Copyright law of France
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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 criminal offense. The judgment was based on the right to "private copy" described in the Intellectual Property Code which includes the use of digital media.
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.
- 1 History
- 2 Protected works
- 3 Proprietary rights
- 4 Moral rights
- 5 Exceptions
- 6 Criminal sanctions
- 7 Relation to international copyright law
- 8 Difference between copyright and droit d'auteur
- 9 See also
- 10 References
- 11 External links
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. 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 lute 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, the first piece of legislation to impose to librarians and editors the request of a printing patent, did not make any mention of authors.
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.
At the same time, the practice of remunerating authors by some percentage became common during the 17th century. 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. The King thus arbitrated between the rival interests of editors and creators, giving his preference to the former.
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.
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. 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. 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."
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, defending the "spiritual interest of the collectivity". 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. Zay's draft project was particularly opposed by the editor Bernard Grasset, who defended the right of the editor as a "creator of value", while many writers, including Jules Romains and the president of the Société des Gens de Lettres, Jean Vignaud, supported Zay's draft. 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, presided over by three jurists, François Hepp, René Dommange, and Paul Lerebours-Pigeonnières. Both Hepp and Dommange had been at the forefront of the battle against Jean Zay's draft law during the Popular Front.
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 – a continuity proudly highlighted by François Hepp. 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.
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.
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 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. 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.
A collective work is a work created at the initiative of a natural or legal person who edits it, publishes it and discloses it under his direction and name and in which the personal contributions of the various authors who participated in its production are merged in the overall work for which they were conceived, without it being possible to attribute to each author a separate right in the work as created. A collective work is the property, unless proved otherwise, of the natural or legal person under whose name it has been disclosed. The author's rights, vest in such person." The term of the exclusive right is 70 years from January 1 of the calendar year following that in which the work was published."
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 -> see the French Wikipedia article fr:Prorogations de guerre). 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 in February 2007. 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).
For phonographic works, the proprietary rights last for 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:
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: he perpetually retains the rights, but he also always has the option to refrain from exercising them.
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.
Art. L122-5 defines the exceptions to French copyright law, which are relatively restricted.
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.
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$391,850, or £250,300 as of January 2012) 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 organised 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 the French territory 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.
Difference between copyright and droit d'auteur
The droit d'auteur or authors' rights, in France, Belgium, Romania or Germany, grant (subject to some exceptions) the benefice of the right to natural persons (the author or his heir(s)) and denies it to legal persons (except for collective works, and for software), whereas "droits voisins" or neighbouring rights, grant rights to the editor or the producer. Both authors' rights and neighbouring rights are copyrights in the sense of English or U.S. law.
Copyright requires a material fixation of the work, as for example a speech or a choreography work, although it is an intellectual work (an œuvre de l'esprit), they will not be protected if they are not embodied in a material support. Such requirement does not exist under the droit d'auteur. As a consequence, an improvised live performance would still benefit from the protection of "droit d'auteur".
The classical difference between the two systems is the recognition of moral rights in the droit d'auteur whereas such rights did not initially exist in copyright. Hence, in civil law, the author is granted a moral right which sees the expression of the personality of the author in the work. In practice, the author will have a right to disclosure, a paternity right, a guarantee that the integrity of his work and his wishes are respected as well as a right of withdrawal (i.e., an author has the right to request his work to be withdrawn from circulation in exchange for compensation from those persons involved in its distribution who would moreover enjoy the right of priority in the event of the said work being redistributed). This right is attached to the author; it is inalienable and transmissible at the death of the author.
Historically, such rights do not exist in copyright, as it has been for decades an economic model, granting solely proprietary rights to authors. However several countries have harmonized their legislation since the ratification of the Berne Convention. However, the United States of America still refuse to apply the moral rights recognized by this convention.
Nonetheless, In the United States of America, moral rights are explicitly recognized for works of visual art. Indeed, the Visual Artists Rights Act of 1990 (VARA) recognizes moral rights but applies it only to works of visual art.
Difference between copyright and droit d'auteur for audiovisual and cinematographic works
As regards the management of patrimonial rights, the difference between copyright and droit d'auteur is not so clear as in both system the producer controls the exploiting of the work. It can be stated that the droit d'auteur favours the author while copyright favours the right to copy (exploitation right) linked to the work itself.
Under French law, the audiovisual work is considered as a collaborative work, that is, a work that has been created by multiple authors. The authorship is granted to natural persons (co-author) that have created the relevant work: scriptwriter, author of the musical composition etc. (L.113.7). In United States of America, audiovisual works are considered as "works made for hire" (works produced in relation with a contract for hire or service). The author of a work (either a natural or legal person) is the producer.
Term of protection of a work
In France, a work is protected until 70 years after the death of the last surviving co-author.
Applicable law for scriptwriters and directors
French law recognizes two types of droit d'auteur: moral rights and proprietary rights. French law rules the relation between authors and producers; such relations shall be formalized in a contract according to which the author assigns his proprietary rights to the producer.
In the United States of America, labor law rules relations between "creators" and the production companies. Scriptwriters and directors are consequently the employees of the producer. As such, they can be fired and replaced at any moment, and their names will appear in the theme song only if their work fulfills the necessary conditions for the attributions of "credits" as provisioned under the MBA (Minimum Basic Agreement).
American Law does not grant morals rights to the "creators". Some rights related to moral and proprietary rights are negotiated.
The difference between the two systems tends to disappear. For instance, moral rights are recognized progressively in the United States of America. Hence eleven U.S. states recognize explicitly moral right. Moreover, United States of America courts tend to take into account this right. California and New York guarantee the integrity of the author's work, and the Visual Artists Rights Act, enacted October 27, 1990, transposes in a federal law moral rights of artists. In the United Kingdom, moral rights have been incorporated in copyright law (Copyright, Designs and Patents Act 1988).
For a historical and comparative overview of moral rights law in the United States of America, see Thomas F. Cotter (1997) "Pragmatism, Economics, and the Droit Moral", 76 North Carolina Law Review 1 .
The current tendency is that the droit d'auteur tends to guarantee an economic protection while copyright guarantee increasingly moral rights.
- 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
- "Wayback Machine" (PDF). web.archive.org. 30 November 2006.
- Anne Latournerie, Petite histoire des batailles du droit d’auteur, Multitudes n°5, May 2001 (in French)
- Luce Libera, "12 268 millions de poèmes et quelques... De l’immoralité des droits moraux," Multitudes n°5, May 2001 (in French)
- "La farce du téléchargement, par Michel Alberganti" (in French). Le Monde. 2006-03-14.
- "Loi n°68-1 du 2 janvier 1968 sur les brevets d'invention" Legifrance (in French)
- "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" Legifrance (in French)
- "Literary and Artistic Property", Intellectual Property Code (PDF), legifrance, retrieved 2017-06-04
- Angelopoulos, Christina (13 September 2012). "The Myth of European Term Harmonisation: 27 Public Domains for the 27 Member States". Rochester, NY. SSRN 2145862.
- Rybicka, Katarzyna. "The Little Prince: almost in the Public Domain". Retrieved 9 January 2016.
- "04-12.138Arrêt n° 280 du 27 février 2007Cour de cassation - Première chambre civile - Cour de cassation". www.courdecassation.fr.
- (in French) Loi n° 85-660 du 3 juillet 1985, art. 8.
- See Droit Moral as defined by the Cour de Cassation of Victor Hugo
- Legifrance (ed.). "Article L122-5 du code de la propriété intellectuelle" (in French). Retrieved November 8, 2010.
- Related rights
- Kwall, Roberta Rosenthal. "The Soul of Creativity: Forging a Moral Rights Law for the United States". Stanford University Press, 2010, p. 30.
- Gassaway, Laura. Copyright and moral rights. (Copyright Corner). "Information Outlook," Vol. 6, No. 12 (December 2002), p. 40.
- Legifrance (ed.). "Article L113.7 du code de la propriété intellectuelle". Retrieved December 19, 2011.
- Writers Guild of America (ed.). "2011 Writers Guild of America Theatrical and Television Basic Agreement". Retrieved December 19, 2011.
- North Carolina Law Review (ed.). "Thomas F. Cotter, Pragmatism, Economics, and the Droit Moral, 76 N.C.L.Rev. 1 (1997)". Retrieved December 25, 2011.
- Code de la propriété intellectuelle (official site) (in 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.