Copyright in France

Legislation and enforcement

What is the relevant legislation?

Copyright in France is mainly governed by two laws: the Law of 11 March 1957 and the Law of 3 July 1985. These laws and all other relevant legislation are codified in the first part of the French Intellectual Property Code (from articles L 111-1 to L 343-7) (IPC).

The copyright law applicable in France also derives from international conventions to which France is a party, such as:

• the Berne Convention for the Protection of Literary and Artistic Works of 1886;
• the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations of 1961;
• the World Intellectual Property Organization (WIPO) Performances and Phonograms Treaty of 20 December 1996 (WPPT);
• the 1995 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), notably on copyright and related rights; and
• the WIPO Copyright Treaty of 1996.

The law of the European Union is also part of the French copyright law where it is implemented into national law. In particular, the 2006 Law on Copyright and Neighbouring Rights in the Information Society (DADVSI) on authors’ rights and related rights in the information society was adopted in France in order to implement EU Directive 2001/29/EC, which itself implemented the WIPO Copyright Treaty of 1996.

Also, Law No. 2015-195 dated 20 February 2015 results from the implementation into French law of Directive 2011/77/EU on the term of protection of copyright and certain related rights.

Who enforces it?

Civil courts

Only a few specifically designated courts throughout France have jurisdiction to hear copyright cases.

Criminal courts

Copyright infringement may also be a criminal offence, so that criminal courts also have jurisdiction to hear copyright cases.

French Customs

Copyright owners may request French Customs to detain goods that infringe their copyright. French Customs detain allegedly infringing goods for up to 10 days. After that deadline, the goods are released unless legal proceedings are brought by the copyright owner.

HADOPI

The High Authority for the Dissemination of Works and Protection of Copyrights on the Internet (HADOPI) is a French governmental agency that enforces copyright law in France. The agency was created in 2009 in order to protect the interests of intellectual property right owners on the internet and implements the method of gradual response to copyright infringement.

Are there any specific provisions of your copyright laws that address the digital exploitation of works? Are there separate statutory provisions that do so?

The Order of 12 November 2014 has adapted the IPC to the digital era. Indeed, the digital aspects of the exploitation of a work have been taken into consideration and introduced to the Code. Notably, Article L 132-1 of the IPC, defining the edition contract now specifically reads that:

A publishing contract is a contract by which the author of a work of the mind or his successors in title assign under specified conditions to a person referred to as the publisher the right to manufacture or have manufactured a number of copies of the work, or to create it or have it created in a digital form.

Once completed, the Digital Single Market reform currently ongoing at the EU level will have a great impact on French provisions relating to the digital exploitation of works (see ‘Update and trends’).

Do your copyright laws have extraterritorial application to deal with foreign-owned or foreign-operated websites that infringe copyright?

Copyright provisions per se do not provide for extraterritorial application of French copyright law. However, further to article 7.2 of Council Regulation (EC) No. 1215/2012, ‘a person domiciled in a Member State may, in another Member State, be sued: in matters relating to tort, delict or quasi-delict, in the courts of the place where the harmful event occurred or may occur’.

Based on this article, and in three different decisions handed down on 22 January 2014, the French Supreme Court ruled that the mere accessibility of the website from the French territory was sufficient to consider that French courts have jurisdiction to hear online copyright infringement cases.

Is there a centralised copyright agency? What does this agency do?

There is no centralised copyright agency in France.

Subject matter and scope of copyright

What types of works may be protected by copyright?

As a matter of principle, all creations are protected by copyright provided they are original. Considerations such as the merit of the author or the purpose of the work, the type of work or the form of expression are irrelevant.

‘Originality’ has been defined by French case law as the expression of the personality of the author. This definition is in line with European case law, which has validated the French broad conception of originality. Therefore, the mere display of skill, labour and judgement is not sufficient; creativity on the part of the author is required.

Article L 112-2 of the IPC provides for a non-exhaustive list of the works that may be protected by copyright law: books and other writings; speeches; musical works; works of fine art such as paintings, drawings or sculptures; photographic and cinematographic works; and plans, maps and sketches.

What types of rights are covered by copyright?

Copyright covers both economic and moral rights.

Pursuant to Article L 122-1 of the IPC, economic rights relate to representation rights as well as reproduction rights.

Representation rights consist of the communication of the work to the public by any means and reproduction rights consist of the physical fixation of a work by any process permitting it to be communicated to the public in an indirect way.

Acts of representation or reproduction of the work carried out without the authorisation of the owner of the rights constitute acts of infringement.

What may not be protected by copyright?

Mere ideas or concepts cannot be the subject of copyright protection and thus may be used freely. It is only the form in which the idea is expressed that can be protected.

Do the doctrines of ‘fair use’ or ‘fair dealing’ exist, and, if so, what are the standards used in determining whether a particular use is fair?

There is no doctrine of fair use or any equivalent general open norm in France. However, Article L 122-5 of the IPC lists exceptions to the exclusive right of the author to reproduce his or her work. Indeed, once a work has been disclosed, the author may not prohibit, for instance:

[Private] and gratuitous performances carried out exclusively within the family circle, parody, pastiche and caricature, observing the rules of the genre or acts necessary to access the contents of an electronic database for the purposes of and within the limits of the use provided by contract.

Are architectural works protected by copyright? How?

As long as their work is original, architects own the copyright. Indeed Article L 112-2 12 of the IPC expressly mentions the plans, sketches and three-dimensional works relative to architecture. For instance, reproduction of a plan without authorisation, in order to build a new building, constitutes infringement.

Law No. 2016-1321 provides for a new exception to copyright infringement pursuant to which individuals are allowed to reproduce or represent architectural works and sculptures located permanently in public places for non-commercial purposes.

Are performance rights covered by copyright? How?

Performance rights are the rights granted to a performer, such as a musician, a dancer or any other person who acts, sings, recites or otherwise performs. In France, these rights are referred to as ‘neighbouring rights’.

Pursuant to Article L 212-3 of the IPC, performers have the exclusive right to authorise all recording, reproduction or communication to the public of their performance. Furthermore, the performer’s permission is required in case of any separate use of the sounds or images of his or her performance where both the sounds and images have been fixed.

There is, however, an exception concerning audiovisual works: the contract concluded between a performer and a producer for the performance of an audiovisual work implies authorisation by the performer to fix, reproduce and communicate this performance to the public.

Are other ‘neighbouring rights’ recognised? How?

The IPC lists two other ‘neighbouring rights’ that are only economic rights:

• the rights of the phonogram producers; and
• the rights of the videogram producers.

Alongside those ‘neighbouring rights’, producers of databases benefit from a sui generis right. Databases are protected for 15 years following their establishment.

Are moral rights recognised?

Moral rights are recognised in France. They are perpetual, inalienable and imprescriptible, and therefore may not be transferred, may not be renounced by the author and must be respected even after the work has entered the public domain. After the death of the author, moral rights are transferred to his or her heirs.

As a result, moral rights belong to the author, even though he or she may have transferred the economic rights to someone else.

Moral rights cover the following prerogatives:

• The right for the author to divulge his or her work.
• The right for the author to have the integrity of his or her work respected. This right allows the author to oppose any modification of his or her work (cuts, for instance) as well as to oppose any modifications that would alter the spirit of his or her work.
• The right for the author to have his or her name indicated on any representation or reproduction of the work. It is called the right of authorship. It should be noted, however, that the author is entitled to remain anonymous or to use a pseudonym.
• The right for the author to reconsider or to withdraw his or her work from the market even after publication, provided that he or she indemnifies the assignee for any harm suffered as a result of the reconsideration or the withdrawal.

Any violation of the moral right of the author constitutes an act of infringement.

Copyright formalities

Is there a requirement of copyright notice?

There is no requirement of copyright notice in France. The protection afforded by copyright is granted automatically from the date of creation of the work.

What are the consequences for failure to use a copyright notice?

See question 14.

Is there a requirement of copyright deposit?

Every publisher, printer, producer, distributor or importer of documents must deposit copies of all published materials in one of the following institutions:

• the French National Library (BNF);
• the National Audiovisual Institute (INA), which manages radio and television;
• the National Cinema Centre (CNC), which is responsible for films; and
• any library authorised by order of the Ministry of Culture.

What are the consequences for failure to make a copyright deposit?

Pursuant to Article L 133-1 of the French Heritage Code, the fine for not complying with the legal deposit is €75, 000.

Is there a system for copyright registration, and, if so, how do you apply for a copyright registration?

There is no system for copyright registration in France.

Is copyright registration mandatory?

See question 18.

What are the fees to apply for a copyright registration?

See question 18.

What are the consequences for failure to register a copyrighted work?

See question 18.

Ownership and transfer

Who is the owner of a copyrighted work?

The owner of a copyrighted work is its author, in other words, the person who created the work. However, the economic rights may be transferred either through inheritance or by a contract, in which cases the beneficiary or the assignee becomes the owner of the copyright.

Under a French legal presumption, the name of the person under which the work was published is deemed to be its author.

May an employer own a copyrighted work made by an employee?

Under French law, without regard to the employment contract that may be in force between an employer and his or her employee, the employee remains the author of his or her work and therefore the owner of the copyright.

The exception to this rule is the collective work. A ‘collective work’ is defined by Article L 113-2 subsection 3 of the IPC as:

[A] work created at the initiative of a natural or legal person who edits it, publishes it and discloses it under its direction and name and in which the personal contributions of the various authors who participated in its production are merged in the overall work for which they were conceived, without it being possible to attribute to each author a separate right in the work as created.

Therefore, the name under which the collective work is published being that of the employer, the employer becomes the owner of the copyright, even though he or she is not the author of the work. The employees will be vested of the moral rights that ensue from the individual part of their creations.

May a hiring party own a copyrighted work made by an independent contractor?

Under French law, without regard to the employment contract that may be in force between an employer and an independent contractor, the creator of a work remains the author and therefore the owner of the copyright, without having to comply with any further formality.

May a copyrighted work be co-owned?

A work may be co-owned whenever it results from the collaboration between two persons.

Article L 113-2 subsection 1 of the IPC defines works of collaboration as works ‘in the creation of which more than one natural person has participated’. In this case, the copyright is co-owned by several natural persons.

Article L 113-3 of the IPC provides that a work of collaboration shall be the joint property of its authors. The authors shall exercise their rights by common accord.

May rights be transferred?

Moral rights are inalienable and may not be transferred.

However, the economic rights of a copyright are transferable either through inheritance or contract.

May rights be licensed?

The economic rights of copyright may be licensed under French law. Under French contract law, licence may not be concluded for a perpetual term and licences with an indefinite duration have been cancelled by French courts.

Whenever the contract is not clear, it will be interpreted in favour of the author by French courts.

Are there compulsory licences? What are they?

The IPC provides for compulsory licences where a phonogram has been published for commercial purposes. Neither the performer nor the producer may oppose its broadcasting or the simultaneous and integral cable distribution of such broadcast, as well as the reproduction of such phonogram strictly reserved for those purposes, carried out for or on behalf of an audiovisual communication enterprise with a view to inclusion in the soundtrack of its own programme broadcast on its own channel or on any channels of audiovisual communication enterprises which pay equitable remuneration (Article L 214-1 of the IPC).

Law No. 2016-925 of 7 July 2016 has extended said regime of compulsory licence to internet radio services.

In compensation, the same provision confers performers and producers rights to remuneration.

Are licences administered by performing rights societies? How?

Performers are free to join any performing rights societies but are under no obligation to. In France, various societies exist, such as:

• SACEM, for musical works;
• SACD, for drama and audiovisual works; and
• SCAM, for multimedia works.

Is there any provision for the termination of transfers of rights?

Under French law, perpetual agreements are prohibited. Therefore, copyright transfer can only be temporary. The transfer agreement has to specify precisely whether the transfer is valid for the whole legal duration of the protection of the copyrighted work or a shorter period.

Can documents evidencing transfers and other transactions be recorded with a government agency?

There is no agency specific to copyright formalities in France.

Duration of copyright

When does copyright protection begin?

Copyright protection starts from the date of creation of the work.

How long does copyright protection last?

Moral rights have no time limit.

Economic rights last for the whole life of the author and shall subsist for his or her successors in title for 70 years. The starting point is 1 January of the calendar year following the death of the author.

In the case of collaboration works, protection is provided for the authors’ entire lives plus 70 years from the death of the last contributor.

Published pseudonymous, anonymous or collective works are protected for 70 years from 1 January of the calendar year following that in which the work was published.

When the protection expires, the work is said to enter the public domain, which means that it can be freely used.

Does copyright duration depend on when a particular work was created or published?

Copyright protection is identical for all types of work and starts from the date of creation of the work.

Do terms of copyright have to be renewed? How?

Terms of copyright do not have to be renewed.

Has your jurisdiction extended the term of copyright protection?

Law No. 2015-195 of 20 February 2015, implementing into French law various provisions of Directive 2011/77/EU on the term of protection of copyright and certain related rights, increased the duration of performers’ rights to 70 years after the communication of the performance to the public or from the publication of the performance.

Copyright infringement and remedies

What constitutes copyright infringement?

Copyright is infringed by a person who, without the authorisation of the author or the rights holder, represents or reproduces the work partially or totally.

The same applies to the translation, adaptation or transformation, arrangement or reproduction by any technique or process.

Copyright may be infringed when the moral right of the author is altered (disclosure, integrity, paternity, withdrawal - see question 13).

Civil liability is strict; there is no requirement for the infringer to have any knowledge or intent to commit the infringement.

Does secondary liability exist for indirect copyright infringement? What actions incur such liability?

The provision that most closely approximates contributory liability is Article L 335-2-1 of the IPC. Thus, the editing, making available to the public or communicating to the public of a piece of software obviously intended to make sound recordings available to the public without authorisation is prohibited and is a criminal offence. The Criminal Code also includes the concept of complicity, which is equivalent to the figure of contributory infringement. The accomplice of a criminal offence (including felonies against copyright) stands for anyone who knowingly abets, facilitates or by means of a promise, threats or abuses of authority, provokes the offence or gives instructions to commit the offence.

What remedies are available against a copyright infringer?

Several remedies are available against a copyright infringer, including in particular:

• award of monetary damages (see question 41);
• injunction (final or preliminary) to refrain from infringing;
• precautionary seizure order of the capital assets and real estate of the alleged infringer (at the pretrial stage);
• injunction to disclose all the information regarding the distribution networks and the quantities of infringing products;
• recall from the trade circuits, destruction or confiscation for the benefit of the victim, of the following elements: the objects made or manufactured in breach of the rights of the victim, the media used to extract unlawfully data from a database, and the equipment predominantly used for the manufacture;
• publication of the judgment (in whole or in part) at the defendant’s costs; and
• award of legal costs.

Is there a time limit for seeking remedies?

The statute of limitations for bringing a copyright infringement claim is five years from the date on which the claimant became aware or ought reasonably to have become aware of the infringing act.

Are monetary damages available for copyright infringement?

Monetary damages are available for copyright infringement. The court must take into account, separately:

• the negative economic consequences of the infringement, including loss of profits and loss suffered by the injured party;
• the moral prejudice caused to the rights holder; and
• the profits made by the infringer, including savings in intellectual investment, equipment and promotion, which the infringer made through the infringing acts.

French law also offers an alternative to the assessment of the damages. Indeed, upon request of the claimant, the court may award damages in a lump sum. This amount shall exceed the amount of royalties that would have been due if the infringer had requested the authorisation to use the right that was infringed. This amount is not exclusive of compensation for the moral prejudice caused to the injured party.

Can attorneys’ fees and costs be claimed in an action for copyright infringement?

Attorneys’ fees and costs may be claimed in an action for copyright infringement. Usually, the attorney will provide the court with an affidavit of the fees invoiced for the whole proceedings. However, in practice and despite the aforementioned affidavit, the sums discretionarily allocated by French courts are low.

Are there criminal copyright provisions? What are they?

Copyright infringement amounts to a criminal offence when committed with malice.

In addition, specific criminal offences exist. For instance, the following are criminal offences:

• For the owner of an access to online public communication service not to have implemented security measures to ensure that such access is not used for the reproduction or communication to the public of works protected by copyright without the consent of the copyright owners, provided that the owner of such access has been advised by HADOPI to implement a security system following a first infringement having taken place less than one year before (articles L 336-3 and R 335-5 of the IPC).
• The editing, making available to the public or communicating to the public of a piece of software obviously intended to make sound recordings available to the public without authorisation (see question 38).
• To hold for private use or use a technological application, device or service aimed at infringing digital rights management (DRM) which protects a work (Article R 335-3 of the IPC).

Are there any specific liabilities, remedies or defences for online copyright infringement?

Several provisions were created to deal with online copyright infringement. Examples follow.

The graduated response regime from the HADOPI

The HADOPI Laws No. 2009-669 of 12 June 2009 and No. 2009-1311 of 28 October 2009 and Decree No. 2013-596 of 8 July 2013 define the mission of HADOPI and provide, among other things, a graduated response regime.

It is a criminal offence for the owner of an access to online public communication service not to have implemented security measures to ensure that such access is not used for the reproduction or communication of works protected by copyright to the public, without the consent of the copyright owners, provided that the owner of such access has been advised by HADOPI to implement a security system following a first infringement having taken place less than one year before (articles L 336-3 and R 335-5 of the IPC).

For internet users who continue to show evidence of infringing activity, HADOPI then selects the files to be reviewed and may ask the relevant internet user to participate in a hearing. Only professionals and legal entities are required to attend said hearing.

HADOPI then renders its decision. It can also send files to the public prosecutor for sanctions if the graduated response regime has not led the illicit acts to be put to an end (fine of up to €1,500).

Prevention of illegal downloading and offer

The presiding judge of the court of first instance can order, under penalty, any measure necessary for the protection of copyright where software is being used mainly to offer copyright-protected works illegally (article L 336-1 of the IPC).

Article L 336-2 of the IPC also provides that, in case of copyright and related rights infringement occasioned by the content of an online communication service to the public, rights holders can ask courts to order ‘all appropriate measures to prevent or stop a copyright infringement against any person who may be likely to contribute to such prevention or termination’.

How may copyright infringement be prevented?

Copyright infringement may be prevented by using a copyright notice or implementing technical protection measures.

Article L 331-5 of the IPC provides that DRM consists in technical technologies or devices aiming at preventing or limiting the unauthorised uses. DRM must not prevent the users from benefiting from the exception for private copying and users shall be informed of their use.

Moreover, it is a criminal offence to hold for private use or use a technological application, device or service aimed at infringing a useful DRM which protects a work (fine of up to €750) (article R 335-3 of the IPC).

Relationship to foreign rights

Which international copyright conventions does your country belong to?

France is signatory of the following international copyright conventions:

• the Berne Convention for the Protection of Literary and Artistic Works of 1886 (the Berne Convention);
• the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations of 1961;
• the World Intellectual Property Organization Performances and Phonograms Treaty of 20 December 1996;
• the Agreement on Trade-Related Aspects of Intellectual Property Rights of 1995, notably on copyright and related rights; and
• the World Intellectual Property Organization Copyright Treaty of 1996.

What obligations are imposed by your country’s membership of international copyright conventions?

International copyright conventions impose the obligation of national treatment, which is a rule of non-discrimination requiring France to extend copyright protection to non-French nationals on the same terms as it does to its nationals.

The Berne Convention provides that the enjoyment and the exercise of copyright shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. There are also consequences in terms of duration of protection. Indeed, pursuant to the Berne Convention, if a contracting state provides for a longer term than the minimum prescribed by the Convention and the work ceases to be protected in the country of origin, protection may be denied once protection in the country of origin ceases.