Publication of the ordinance transposing articles 17 to 23 of the copyright directive
On Wednesday, May 12, 2021, the Minister of Culture presented the ordinance transposing articles 17 to 23 of the Copyright[1] Directive into French law.
The ordinance, which amends the Intellectual Property Code (hereinafter “IPC“), provides in particular
(i) For the transposition of Article 17 of the Copyright Directive,
First, the definition of “online content sharing service provider” refers to a person who provides an online public communication service whose main purpose or one of its main purposes is to store and give the public access to a significant quantity of works or other protected objects uploaded by its users, which the service provider organizes and promotes for profit, (i) not-for-profit online encyclopedias, (ii) not-for-profit educational and scientific directories, (iii) open source software development and sharing platforms (iv) providers of electronic communication services within the meaning of Directive (EU) 2018/1972, (v) providers of online marketplaces; (vi) business-to-business cloud services; and (vii) cloud services that allow users to upload content for their strictly personal use.
Second, that the fact that online content sharing service providers provide access to works protected by copyright and related rights uploaded by users is an act of representation and requires, de facto, the authorization of the rights holders.
In the absence of authorization, online content sharing service providers are liable for unauthorized acts of exploitation of copyrighted and neighboring rights works unless they demonstrate the following three conditions:
(a) They have made their best efforts to obtain permission from rights holders who wish to grant such permission;
(b) They have made their best efforts, in accordance with the industry’s high standards of professional diligence, to ensure the unavailability of specific works for which rights holders have provided them, directly or indirectly through a third party designated by them, with the relevant and necessary information;
(c) They have in any case acted promptly, upon receipt of a sufficiently reasoned notification from the rightholders, to block access to the notified works or to remove them from their service, and have made their best efforts to prevent the future uploading of such works, pursuant to (b).
Third, that these provisions must be reconciled with the free use of users and may not have the effect of depriving them of the effective benefit of the exceptions to copyright.
In particular, the legislator provides that providers of an online content sharing service must make available to users of their service a mechanism for appealing and handling internal complaints relating to blocking or withdrawal situations.
It is also provided that, in addition to the possibility of referring to the judge, the user may also refer to Hadopi in the event of a dispute over the follow-up given by the service provider to his complaint.
Fourthly, that the above-mentioned provisions are applicable as of June 7, 2021 to works and objects that have been protected by copyright and related rights on the date of publication of the ordinance, i.e., May 13, 2021, including those uploaded prior to that date.
(ii) For the transposition of Articles 18 to 23 of the Copyright Directive,
First, with respect to the principle of “appropriate and proportional” remuneration, the Ordinance supplements Articles L. 131-4 and L. 131-5 of the IPC, which already provided for the principle of proportional remuneration of the author, but adds that the author is entitled to additional remuneration when the proportional remuneration initially provided for in the exploitation contract proves to be unreasonably low in relation to all the income subsequently derived from the exploitation by the assignee.
Secondly, the principle of rendering accounts, provided for the publishing contract under the terms of article L. 132-17-3 of the CPI, is extended to the hypothesis of the transfer by the author of all part of his exploitation rights.
Thirdly, the author has from now on the possibility of terminating by right the contract relating to the transmission of his rights, if they are not exploited.
The same provisions apply to neighboring rights.
UGGC Avocats and its team of specialists in copyright law are at your disposal for any questions you may have on this subject.
By the IP/IT team of UGGC Avocats
Source: Ministry of Culture
https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000043496429
[1] Directive (UE) 2019/790 : https://eur-lex.europa.eu/legal-content/FR/TXT/PDF/?uri=CELEX:32019L0790&from=DA