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France – a proposal for new laws in the field of copyright and cultural heritage

On 22 October 2014, Fleur Pellerin, the French minister of culture and communication presented a proposal for a law adapting French law to EU law in the field of copyright and cultural heritage (the “Proposal”).

More specifically, the Proposal aims to implement provisions of three EU directives: (i) Directive 2011/77/EU on the term of protection of copyright;[1] (ii) Directive 2012/28/EU on certain permitted uses of orphan works;[2] and (iii) Directive 2014/60/EU on the return of cultural objects.[3]

The amendments are:

i)             Term of protection of copyright for performers’ rights and sound recordings

The Proposal would first amend Article L. 211-4 of the French Intellectual Property Code (“IPC”) to increase the term of protection of the rights of performers, producers of phonograms and producers of videograms. The term would remain, as a principle, 50 years starting from 1 January following the year of the first performance or of the first fixation. However, according to the Proposal, the term of protection would be increased from 50 to 70 years starting from 1 January of the year following the earliest of these acts, if, during the initial 50 year period, a phonogram or a fixation of the performance in a phonogram is lawfully published or lawfully communicated to the public.

The Proposal would also amend Articles L. 212-3-1 and L. 212-3-4 of the IPC to award performers, after the first 50 years of the 70 year term of protection, a right to terminate the authorisation given to a producer of phonograms to fix their performance on a phonogram, when the producer does not offer sufficient copies to the public or does not make it available in a way that members of the public can access it at a time and place chosen by them.

The Proposal also specifies that, where a contract on transfer or assignment gives performers a right to claim a non-recurring remuneration, performers shall have the right to obtain an annual supplementary remuneration from the phonogram producer for each year following the first 50 years of the 70 year term of protection.

ii)           Permitted uses of orphan works by libraries, museums, archives, schools and universities

The Proposal adds new Articles L. 135-1 to L. 135-7 to the IPC to allow public libraries to digitise and make accessible to their users the orphan works of their collections, which is notably defined by the Directive as being the works whose right holders cannot be identified or located despite a diligent search. Other organizations and institutions can do the same, in particular, museums, archives and educational establishments. The orphan works concerned are literary and cinematographic or audiovisual works and phonograms.

iii)           The return of cultural objects unlawfully removed from the territory of a Member State

The Proposal would amend the French Heritage Code to provide that, in order to determine whether the possessor of the cultural object exercised due care and attention (which is a condition for compensating that person for the loss of the object), consideration shall be given to all the circumstances of the acquisition, in particular the documentation on the object’s provenance, the authorizations for removal required under the law of the requesting Member State, the character of the parties, the price paid, whether the possessor consulted any accessible register of stolen cultural objects and any relevant information which he could reasonably have obtained, or took any other step which a reasonable person would have taken in the same circumstances.

The requesting State would only pay compensation (if it is found that the possessor indeed exercised due care and attention when acquiring the object) upon return of the object.

The Government has initiated an accelerated procedure for the Proposal and the Commission of Cultural Affairs should examine the text on the 12 November 2014.