French law n°2015-195 of 20 February 2015, transposing EU law on aspects of intellectual property and cultural heritage (“Law of 20 February 2015”), is part of an effort to strengthen the protection and promotion of French and European cultural heritages, in particular in terms of related rights.
The Law of 20 February 2015 transposes directive 2011/77/EU on the term of protection of copyright and certain related rights (“Directive 2011/77/EU”), directive 2012/28/EU on certain permitted uses of orphan works (“Directive 2012/28/EU”) and directive 2014/60/EU on the return of cultural objects unlawfully removed from the territory of a Member State (“Directive 2014/60/EU”).
1. Transposition of Directive 2011/77/EU
The amendments made to Article L.211-4 of the French Intellectual Property Code, on the term of protection of related rights, are the most remarkable contributions of the Law of 20 February 2015.
Related rights apply to certain categories of people who are not authors but whose creative contribution to a work justifies the granting of protection. Related rights apply to (1) performers, (2) producers of phonograms and videograms, namely any natural or legal person who first provided the fixation of a sound or image sequence protected by a copyright and (3) broadcasting companies.
The principal amendments brought by the Law of 20 February are as follows:
- A 20-year extension of the term of protection of some related rights.
In case a work protected by copyright is made available to the public, or broadcast, the term of protection of 50 years is extended to 70 years for performers whose interpretation is recorded on a phonogram and for producers of phonograms.
- Introduction of an additional yearly compensation, during the 20-year extension term, for those performers remunerated on a lump-sum basis by producers of phonograms in exchange for the assignment of their rights.
This additional remuneration amounts to 20 % per year of the total revenue received by the phonogram producer for the exploitation of the phonogram containing the authorized sound fixation. However, the producers of phonograms with fewer than 10 employees and with a turnover or annual balance sheet amounting to less than €2 million can be exempted from this additional remuneration.
- Introduction of the possibility for a performer whose work is insufficiently exploited by a phonogram producer during the term extension, to terminate the agreement whereby the performer assigned his/her rights to the producer.
This is known as a “use it or lose it” system of protection.
The transposition into French law of Directive 2011/77/EU presents the following benefits :
- For performers, the extension of the term of protection of related rights will prevent having the protection expire during the performers’ lifetime, thereby depriving them of remuneration and of the possibility to object to the use of their work.
- For the producers of phonograms, the extension of the term of protection of related rights will bring about a better return on investment. This will hopefully promote the emergence of new artists.
- The additional yearly remuneration and the possibility of termination granted to performers may well pave the way for more balanced contractual relationships between performers and some of the bigger producers, which often prove to be lopsided.
Of particular interest is that the starting point of the protection of related rights, as from January 1 st of the calendar year following the date when the work is made available to the public or broadcast, is more favorable than what was provided by the Directive 2011/77/EU which set out that the protection should be granted as from either of these two events, whichever is the earlier. France therefore goes beyond EU protection requirements in this respect.
However, if the work is not broadcast nor made available to the public, the term of protection remains unchanged, i.e. 50 years as from January 1st of the calendar year following the date when the work was first interpreted or fixed on a phonogram. This 50-year term protection also remains applicable to performers whose interpretations are recorded on a videogram, to the producers of videograms and to broadcasting companies who remain out of the scope of the extension of the term of protection.
2. Transposition of Directive 2012/28/EU
The Law of 20 February 2015 also transposes Directive 2012/28/EU, which provides how, under certain conditions, an orphan work can be used and made available to the public. Orphan works are those works still under protection of a copyright but whose rightsholder –provided diligent searches have been conducted - could not be identified or located in order to obtain authorization for the exploitation of the work. Public libraries will mainly benefit from these provisions allowing them to make available to the public electronically orphan works contained in their archives. This opens up the possibility to exploit works that otherwise would have been left aside.
3. Transposition of Directive 2014/60/EU
The transposition of Directive 2014/60/EU into French law has introduced provisions in the French Code of Cultural Heritage aiming at facilitating the restitution of cultural objects considered by a Member State to be national treasures and which have unlawfully been removed from its territory since 1993. A system of cooperation between Member States has been set up so that the relevant cultural object’s location can be identified, as well as its owner, possessor or holder. The system also provides how to conduct return proceedings.