The Copyright Directive (“the Directive”) came into force on 7 June 2019. Member States now have two years to implement it. Amongst the key provisions, Article 15 (former Article 11) creates neighbouring rights for press publishers (see here for an in-depth analysis by DSM watch). In this article we look at the implementation of the new right for press publishers in France.
The implementation of Article 15 is currently being discussed at the French Parliament. The process is close to reaching the finish line as the Parliamentary Bill (of which the latest provisional version, entitled “Proposition de loi tendant à créer un droit voisin au profit des agences de presse et éditeurs de presse” is available here) has already been enacted by the French National Assembly and should now only be subject to a final review by the Senate.
The remarkable speed with which French institutions intend to implement Article 15 lies in the fact that the first introduction of a Bill creating neighbouring rights for press publishers before the French Parliament dates back to September 2018. Discussions about the text have since then been postponed, as the French government wished to make sure that the national law would be in line with the final terms of the Directive.
During the most recent discussions at Parliament, and in line with the intent to stick to Article 15, the duration of protection was reduced from five to two years. Specific exceptions were also introduced into the French Bill regarding (i) acts of hyperlinking and (ii) use of individual words or very short extracts of a press publication. The exact meaning and wording of “very short extract” was very much discussed between members of Parliament (“MPs”). Some MPs suggested clarifying further the exemption by limiting its application to a strict number of words that would be legally defined. This suggestion was rejected fearing that it may harm the protection’s efficiency, as for example a newspapers’ headline which is obviously short may still deserve protection. MPs finally agreed that “very short extracts of a press publication” shall mean extracts which cannot replace full reading of the publication itself and do not exonerate readers from a full reading of the press article.
Further, MPs also specified that the compensation to be paid by online information service providers to press publishers shall be calculated upon both direct and indirect profits generated from the exploitation of the work. In view of this, it should be possible to take into consideration the revenues derived from adverts or from the sale of connection data to determine the compensation to be paid. In that respect, MPs also discussed the creation of an ad hoc committee which would be in charge of reaching compromises between online information service providers and press agencies / editors should the negotiation about the compensation fail. This provision is still under discussion.
The Bill provides that the authors of works included in the publications (including photographs and videos) shall receive an appropriate and equitable share of the compensation owed to press agencies and editors. This share and its distribution shall be defined by a company-wide or industry-wide agreement to be concluded between journalists and press agencies / editors. Should the parties not manage to reach an agreement within a 6-month time period as from the publication of the Law, the Bill creates a committee in charge of reaching a compromise deal. The committee would be composed of a state agent as well as representatives of press agencies /editors on one hand, and authors on the other hand.
In compliance with Article 19 of the Directive and the transparency principle, the Bill provides that online information service providers must duly inform the press publishers of the uses that are made of their publications and provide them with all elements necessary to make a clear assessment of the compensation due. Similarly, the press publishers are required to provide authors with up-to-date, relevant and comprehensive information regarding the conditions of calculation of the appropriate and equitable compensation that they receive.
The Bill should be finally voted and adopted by the French parliament during this summer.