On December 5, 2019, France published its draft law on audiovisual communication and cultural sovereignty in the digital age (« Projet de loi relatif à la communication audiovisuelle et à la souveraineté culturelle à l'ère numérique », the "Draft Law") which, amongst many other reforms to the audiovisual sector, will serve to transpose the highly controversial Article 17 of the EU Copyright Directive, adopted in April 2019.
The French government is keen to be the first EU Member State to implement Article 17 – just as it was the first country to implement Article 15 of the Directive, in July 2019, with its law to create a neighbouring right for the benefit of press agencies and publishers (
The text of the Draft Law (Articles 16 and 17), which will amend the French Intellectual Property Code (CPI), remains largely faithful to Article 17 of the Copyright Directive and much of what is vague in the Directive remains abstruse and subject to interpretation under the Draft Law. Nonetheless, there are some differences. The key highlights and provisions of interest include:
- Scope: An online content-sharing service provider ("OCSSP") that provides users in France unauthorised access to protected works will be subject to French civil and criminal jurisdiction, irrespective of the place of broadcast or the OCSSP’s country of establishment. (See Section 5.2.2 of Government’s Impact Study.)
- Definition OCSSP: Like the Copyright Directive, the Draft Law definition of "online content-sharing service provider" (in French a fournisseur d’un service de partage de contenus en ligne), requires that the OCSSP make available a large amount (« quantité importante ») of protected works, which are then organised and promoted by the service provider, for its direct or indirect profit. The explicit reference to "indirect" profits has been added by the Draft Law (it is referred to in Recital 62 of the Copyright Directive). The Draft Law also provides that the evaluation of the quantity of protected works will take into account the number of files uploaded by users, the type of files and the audience of the OCSSP. The specific modalities for establishing the quantity and quality of protected works will be defined by decree (not yet published). (New Article L.137-I-I of the CPI).
- Authorisations: The Draft Law affirms that providing access to copyrighted works constitutes an act of representation for which authorisation from the copyright holder is required. Similarly, the making available by an OCSSP of works protected by neighbouring rights constitutes an act of exploitation for which authorisation from the rights holder is also required. Authorisations obtained from rights holders for such acts of representation or exploitation are without prejudice to the (separate) authorisation required for the reproduction of protected works. (Articles 137-2-I and Article 219-2-I)
- Form of Authorisation: Whereas Article 17(1) of the Copyright Directive cites licensing agreements as an example of an acceptable form of authorisation, the Draft Law takes a slightly different approach and includes repeated references to the "contracts" that provide the authorisations to OCSSPs. Such contracts are deemed to authorise the acts of representation by users of the content-sharing service provided the use is non-commercial. "Authorisation" is thus implicitly linked to having a "contract".
- eCommerce Directive Hosting Defence: The hosting defence provided by the French loi n°2004-575 du 21 juin 2004 pour la confiance dans l’économie numérique (transposing Article 14 of the eCommerce Directive) is not applicable to the acts of exploitation of protected works by an OCSSP and an OCSSP will be liable for unauthorised exploitation of protected works. There is no change from the Copyright Directive in this regard. However, whereas Article 17(8) of the Directive states that application of the Article will not result in a general monitoring obligations, the Draft Law is silent regarding general monitoring.
- New Liability Regime: The alternative limitation of liability regime set out in the Draft Law (Article L.137-2-III and Article 219-2-III) is essentially the same as that set out at Article 17(4) of the Copyright Directive. There is no elaboration of what will constitute best efforts (« meilleurs efforts ») to obtain authorisation or prevent uploads, nor is there any elaboration of the concepts of "necessary and relevant information" (« informations pertinentes et nécessaire ») and "sufficiently substantiated notice" (« notification suffisament motivée »). The concept of best efforts is not a traditional concept under French law. It is generally interpreted by French courts as an obligation of means, not results.
- Interestingly, the Draft Law provides that to benefit from the limitation of liability regime, the OCSSP must act promptly to remove infringing content from its "service" whereas the Copyright Directive only refers to the OCSSP’s "websites".
- Start-Ups: The Copyright Directive provisions for OCSSPs less than 3 years old and with revenues under €10m in the preceding year, are repeated in the Draft Law. However, an OCSSP that seeks to rely on the provisions must produce evidence of its audience numbers and revenues. The Draft Law does not specify what form of evidence will be acceptable.
- User Protections: Users of a content-sharing service must have access to a complaint resolution process that shall be rapid and efficient, without undue delay (Article L.137-4). No additional requirements are specified.
- The Regulator: Rights holders and users may escalate complaints to a new French regulator, ARCOM (Article L.137-4-III). ARCOM will have responsibility for evaluating the measures adopted by OCSSPs in accordance with the new Article L.137-I of the CPI. To that end, OCSSPs must provide ARCOM with a yearly report that describes how they have been cooperating with rights holders, and that also provides details to the measures adopted to prevent unauthorized use of protected content. ARCOM is entitled to obtain all the information that it requires to perform its mission from OCSSPs, rights holders and developers of protective measures.
Notwithstanding the government’s own consultation process, the Draft Law has been released prior to the final session of stakeholders’ dialogue organized by the European Commission on the application of Article 17 of the Copyright Directive, which is scheduled to take place on February 10, 2020. The Commission will use the information obtained during the stakeholder discussions to prepare its guidance on the implementation of Article 17. It remains to be seen how the French government will take account of this guidance.
In any event, the Draft Law is at the very beginning of its adoption process and its review by Parliament has been postponed until spring 2020. The text is therefore not final and will certainly be amended several times before its adoption.
We’ll be following the progress of the law. If you have any questions or would like to discuss in the meantime, please do not hesitate to contact the Bredin Prat Tech team (email@example.com).