Introduction
Net neutrality
Data portability
Video game competitions
New copyright exception
Comment
One year ago the French government launched a new democratic experiment: an online public consultation on the draft bill on the 'Digital Republic'. From September 25 to October 18 2015 internet users were invited to indicate whether they agreed or disagreed, or were uncertain, about the different provisions, as well as commenting on or proposing amendments or additions to the draft. The government then integrated some of this feedback into the final draft. The amended draft was introduced before Parliament and the 'classic' (although fast-tracked) democratic process resumed, leading to numerous new amendments and important modifications of the text.
On September 28 2016 the compromised final version of the text was definitively adopted by the French Parliament. This update examines some of the key provisions which might affect the media and entertainment industry.
The EU Net Neutrality Regulation (2015/2120) was finally adopted in November 2015. The act expressly takes the regulation into account by confirming that providers of public communication networks and electronic communication services to the public are bound by the net neutrality rules, as defined by the regulation.
The act also extends the field of competence of ACERP, the French electronic communications regulator, to the enforcement of the net neutrality principles. On August 30 2016 the Body of European Regulators for Electronic Communications (BEREC) issued its Guidelines to National Regulatory Authorities on the implementation of net neutrality.
One of the main principles enshrined in the regulation is the prohibition of discrimination in terms of bandwidth allocation – for example, between different types of online service, which in particular might affect video and music services requiring large bandwidth. One notable exception is the possibility to offer and facilitate, under certain conditions, optimised services dissociated from general internet traffic.
The act goes further than the new EU General Data Protection Regulation, which is limited to personal data. The act establishes a broad right for consumers to retrieve (and transfer):
- all of the files that they have uploaded;
- all data available to them and resulting from the use of their account, except for data which has been "significantly enriched" by the online service provider; and
- "other data" associated with the consumer's account and which allows or facilitates switching providers, or permits access to other services.
For example, consumers should have the right to easily retrieve and transfer media content that they have uploaded, but probably also playlists that they have created or third-party 'public' playlists that they have used (as such data may be covered by the broad expression "data resulting from the use of their account", but is subject to the potential copyright protection of the playlists). Forms of insignificant enrichment and other data will be determined by governmental decrees.
This new right for consumers will affect only service providers which have had more active users during the past six months than a threshold to be determined by governmental decree.
The act sets down a framework for video game competitions, which were previously subject to the general legal prohibition on 'lotteries' (ie, any public operation that induces the hope of an earning which is subject to pure chance and where a financial contribution from the participants is requested).
According to the new provisions, the prohibition of lotteries shall not extend to video game competitions which require the physical presence of the participants if the total amount of the participants' financial contributions does not exceed a percentage of the overall organisation's cost, including prizes (the percentage is to be determined by governmental decree). In addition, the governmental decree will set a maximum figure for prizes, above which promoters will have to demonstrate the existence of a mechanism guaranteeing the actual and full redistribution of such prizes.
Video game competitions will have to be declared to – but need not be authorised by – an administrative authority.
The act creates a new status of "professional salaried player of competitive video games". Employers of such players will have to obtain specific administrative accreditation and their employment contracts will be fixed-term contracts of at least 12 months' duration (except in certain situations where the contract is concluded mid-season).
The act introduces a new exception to copyright, known as the 'freedom of panorama'. This provides that reproductions and representations of architectural or sculptural works permanently situated in public areas need not be authorised by the rights holders. However, the provision applies only to uses made by natural persons for non-commercial purposes.
The act contains other significant provisions, such as:
- transparency and loyalty obligations for 'online platforms' (eg, marketplaces and online classified ads);
- a section on data protection (which anticipates the General Data Protection Regulation);
- a section on open administrative data; and
- an exception for text and data mining for research purposes.
The act will still require certain clarifications – which will hopefully be introduced by governmental decrees – in order to be effective in practice, particularly in regard to data portability.
For further information on this topic please contact Sylvain Naillat at Nomos by telephone (+33 01 43 18 55 00) or email ([email protected]). The Nomos website can be accessed at www.nomosparis.com.