Copyright law of France

Background The concept of "rights of the author", which distinctly differs from the Anglo-American concept of 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 de Morlaye, his lute player. The 1957 authors' rights laws were substantially modified by Act No. 85-660 of July 3, 1985, which came into force on January 1, 1986. Among other changes, this act introduced various neighbouring rights and increased the length of intellectual property protection for musical compositions to life of the author plus 70 years. These laws were then incorporated into the Intellectual Property Code, enacted on July 1, 1992. 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 judgment was based on the right to "private copy" described in the which includes the use of digital media. DADVSI Act On 7 March 2006, the National Assembly passed the DADVSI Act which implemented—with some modifications—the 2001 Information Society directive of the European Union. The DADVSI act makes peer-to-peer sharing of property rights' protected works an offense. It does allow for sharing of private copies of tape recording and other media. However, there existed considerable differences of opinion as to how to implement the directive, in many respects. == Protected works ==

The condition for protection of a work under French authors' rights law is that it be an ''œuvre de l'esprit'', a work of the mind and original in form (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 legal 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 authors' rights 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 Computer Programs Directive into French law: computer programs and any associated preparatory works qualify for authors' rights 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 authors' rights 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." Freedom of panorama == Proprietary rights ==

The proprietary rights of the author allow him or her to exploit the work for financial gain, but also to authorize free use, and anything in between. The author has the right to authorize or prohibit the reproduction of the work (droit de reproduction) and to allow its public performance (droit de représentation); the author 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 last for 70 years after the death of the author (Art. L123-1), or for 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 ). 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 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. Posthumous works (works published after the death of the author) are protected for 25 years from the year of publication. Authors' rights 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 authors' rights 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 authors' rights 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 by the author or legal successors. Any agreement to waive an author's moral rights is invalid, although the author cannot be forced to protect moral rights to the work, and always has the option to refrain from exercising them. The public domain under French authors' rights 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 authors' rights 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 authors' rights is normally held by the relevant public body. == Criminal sanctions ==

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 authors' rights and the breach of foreign authors' rights or 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 authors' rights and 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 for instance France, Belgium, The Netherlands, Italy, Romania or Germany, grant (subject to some exceptions) the benefice of the right to natural persons (the author and heirs) 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. Authors' rights 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''. Thus an improvised live performance would still benefit from the protection of "droit d'auteur". Moral rights 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. Authorship 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. The music to The Internationale did remain under authors' rights in France (but not in the USA) until 2014. Applicable law for scriptwriters and directors French law recognizes two types of ''droit d'auteur'': moral rights and proprietary rights. French law governs 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 governs the relations between "creators" and 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 credits 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 always grant moral rights to creators. Some rights related to moral and proprietary rights are negotiated. Towards harmonization The French and common-law systems have converged somewhat over time. Analogues to moral rights are increasingly recognized in U.S. courts, and eleven U.S. states recognize explicitly moral rights in law. The states of California and New York guarantee the integrity of the author's work, and the Visual Artists Rights Act, enacted October 27, 1990, incorporates moral rights of artists in a federal law. In the United Kingdom, moral rights have been incorporated in copyright law (authors' rights, 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 also guarantee an economic protection while copyright increasingly guarantee moral rights. == See also ==

• Anne Latournerie, Petite histoire des batailles du droit d’auteur, Multitudes n°5, May 2001 == References ==