are different from those used in copyright law in common law jurisdictions. It 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 law (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)

The controversial DADVSI act was due to reform French copyright law in spring 2006. This law, voted by the French Parliament on June 30, 2006, implements the 2001 EU Copyright Directive; however, there existed considerable differences of opinion as to how to implement the directive, in many respects.

On 8 December 2005 the Tribunal de grande instance de Paris concluded that file sharing through peer-to-peer was not a crime [1]. The judgment was based on the right to "private copy" described in the Intellectual Property Code which includes the use of digital media [2].

On 7 March 2006, however, 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.

History

Further information: History of copyright law

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 ^[1]. The privilege concerned the publication rights to authors' works, rather than authors' rights per se. The first privilege granted in France was given by Henri II in 1551 to Guillaume Morlay, his luth player ^[1]. Through this system of royal privileges, the King granted monopolies to specific editors, and implemented a system of censorship ^[1]. Privileges were then very short (3 to 10 years), after which the work entered the public domain ^[1]. The Moulins ordinance of 1566, the first piece of legislation to impose to librarians and editors the request of a printing patent, did not make any mention of authors ^[1].

Despite this regime which privileged editors over authors, some of the latter succeeded in obtaining privileges for their works. During the Muret Affair, in 1568, the lawyer Marion pleaded for a complete and unrestricted right of property of the author on his work, and intellectual property thus entered the French jurisprudence ^[1].

At the same time, the practice of remunerating authors by some percentage became common during the 17th century ^[1]. Playwrights, including Corneille, started to defend their rights because at that time, once a play was published, any troupe could play it without paying anything to its creator ^[1]. The King thus arbitrated between the rival interests of editors and creators, giving his preference to the former ^[1].

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 ^[1]. In 1777, two other court decisions limited the publisher's right, which was restricted to the life-time of the author ^[1].

Following the abolition of privileges on the night of 4 August 1789, during the French Revolution, the National Convention enacted new legislation on the matter ^[1]. A draft law was proposed by the Abbé Sieyès, which, although allegedly inspired by Condorcet's pamphlet titled Fragments sur la liberté de la presse (Fragments on liberty of the press, 1776), aimed at struggling against the spread of licentious ideas by imposing responsibility for their diffusion on authors, publishers and librarians ^[1]. Sieyès and Condorcet also advanced the idea of "limited privilege," against perpetual privileges, thus preparing the inclusion in the public domain of the works of Racine, Molière, Rousseau, Voltaire, etc. According to Anne Latournerie, "The first revolutionary attempt to provide to authors a legal recognition of their rights on their texts was therefore not the search of a freedom for authors, but rather the exigency of a responsibility.^[1]"

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

Debates continued throughout the 19th century - notably, between Lamartine and Proudhon - and the inter-war period. As early as August 1936 during the Popular Front, the Minister of National Education and of the Beaux-Arts Jean Zay proposed a draft law based on a new philosophy of the author as an "intellectual worker" (travailleur intellectuel) rather than as an "owner" (propriétaire). Jean Zay placed himself in a moral continuum with Alfred de Vigny, Augustin-Charles Renouard and Proudhon ^[1], defending the "spiritual interest of the collectivity" ^[1]. Article 21 of his draft divided the 50 years post-mortem protection period into two different phases, one of 10 years and the other of 40 years which established a sort of legal licence suppressing the right of exclusivity granted to a specific editor ^[1]. Zay's draft project was particularly opposed by the editor Bernard Grasset, who defended the right of the editor as a "creator of value" ^[1], while many writers, including Jules Romains and the president of the Société des Gens de Lettres, Jean Vignaud, supported Zay's draft ^[1]. The draft did not succeed, however, in being voted in before the end of the legislature in 1939.

New discussions were undertaken during the Vichy regime, initiated by a corporatist body ^[1], presided over by three jurists, François Hepp, René Dommange, and Paul Lerebours-Pigeonnières ^[1]. Both Hepp and Dommange had been at the forefront of the battle against Jean Zay's draft law during the Popular Front ^[1].

During the Fourth Republic, 13 years of debate culminated in the modernization of the law with the March 11, 1957 Act, which was in the mold of the Vichy proposals ^[1] — a continuity proudly highlighted by François Hepp ^[1]. A Commission had been created in August 1944, presided over by the jurist Jean Escarra, who had co-signed in 1937 an essay with François Hepp and Jean Reault, published by Grasset, which harshly criticized Jean Zay's draft project ^[1].

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 ^[2]. 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 ^[2].

In March 2006, the controversial DADVSI Act, which implements - including modifications - the 2001 EU Copyright directive will be voted on by the National Parliament ^[3].

Protected works

The criterion for protection of a work under French copyright law is that it be an œuvre de l'esprit, a work of the mind (Art. L112-1). Hence there must be a human intellectual contribution to the work. A list of types of work which are protected is given in Art. L112-2: this list (taken from the Berne Convention) is not limitative.

The copyright protection of computer programs was, and to some extent still is, the subject of much debate in France. Patent protection was first excluded by Loi n°68-1 du 2 janvier 1968 sur les brevets d'invention^[4] and defined in copyright by Loi n°85-660 du 3 juillet 1985 relative aux droits d'auteur et aux droits des artistes-interprètes, des producteurs de phonogrammes et de vidéogrammes et des entreprises de communication audiovisuelle^[5]. The legal position was resolved by the transposition of May 14, 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.

The author may transfer his or her proprietary rights to a third party.

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.

Before February 2007, 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, with peculiar ways of counting these (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.^[6] They still have to be added to the 70 years delay for musical works, because of a 1985 law.^[7]

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).

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

In addition, posthumous works are copyrighted 25 years from the year of publication.

Copyright management societies

As in other countries, 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. The most important are:

• Centre Français d'Exploitation du droit de copie (CFC)
• Sacem
• ADAGP
• SACD

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's integrity (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 under French copyright law

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.^[8]

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

1. Private family performances.

2. 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.

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

a) Analyses and short citations justified by the critical, polemical, scientific or pedagogical nature of the work.

b) Press reviews.

c) Diffusion of public speeches as current news.

d) Reproductions of works of art in catalogues for auctions in France (subject to regulatory restrictions).

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

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

There is no specific provision for government works or laws: the copyright is normally held by the relevant public body.

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). This attracts a fine of up to 300,000 Euros (approx. US$375,150, or £247,100 as of July 2010) and a term of up to three (3) years imprisonment. These penalties are increased to a fine of up to €500,000 and a term of up to five (5) years imprisonment if the offense is committed in an organized group (bande organisée). 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.

Relation to international copyright law

Under Art. 55 of the Constitution of 1958, a ratified treaty is superior to French domestic law. Hence the conflict of laws provisions of the Berne Convention will be used in determining the applicability of the French Code de la propriété intellectuelle.

See also

• Copyright law of the European Union
• December 22, 2005 last-minute amendments legalizing peer-to-peer exchanges in the frame of the DADVSI Act implementing the 2001 EU Copyright Directive
• French Intellectual Property Code

References

Much of this article is based on the article "Droit d'auteur" in French Wikipedia.

1. ^ ^{a b c d e f g h i j k l m n o p q r s t u v w x y} Anne Latournerie, Petite histoire des batailles du droit d’auteur, Multitudes n°5, May 2001 (French)
2. ^ ^{a b} Luce Libera, 12 268 millions de poèmes et quelques... De l’immoralité des droits moraux, Multitudes n°5, May 2001 (French)
3. ^ (French)"La farce du téléchargement, par Michel Alberganti". Le Monde. 2006-03-14. http://www.lemonde.fr/web/article/0,1-0@2-651865,36-750471,0.html. 
4. ^ http://www.legifrance.gouv.fr/affichTexteArticle.do;?cidTexte=JORFTEXT000000317285&idArticle=LEGIARTI000006281073&dateTexte=19680103
5. ^ http://www.legifrance.gouv.fr/affichTexte.do;?cidTexte=JORFTEXT000000693451&dateTexte=19850704
6. ^ Cour de cassation
7. ^ (French) Loi n° 85-660 du 3 juillet 1985, art. 8.
8. ^ (French) Legifrance, ed. "Article L122-5 du code de la propriété intellectuelle". http://www.legifrance.gouv.fr/affichCodeArticle.do;jsessionid=BF1AAE00BD1C67AC85C19C6E6C919273.tpdjo15v_3?idArticle=LEGIARTI000020740486&cidTexte=LEGITEXT000006069414&dateTexte=20101108. Retrieved November 8, 2010. 

External links

• Code de la propriété intellectuelle (official site) (French)
• French Intellectual Property Code (semi-official translation)
• French Intellectual Property Code (WIPO translation)
• Siffloter "L'Internationale" peut coûter cher, Le Monde, 9.04.05 The music to The Internationale will remain under copyright in France (but not in the USA) until 2014.