Who: French Government
Where: Paris, France
When: July 2016
Law stated as at: January 2017
What happened:
Traditionally, French owners of buildings or historical structures did not have an exclusive right over the images thereof, and could not prevent the mere taking of pictures or videos in itself unless they could prove accompanying illicit or infringing actions (such as violation of privacy, degradation, negative impact on the peaceful use and enjoyment of the location, or unfair competition).
However, this principle is today at risk of being seriously undermined by the recent French Act No. 2016-925 of 7 July 2016 on “Freedom of creation, architecture and cultural heritage” (“Loi relative à la liberté de la création, à l’architecture et au patrimoine”).
Indeed, this Act:
- creates the concept of “national estate” (“domaine national”), defined as a property complex having an exceptional link with French Nation history and which is owned, at least in part, by the French State (Article L621-34 of the French Heritage Code);
- provides that the commercial use of national estates’ images, on any media, shall be subject to a prior authorisation from the administrator of the relevant property complex. Such an authorisation can either be a unilateral decision or an agreement, and can be free or chargeable (Article L621-42 of the French Heritage Code). The fee calculation, if applicable, shall take into account all the advantages of any nature granted to the authorization holder. A governmental decree (initially expected on December 2016) is meant to provide additional information about the relevant fee calculation.Where the Act provides for exceptions to such an authorisation, these exceptions only cover uses for cultural, artistic, educational, teaching, researches or information purposes.
- Lastly, it should be stressed that this authorisation is not linked to any intellectual property rights protection. As a result, when using images of French historical monuments, one could have to seek two authorisations as follows:
- In addition, another governmental decree is expected in April 2017 in order to set out the list of the national estates which will be caught by the Act. However, considering the broad definition of a “national estate”, it is likely that most French public monuments will fall under this definition.
- an authorisation from the administrator of the monument where it belongs to the aforementioned national estates list and/or;
- an authorisation from the copyright owner, where the monument has not fallen into the public domain yet.
Why this matters:
This new provision should be read in conjunction with a recent ruling from the French Council of State (“Conseil d’Etat”) dated 23 December, 2016, which recognised the right for French public authorities to authorise, or not, the reproduction, for commercial purposes, of works belonging to museums’ collection. The French Council of Sate ruled that such kind of reproduction shall be considered as a private use of the furniture public domain (“public domaine mobilier”) requiring the prior authorisation from the public authorities, even though the contemplated works are no longer protected by copyright (so that it should have normally fallen into the public domain and therefore should have been free to use).
It will be interesting to see how this perpetual intellectual property “ersatz” to the benefit of the French public authorities comes out, as some authoritative academics have already argued that this is unconstitutional.
