Copyright law of France: Difference between revisions
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The general rule is that the proprietary rights of the author last for seventy (70) years after his or her death (Art. L123-1), or for one hundred (100) years after the author's death if the author is declared to have died on active service (''Mort pour la France'') (Art. L123-10). The author is deemed to have died on [[31 December]] of the year of death. |
The general rule is that the proprietary rights of the author last for seventy (70) years after his or her death (Art. L123-1), or for one hundred (100) years after the author's death if the author is declared to have died on active service (''Mort pour la France'') (Art. L123-10). The author is deemed to have died on [[31 December]] of the year of death. |
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Before February 2007, the periods of [[World War I]] and [[World War II]] were not taken into account for the determination of the expiry date of proprietary rights, with peculiar ways of counting these (Arts. L123-8 & L123-9). These exceptions applied to works published before the wars, and must be added whatever the date of the author's death. These extensions were removed by the |
Before February 2007, the periods of [[World War I]] and [[World War II]] were not taken into account for the determination of the expiry date of proprietary rights, with peculiar ways of counting these (Arts. L123-8 & L123-9). These exceptions applied to works published before and during the wars, and must be added whatever the date of the author's death. These extensions were removed (for non-musical works) by the Court of Cassation (Supreme Court) in February 2007.<ref>http://www.courdecassation.fr/jurisprudence_publications_documentation_2/actualite_jurisprudence_21/premiere_chambre_civile_568/arrets_569/br_arret_9940.html</ref>, . They still have to be added to the 70 years delay for musical works, because of a 1985 law. |
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For collaborative works, the date of death of the last collaborator serves as the reference point for the 70 year ''post mortem auctoris'' period (Art. L123-2). Audiovisual works are treated similarly, although the list of collaborators is defined by the law: scriptwriter, lyricist, composer, director. |
For collaborative works, the date of death of the last collaborator serves as the reference point for the 70 year ''post mortem auctoris'' period (Art. L123-2). Audiovisual works are treated similarly, although the list of collaborators is defined by the law: scriptwriter, lyricist, composer, director. |
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Revision as of 22:55, 19 November 2007
The droit d'auteur (or French copyright law) developed in the eighteenth century at the same time as copyright developed in the United Kingdom. Based on the "right of the author" (droit d'auteur) instead of on "copyright", its philosophy and terminology are different from those used in copyright law in common law jurisdictions. It has been very influential in the development of copyright laws in other civil law jurisdictions, and in the development of international copyright law such as the Berne Convention.
French copyright law is defined in the Code de la propriété intellectuelle, which implements European copyright law (directives). Unless otherwise stated, references to individual articles are to the Code de la propriété intellectuelle. Two distinct sets of rights are defined:
- Proprietary rights (droits patrimoniaux)
- Moral rights (droits moraux)
The controversial DADVSI act is due to reform French copyright law in Spring 2006. This law, voted by the French Parliament on June 30, 2006, implements the 2001 EU Copyright Directive; however, there existed considerable differences of opinion as to how to implement the directive, in many respects.
On 8 December 2005 the Tribunal de grande instance de Paris concluded that file sharing through peer-to-peer was not a crime [1]. The judgment was based on the right to "private copy" described in the Intellectual Property Code which includes the use of digital media [2].
On 7 March 2006, however, the National Assembly passed the DADVSI Act which implemented - with some modifications - the 2001 European Union Copyright directive. The DADVSI act makes peer-to-peer sharing of copyrighted works an offense. It does, however, allow for sharing of private copies of tape recording and other media.
History
The concept of "right of the author", which differs from Anglo-Saxon copyright, finds its roots in the 1789 French Revolution. Beaumarchais' and Sieyès' 1791 tentatives result in the July 19, 1793 Chénier Act. The July 14, 1866 Act proroges the rights until fifty years after the death of the author. Three years of debate modernized the law by the March 11, 1957 Act. In March 2006, the controversed DADVSI Act, which implements - including modifications - the 2001 EU Copyright directive is voted by the National Parliament [1].
Protected works
The criterion for protection of a work under French copyright law is that it be an œuvre d'esprit, a work of the mind (Art. L112-1). Hence there must be a human intellectual contribution to the work. A list of types of work which are protected is given in Art. L112-2: this list (taken from the Berne Convention) is not limitative.
The copyright protection of computer programs was, and to some extent still is, the subject of much debate in France. The legal position was resolved by the transposition of May 14, 1991 EU Directive into French law: computer programs and any associated preparatory works qualify for copyright protection in France as in other European Union jurisdictions. Databases are protected by a related sui generis right.
The term "author" is used to designate the original creator(s) of any type of protected work, e.g., the artist, photographer, director, architect, etc. Where the author cannot be identified, e.g., for anonymous works and collective works, the copyright is exercised by the original publisher.
Proprietary rights
The proprietary rights of the author allow him or her to exploit the work for financial gain. The author has the right to authorize the reproduction of the work (droit de reproduction) and to allow its public performance (droit de représentation): he or she may also prevent the reproduction or public performance.
The author may transfer his or her proprietary rights to a third party.
Duration of proprietary rights
The general rule is that the proprietary rights of the author last for seventy (70) years after his or her death (Art. L123-1), or for one hundred (100) years after the author's death if the author is declared to have died on active service (Mort pour la France) (Art. L123-10). The author is deemed to have died on 31 December of the year of death.
Before February 2007, the periods of World War I and World War II were not taken into account for the determination of the expiry date of proprietary rights, with peculiar ways of counting these (Arts. L123-8 & L123-9). These exceptions applied to works published before and during the wars, and must be added whatever the date of the author's death. These extensions were removed (for non-musical works) by the Court of Cassation (Supreme Court) in February 2007.[2], . They still have to be added to the 70 years delay for musical works, because of a 1985 law.
For collaborative works, the date of death of the last collaborator serves as the reference point for the 70 year post mortem auctoris period (Art. L123-2). Audiovisual works are treated similarly, although the list of collaborators is defined by the law: scriptwriter, lyricist, composer, director.
Proprietary rights in pseudonymous, anonymous or collective works last for seventy (70) years after the date of publication (Art. L123-3).
For phonographic works, the proprietary rights last for fifty (50) years after the date of recording.
In addition, posthumous works are copyrighted 25 years from the year of publication.
Copyright management societies
- See also: External links
As in other countries, there are a number of societies which collectively manage the licensing of different types of work and the collection of royalties on behalf of copyright holders. These societies typically operate as associations, and are regulated by the Code de la propriété intellectuelle (Arts. L321-1 to L321-13) and the Ministry of Culture. The most important are:
Moral rights
French copyright law treats a protected work as an extension of the personality of the author which is protected by a certain number of moral rights. In general, the author has the right to "the respect of his name, of his status as author, and of his work" (Art. L121-1). The following rights are usually recognised:
- right of publication (droit de divulgation): the author is the sole judge as to when the work may be first made available to the public (Art. L121-2).
- right of attribution (droit de paternité): the author has the right to insist that his name and his authorship are clearly stated.
- right to the respect of the work (droit au respect de l'intégrité de l'oeuvre): the author can prevent any modification to the work.
- right of withdrawal (droit de retrait et de repentir): the author can prevent further reproduction, distribution or representation in return for compensation paid to the distributor of the work for the damage done to him (Art. L121-4).
- right to protection of honour and reputation (droit à s'opposer à toute atteinte préjudiciable à l'honneur et à la réputation).
The moral rights of the author may conflict with the property rights of the owner of the work, for example an architect who tries to prevent modifications to a building he designed. Such conflicts are resolved on a case by case basis, and recent jurisprudence has led to a weakening of certain moral rights (notably the right to the respect of the work).
The moral rights are inalienable, perpetual and inviolable. They pass to the author's heirs or executor on the author's death, but may not be otherwise transferred or sold under any circumstances, by either the author or his legal successors. Any agreement to waive an author's moral rights is null and void, although the author cannot be forced to protect his work.
The public domain under French copyright law
A work enters the public domain (domaine public) once the proprietary rights over it have expired. It may then be used without charge, so long as the moral rights of the author are respected. Notably, the name of the author and the original title of the work must be cited.
Exceptions
Art. L122-5 defines the exceptions to French copyright law, which are relatively restricted.
Once a work has been published, the author cannot prevent:
- 1. Private family performances.
- 2. Copies for the private and personal use of the copier. This provision does not apply to works of art, computer programs (where a single safeguard copy is allowed, Art. L122-6-1-II) and databases.
- 3. In cases where the name of the author and the source are clearly indicated,
- a) Analyses and short citations justified by the critical, polemical, scientific or pedagogical nature of the work.
- b) Press reviews.
- c) Diffusion of public speeches as current news.
- d) Reproductions of works of art in catalogues for auctions in France (subject to regulatory restrictions).
- 4. Parody, pastiche and caricature, "taking into account the usage of the genre".
- 5. Acts necessary to access a database within the limits of the agreed use.
There is no specific provision for government works or laws: the copyright is normally held by the relevant public body.
Penal measures
Contrary to the position in most Common Law jurisdictions, the breach of proprietary rights is a criminal offense in France: contrefaçon (Arts. L335-2 to L335-4). This attracts a fine of up to 300000 EUR and a term of up to three (3) years imprisonment. These penalties are increased to a fine of up to 500000 EUR and a term of up to five (5) years imprisonment if the offense is committed in an organized group (bande organisée). There is no distinction between the breach of French copyright and the breach of foreign copyright, though the breach must occur in France to be punishable. The import of infringing copies into France, and the distribution of such copies, are punished under the same provisions and are subject to the same penalties.
Relation to international copyright law
Under Art. 55 of the Constitution of 1958, a ratified treaty is superior to French domestic law. Hence the conflict of laws provisions of the Berne Convention will be used in determining the applicability of the French Code de la propriété intellectuelle.
References
Much of this article is based on the article "Droit d'auteur" in French Wikipedia.
See also
- Copyright law of the European Union
- December 22, 2005 last-minute amendments legalizing peer-to-peer exchanges in the frame of the DADVSI Act implementing the 2001 EU Copyright Directive
External links
- Code de la propriété intellectuelle (official site, in French)
- French Intellectual Property Code (semi-official translation)
- French Intellectual Property Code (WIPO translation)
- Siffloter "L'Internationale" peut coûter cher, Le Monde, 9.04.05 The music to The Internationale will remain under copyright in France (but not in the USA) until 2014.