Copyright law of France


The droit d'auteur or French authors' rights law, is in the jurisdiction of France a set of exclusive prerogatives available to a creator over his or her intellectual work, as part of the intellectual property area of law. It has been very influential in the development of authors' rights laws in other civil law jurisdictions, and in the development of international authors' rights law such as the Berne Convention. It has its roots in the 16th century, before the legal concept of copyright was developed in the United Kingdom. Based on the "rights of the author" instead of on the right to copy, its philosophy and terminology are different from those used in copyright law in common law jurisdictions. The term droit d’auteur reveals that the interests of the author are at the center of the system, not that of the investor.
French authors' rights law is defined in the Code de la propriété intellectuelle, which partly implements European authors' rights law. Two distinct sets of rights are defined:
  • Proprietary rights
  • Moral rights

    History

Background

The concept of "rights of the author", which distinctly differs from the Anglo-American concept of copyright, finds its roots in the practice of printing patents and royal privileges, which first appeared in the 16th century and became common in the 17th century. The privilege concerned the publication rights to authors' works, rather than authors' rights per se. The first privilege granted in France was given by Henri II in 1551 to Guillaume de Morlaye, his lute player. Through this system of royal privileges, the King granted monopolies to specific editors, and implemented a system of censorship. Privileges were then very short, after which the work entered the public domain. The Moulins ordinance of 1566, the first piece of legislation to impose to librarians and editors the request of a printing patent, did not make any mention of authors.
This regime privileged editors over authors, but some authors succeeded in obtaining privileges for their works. During the Muret Affair, in 1568, a lawyer named Marion pleaded for a complete and unrestricted right of property of the author on his work, and intellectual property thus entered the French jurisprudence.
The practice of remunerating authors by some percentage of revenues became common during the 17th century. Playwrights, including Corneille, started to defend their rights because at that time, once a play was published, any troupe could play it without paying anything to its creator. The King thus arbitrated between the rival interests of editors and creators, giving his preference to the former.
In 1761, a court decision granted to Jean de La Fontaine's granddaughters the right of ownership of La Fontaine's work, legitimized by the right of inheritance. In 1777, two other court decisions limited the publisher's right, which was restricted to the life-time of the author.

French revolution

Such privileges were abolished on the night of 4 August 1789, during the French Revolution. Then the National Convention enacted new legislation. A draft law was proposed by the Abbé Sieyès, which, although allegedly inspired by Condorcet's pamphlet titled Fragments sur la liberté de la presse, aimed at struggling against the spread of licentious ideas by imposing responsibility for their diffusion on authors, publishers and librarians. Sieyès and Condorcet also advanced the idea of "limited privilege," against perpetual privileges, thus preparing the inclusion in the public domain of the works of Racine, Molière, Rousseau, Voltaire, etc. According to Anne Latournerie, "The first revolutionary attempt to provide to authors a legal recognition of their rights on their texts was therefore not the search of a freedom for authors, but rather the exigency of a responsibility."
After a controversy concerning dramatic authors and their rebellion, the Chénier Act resulted on July 19, 1793. The July 14, 1866 Act extends the rights until 50 years after the death of the author.

Concept of intellectual worker

Debates continued throughout the 19th century – notably, between Lamartine and Proudhon – and the inter-war period. As early as August 1936 during the Popular Front, the Minister of National Education and of the Beaux-Arts Jean Zay proposed a draft law based on a new philosophy of the author as an "intellectual worker" rather than as an "owner". Jean Zay placed himself in a moral continuum with Alfred de Vigny, Augustin-Charles Renouard and Proudhon, defending the "spiritual interest of the collectivity". Article 21 of his draft divided the 50 years post-mortem protection period into two different phases, one of 10 years and the other of 40 years which established a sort of legal licence suppressing the right of exclusivity granted to a specific editor. Zay's draft project was particularly opposed by the editor Bernard Grasset, who defended the right of the editor as a "creator of value", while many writers, including Jules Romains and the president of the Société des Gens de Lettres, Jean Vignaud, supported Zay's draft. The draft did not succeed, however, in being voted in before the end of the legislature in 1939.
New discussions were undertaken during the Vichy regime, initiated by a corporatist body, presided over by three jurists, François Hepp, René Dommange, and Paul Lerebours-Pigeonnières. Hepp and Dommange had been at the forefront of the battle against Jean Zay's draft law during the Popular Front.
A Commission had been created in August 1944, presided over by the jurist Jean Escarra, who had co-signed in 1937 an essay with François Hepp and Jean Reault, published by Grasset, which harshly criticized Jean Zay's draft project. Extended debate in the Fourth Republic led to a modernized law along the lines of the Vichy proposals with Act No. 57-298 of March 11, 1957. Hepp proudly highlighted the continuity.

Authors' rights law of 1957

According to the 1957 authors' rights laws, most works were protected for the duration of the author's life plus 50 years. The 1957 authors' rights laws were substantially modified by Act No. 85-660 of July 3, 1985, which came into force on January 1, 1986. Among other changes, this act introduced various neighbouring rights and increased the length of intellectual property protection for musical compositions to life of the author plus 70 years. These laws were then incorporated into the Intellectual Property Code, enacted on July 1, 1992. Act No. 97-283 of March 27, 1997, increased the authors' rights term of most works from life plus 50 to life plus 70 years. Because the related EU directive required implementation by July 1, 1995, the new authors' rights term was given retroactive effect to that date.

Jurisprudence

In 1997, a court decision outlawed the publication on the Internet of Raymond Queneau's Hundred Thousand Billion Poems, an interactive poem or sort of machine to produce poems. The court decided that the son of Queneau and the Gallimard editions possessed an exclusive and moral right on this poem, thus outlawing any publication of it on the Internet and possibility for the reader to play Queneau's interactive game of poem construction.
On 8 December 2005 the Tribunal de grande instance de Paris concluded that file sharing through peer-to-peer was not a criminal offense. The judgment was based on the right to "private copy" described in the which includes the use of digital media.

DADVSI Act

On 7 March 2006, the National Assembly passed the DADVSI Act which implemented—with some modifications—the 2001 Information Society directive of the European Union. The DADVSI act makes peer-to-peer sharing of property rights' protected works an offense. It does allow for sharing of private copies of tape recording and other media. However, there existed considerable differences of opinion as to how to implement the directive, in many respects.

Protected works

The condition for protection of a work under French authors' rights law is that it be an œuvre de l'esprit, a work of the mind and original in form. 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 is not limitative.
The legal protection of computer programs was, and to some extent still is, the subject of much debate in France. Patent protection was first excluded by Loi n°68-1 du 2 janvier 1968 sur les brevets d'invention and defined in authors' rights by Loi n°85-660 du 3 juillet 1985 relative aux droits d'auteur et aux droits des artistes-interprètes, des producteurs de phonogrammes et de vidéogrammes et des entreprises de communication audiovisuelle. The legal position was resolved by the transposition of May 14, 1991 EU Computer Programs Directive into French law: computer programs and any associated preparatory works qualify for authors' rights 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 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 authors' rights is exercised by the original publisher.
A collective work is a work created at the initiative of a natural or legal person who edits it, publishes it and discloses it under his 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. A collective work is the property, unless proved otherwise, of the natural or legal person under whose name it has been disclosed. The author's rights, vest in such person." The term of the exclusive right is 70 years from January 1 of the calendar year following that in which the work was published."