France: New copyright directive aims to protect rights in digital world

April 29, 2019

The Directive of the European Parliament and of the Council on copyright in the Digital Single Market was adopted on March 26 2019 by the European Parliament. The purpose of this directive is to protect authors' rights in the digital world. It provides general rules for protection and conditions of use for works protected by copyright in the fields of research, education and the conservation of cultural heritage.

Exceptions and limitations to copyright remain

The author enjoys on his work, by the mere fact of its creation, an exclusive right to intellectual property. This right includes intellectual and moral attributes as well as patrimonial rights. While authors enjoy significant protection and monopoly, there are limitations and exceptions.

These same limitations and exceptions will continue to apply. Content in the public domain or shared prior to the adoption of the directive without the permission of the author is subject to these rules.

The following are cited as exceptions or limitations: citation, criticism, review and use for purposes of caricature, parody or pastiche (Article 17.7).

No access to protected work granted without authorisation from the author

Article 17.1 of the directive provides that an online content-sharing service provider performs an act of communication to the public or an act of making available to the public for the purposes of this directive when it gives the public access to copyright-protected works or other protected subject matter uploaded by its users. As a result, online content-sharing service providers including platforms shall obtain an authorisation from the right holder, for which the directive encourages a licensing agreement.

Obligation to control content is imposed on platforms and hosting service providers

The directive puts an end to the "a priori" lack of responsibility of hosting services providers with regard to hosted content. On the contrary, there is a responsibility that is provided by Article 17.3 with regard not only to the act of communication to the public of works or other protected objects but also to the act of making them available. At this moment, hosting service providers are defined in France by the law of June 21 2004 only as technical intermediaries. As such, they benefit from a limited liability regime and only have responsibility if they are warned about hosting illegal content and do not suspend the broadcasting of the material quickly. From now onwards, hosting providers will also be held responsible for the diffusion of unauthorised content or if they cannot prove that they tried their best efforts to obtain an authorisation of diffusion or on the contrary to ensure its unavailability, block its access and prevent it from being uploaded in the future.

An adjustment of these conditions is nevertheless planned for recent suppliers under three years of age and who have an annual turnover of less than 10 million euros (Article 17.6)

Appropriate and proportionate remuneration of authors and performers is provided

Such remuneration must be "appropriate and proportionate to the actual or potential economic value of the rights granted under licence or transferred in the circumstances of the case, such as market practice or the actual exploitation of the work ..." (Recital 73).

When applying Article 18, member states must ensure that this principle is implemented (Article 18.1). To do so, they are free to use the various mechanisms available to satisfy the principle of freedom of contract and the right balance between rights and interests (Article 18.2). An obligation of transparency with regard to authors is provided for in Article 19, while Articles 20, 21 and 22 provide for mechanisms for adjusting contracts, an extra-judicial procedure for resolving disputes and a right of withdrawal in case of non-exploitation of the work.

The directive specifies in Article 23 that Articles 18 to 22 do not apply to computer programs within the meaning of Article 2 of Directive 2009/24 on the authorship of the program.

The directive is not yet published and a period of two years is granted for its implementation in national law. It will bring significant changes to platforms and hosting companies' practices and will oblige them to implement new procedures to meet the demands of their new responsibilities. It will also give authors new tools to have their rights respected and to fight against counterfeits, notably because they will be able to rely on preventive action by the major actors of the digital world.