For a number of years the cultural industries have been eagerly anticipating the bill on creation and the Internet. While the bill was initially designed to deal with the development of digital exploitation, frequent and numerous modifications have been made to its outline and scope. The new minister for culture has now finalised the bill, which is now being considered by the National Assembly.
The bill comprises 46 clauses and is divided into three sections covering:
- freedom of creation;
- cultural heritage; and
- promotion of architecture.
The proposed bill is intended to be cross-disciplinary. It includes symbolic provisions such as Clause 1, which reaffirms the principle of artistic freedom in response to the killing of the employees of Charlie Hebdo. It contains a broad spectrum of provisions, ranging from the creation of a designation for contemporary art collections to clauses intended to increase access for disabled individuals and to combat fraud and the trafficking of cultural property.
The bill specifically seeks to regulate contractual relations in two entertainment sectors.
Regarding cinema, the bill takes into account the need for increased transparency as demonstrated by various reports. In view of agreements concluded between professional organisations, it asserts the obligation to transfer accounts and strengthens the control mechanisms of film projection revenues.
Regarding music production, several provisions have been included with the objective of "sharing value in online music". Under the bill, the following will apply to contracts between artists and producers:
- a format based on the same rules that apply to contracts with authors (concerning the transfer of rights or the impact of the existence of an employment contract); and
- new remuneration rules which will require remuneration to be distinguished by the type of exploitation, with provision being made for remuneration in proportion to revenues for unexpected or unforeseen exploitation.
In particular, the bill requires physical and digital exploitations to be distinguished, which seems contrary to the evolution of practice and exploitation.
The bill also provides for a new accountability obligation, for which the producer is responsible, and states that a performer can take action in the event of any "abuse in the failure to exploit any rights transferred to the producer".
The key original feature of the bill is the establishment of a music mediator. This would be an independent administrative authority to which contractual disputes between producers of phonograms, performers, online music services or producers of live shows could be referred. The mediator would also be encouraged to promote the conclusion of agreements and codes of practice among professionals.
This provision has been criticised by professionals – not least on the grounds of its inadequacy regarding the internationalisation of contractual relations and the major role of foreign stakeholders. Nonetheless, conciliation is not a mandatory prerequisite before referral to a judge.
Further, the Ministry of Culture has already appointed a mediator to deal with the digital exploitation of music in order to ensure fair contractual usage and remuneration for all parties in respect of digital exploitation. This appointment is expected to be taken into account in discussions on the bill.
The bill appears to be the first step in a comprehensive reform process, as it sets out a number of powers to be legislated for by decree, particularly in terms of the transposition of the EU Collective Rights Management Directive.
The discussion process before the National Assembly and Senate will lead to a variety of amendment proposals, which industry professionals should monitor closely.
For further information on this topic please contact Eric Lauvaux at Nomos by telephone (+33 01 43 18 55 00) or email (firstname.lastname@example.org). The Nomos website can be accessed at www.nomosparis.com.
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