France adopts Art. 17 of the EU's Directive on Copyright and Related Rights in the Digital Single Market

By Emmanuel Legrand

The French government's Council of Ministers has adopted the ordinance transposing Article 2/6 and Articles 17 to 23 of the Directive on Copyright and Related Rights in the Digital Single Market. The text adopted is very close to the original text of the Directive and "marks a major step forward in favour of the protection of creators and cultural industries in the digital age," according to a statement from the government. 

  The French government made the choice to implement the Directive by ordinances, rather than through a vote in Parliament, to speed up the process. The transposition by ordinance of the Directives was authorised by the National Assembly and the Senate in October 2020.

  The ordinance was presented by Minister of Culture Roselyne Bachelot (pictured, above) on May 12, 2021. The government said that the ordinance will "allow creators, either to be remunerated by the sharing platforms which massively distribute their works, or to obtain the application of effective preventive measures guaranteeing the unavailability of unauthorised content, while providing greater legal certainty and new rights for users."

A major step forward

  Bruno Lion, Chairman of the Board of Directors of French music rights society SACEM, said the transposition of the Copyright Directive was "a major step forward" in providing a legal framework "to protect the rights of creators and to hold digital platforms accountable."

  SACEM said the transposition of the Directive in France "will now make it possible to empower online platforms offering cultural goods for commercial purposes and thus rebalance the sharing of value to the benefit of the creators of these works."

  The government added that the adoption of the Directive will "strengthen the capacity of rights holders to be remunerated by online content sharing platforms" and "improves the protection of the rights of authors and performers in their work."

Reinforcing the right to remuneration

  The government also added that the Directive "enshrines the principle of appropriate and proportional remuneration, reinforces transparency obligations for the benefit of authors and artists and opens up new rights for them in relations with users of content."

  In particular, the ordinance "reinforces the implementation of the right to proportional remuneration in the audiovisual sector and the guarantee of minimum remuneration for performers for the streaming of their performances."

  French rights society Adami, which collects neighbouring rights on behalf of performers, welcome the final version of the text, which includes the principle of proportional remuneration for the use of performer's works. "The basis for adapting [performers] remuneration to the digital world has finally been laid," said Adami in a statement.

Participating in negotiations

  It added: "For the music sector, the government provides for proportional remuneration to be negotiated within the framework of 'the guarantee of minimum remuneration' established by the 'Freedom of Creation' law of 2016. By modifying this provision, the ordinance allows collective management organisations to take part in the negotiations."

  Adami said it has already agreed to participate, alongside performers' unions, to the negotiations on remuneration.

  The ordinance will be supplemented by the adoption of two other ordinances transposing the last provisions of the Directive, as well as those of Directive 2019/789 known as the Cab-Sat Directive, establishing rules on copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes.

Obligation of transparency

  Article 2/6 updates the definition of what is a "provider of online content sharing services," in that these services' main objective or primary purposes "is to store and give the public access to a significant amount of copyrighted works or other copyrighted material that has been uploaded by its users, which it organises and promotes for lucrative purposes."

  The definition excludes non-profit online encyclopedias, non-profit educational and scientific directories, free software development and sharing platforms, providers of electronic communications services, online marketplaces, business-to-business cloud services and cloud services which allow users to upload content for their own use.

  Articles 17 to 23 relate to the use of protected content by providers of online content sharing services; the principle of appropriate and proportional remuneration; the obligation of transparency on the exploitation of works; mechanism of adaptation of contracts; and extra-judicial procedure for settling disputes.

Delays in Germany

  Meanwhile, in Germany, the final draft transposing the Directive was expected to be presented before the Bundestag (Parliament) this coming week, but the law has not been added to the agenda of the Parliament.

  Sources in Berlin suggest that the recent letter sent to policy-makers at the Bundestag and to the government by some 1,500 artists has triggered reactions to a point that ruling party SPD is planning to address some of the issues raised in the letter. However, the new draft from the Ministry of Justice has not been circulated among rights holders.

  "We are not quite sure yet which changes are actually being discussed, we only know that the draft is not finalised yet. So there is still hope that there will be movement into our direction," said a representative from rights holders.

Assessing the changes

  Industry sources suggested that the bill could be introduced in the week starting June 7. "The law was already presented in the Bundestag and also heard in the legal committee so actually the governing parties have to assess if and what they would change with regards to the existing concerns. And then they vote it through. It seems highly unlikely that they will stop the whole project," explained another executive.

  "We do not expect significant changes beyond minor concessions that will be made, but it is impossible to say which," said a creative industry source.