On July 7 2016 the Bill relating to the Freedom of Creation, Architecture and Heritage was finally passed by Parliament and enacted by the president. The so-called 'Creation Act' has implications for most of the French creative sectors, including the film and TV industries. The changes mainly concern producers, which, since July 9 2016, have been subject to new obligations.
First, French film and TV producers are now legally bound to "look for a continued exploitation [of the work] compliant with industry standards". While the former obligation was to ensure that the exploitation of the work complied with industry standards, producers must now be able to prove that they acted in order for the work to benefit from a continued exploitation.
A new article of the IP Code specifies that the scope and conditions for applying this revised obligation must be defined in a professional agreement between representatives of both authors and producers. This agreement is still under negotiations.
The Creation Act also introduces a new transparency and public audit system for production and exploitation accounts. This covers films and audiovisual works (eg, fiction, animation, documentaries and adaptations of live shows) that benefit from the subsidies offered by the National Centre for Cinema and the Moving Image (CNC), the French public administrative organisation for the film and TV industries.
For these productions, the producer must now:
- set up and forward the production account to several parties, including its co-producers, financiers which benefit from a share of revenues, the main authors and broadcasters which contributed to the financing (for audiovisual works only);
- forward exploitation accounts provided by distributors (which are therefore also subject to a new obligation) to several parties, including the co-producers, financiers which benefit from a share of revenues and the main authors; and
- set up and forward the exploitation accounts to the same parties when the producer directly exploits the work (using one or several media).
In order to ensure that the transparency system is put into place by the relevant parties, the Creation Act also requires that specific clauses recalling the obligations be included in the relevant agreements.
The CNC has also been granted a right to audit both the production account (for a three-year period) and exploitation accounts.
The Creation Act implements changes for TV and radio publishers and distributors which wish to offer customers the possibility of copying the broadcast stream on their servers (mainly via network personal video recorder (nPVR) functions).
According to Article 15 of the new act, the publisher of the TV or radio service and the distributor which wishes to offer a recording or storage service to end users must enter into a specific agreement. This implies that producers may now wish expressly to specify in their agreements with broadcasters and distributors whether they authorise the use of nPVR functions for the exploitation of their content.
Article 15 of the Creation Act further specifies that, in the case of conflict over such an agreement, the Conseil Supérieur de l'Audiovisuel may intervene at the request of the publisher or distributor.
The new act has modified the scope of the private copying levy in order to include nPVRs. However, the levy will apply only if the copying or reproduction is requested by the end user before the programme is broadcast (or during the programme for the remaining part to be broadcast).
For further information on this topic please contact Camille Burkhart 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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