French copyright law 2350107 221601150 2008-06-25T06:36:27Z Rjwilmsi 203434 gen fixes + format *date= in cite news/web/paper templates - full explanation [[User:Rjwilmsi#My_correction_of_dates_in_templates|here]] using [[Project:AutoWikiBrowser|AWB]] 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 (legal system)|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 [[:fr:Tribunal de grande instance (France)|Tribunal de grande instance de Paris]] concluded that file sharing through peer-to-peer was not a crime [http://www.juriscom.net/documents/tgiparis20051208.pdf]. The judgment was based on the right to "private copy" described in the [[:fr:Code de la propriété intellectuelle|Intellectual Property Code]] which includes the use of digital media [http://www.legifrance.gouv.fr/html/codes_traduits/cpialtext.htm]. On [[7 March]] [[2006]], however, the [[French National Assembly|National Assembly]] passed the [[DADVSI|DADVSI Act]] which implemented - with some modifications - the 2001 [[EU Copyright directive|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 [[Magnetic tape|tape recording]] and other media. == History == {{see|History of copyright law}} The concept of "right of the [[author]]", which differs from Anglo-American [[copyright]], finds its roots in the practice of [[printing patent]]s and royal [[privilege]]s, which first appeared in the 16th century and became common in the 17th century <ref name=Latournerie> Anne Latournerie, [http://multitudes.samizdat.net/spip.php?article168 Petite histoire des batailles du droit d’auteur], ''[[Multitudes]]'' n°5, May 2001 {{fr icon}}</ref>. Rather than the author, the privilege concerned the [[publication]] of his works. The first privilege granted in France was given by [[Henry II of France|Henri II]] in 1551 to [[Guillaume Morlay]], his luth player <ref name=Latournerie/>. Through this system of royal privileges, the King granted [[monopoly|monopolies]] to specific editors, and implemented a [[censorship in France|system of censorship]] <ref name=Latournerie/>. Privileges were then very short (3 to 10 years), after which the work entered the [[public domain]] <ref name=Latournerie/>. The [[Moulins ordinance]] of 1566, first piece of legislation to impose to librarians and editors the request of a printing patent, did not make any mention of authors <ref name=Latournerie/>. Despite this regime which privileged editors on authors, some of the latter succeeded in obtaining privileges for their works. During the [[Muret Affair]], in 1568, the lawyer Marion pleaded for a complete and unrestricted [[right of property]] of the author on his work, and [[intellectual property]] thus entered the French [[jurisprudence]] <ref name=Latournerie/>. In the same time, the practice of percentage remuneration given to authors became common during the 17th century <ref name=Latournerie/>. Authors of dramatic plays, such as [[Corneille]], started to defend their rights, as when a play was published, any troop could play it without paying anything to its creator <ref name=Latournerie/>. The King thus arbitrated between the rival interests of editors and creators, giving his preference to the former <ref name=Latournerie/>. 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]] <ref name=Latournerie/>. In 1777, two other court decisions limited the publisher's right, which was restricted to the life-time of the author <ref name=Latournerie/>. Following the abolition of privileges on the [[night of 4 August 1789]], during the [[French Revolution]], the [[National Convention]] enacted new legislation on the matter <ref name=Latournerie/>. A draft law was proposed by the [[Abbé Sieyès]], which, although allegedly inspired by [[Marquis de Condorcet|Condorcet]]'s [[pamphlet]] titled ''Fragments sur la liberté de la presse'' (Fragments on [[liberty of the press]], 1776), aimed at struggling against the spread of licentious ideas by imposing responsibility of their diffusion on authors, publishers and librarians <ref name=Latournerie/>. Sieyès and Condorcet also advanced the idea of "limited privilege," against [[Perpetual copyright|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. <ref name=Latournerie/>" Finally, after a controversy concerning dramatic authors, and their rebellion, led by [[Beaumarchais]], these tentatives resulted in the [[July 19]], [[1793]] ''[[André Chénier|Chénier Act]]''. The [[July 14]], [[1866]] Act proroges the rights until fifty years after the death of the author. Debates continued through-out the 19th century, opposing in particular [[Lamartine]] to [[Proudhon]], and the [[inter-war period]]. During the [[Popular Front (France)|Popular Front]], the Minister of National Education and of the Beaux-Arts, [[Jean Zay]], proposed as soon as August 1936 a draft law, based on a new philosophy which did not consider the author as an "owner" (''propriétaire''), but as an "intellectual worker" (''travailleur intellectuel''). Jean Zay voluntarilly located himself in the continuation of [[Alfred de Vigny]], [[Augustin-Charles Renouard]] and Proudhon <ref name=Latournerie/>, and defended the "spiritual interest of the collectivity" <ref name=Latournerie/>. 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 <ref name=Latournerie/>. Zay's draft project was particularly opposed by the editor [[Bernard Grasset]], who defended the right of the editor as a "creator of value" <ref name=Latournerie/>, while many writers, including [[Jules Romains]] and the president of the ''[[Société des Gens de Lettres]]'', [[Jean Vignaud]], supported Zay's draft <ref name=Latournerie/>. The draft did not succeed, however, in being voted before the end of the legislature in 1939. New discussions were engaged during the [[Vichy regime]], initiated by a [[corporatist]] organism <ref name=Latournerie/>, presided by three jurists, François Hepp, [[René Dommange]], and Paul Lerebours-Pigeonnières <ref name=Latournerie/>. Both Hepp and Dommange had been at the forefront of the battle against Jean Zay's draft law during the Popular Front <ref name=Latournerie/>. During the [[French Fourth Republic|Fourth Republic]], 13 years of debate modernized the law by the [[March 11]], [[1957]] Act, which was in continuity with the Vichy proposals <ref name=Latournerie/> &mdash; a continuity proudly highlighted by François Hepp <ref name=Latournerie/>. A Commission had been created in August 1944, presided 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 <ref name=Latournerie/>. 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 <ref name=Libera> Luce Libera, [http://multitudes.samizdat.net/spip.php?article169 12 268 millions de poèmes et quelques... De l’immoralité des droits moraux], ''[[Multitudes]]'' n°5, May 2001 {{fr icon}}</ref>. 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 <ref name=Libera/>. In March 2006, the controversed [[DADVSI|DADVSI Act]], which implements - including modifications - the 2001 [[EU Copyright directive]] is voted by the [[French National Parliament|National Parliament]] <ref> {{fr icon}}{{cite news | title=La farce du téléchargement, par Michel Alberganti | publisher=Le Monde | date=2006-03-14 | url=http://www.lemonde.fr/web/article/0,1-0@2-651865,36-750471,0.html}} </ref>. == Protected works == The criterion for protection of a work under French copyright law is that it be an ''œuvre de l'esprit'', a work of the mind (Art. [http://www.legifrance.gouv.fr/WAspad/VisuArticleCode?commun=&code=&h0=CPROINTL.rcv&h1=1&h3=4 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. [http://www.legifrance.gouv.fr/WAspad/VisuArticleCode?commun=&code=&h0=CPROINTL.rcv&h1=1&h3=4 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]]'' [[Database rights|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.<ref>[http://www.courdecassation.fr/jurisprudence_publications_documentation_2/actualite_jurisprudence_21/premiere_chambre_civile_568/arrets_569/br_arret_9940.html Cour de cassation<!-- Bot generated title -->]</ref>, . They still have to be added to the 70 years delay for musical works, because of a 1985 law.{{Fact|date=June 2008}} 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|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 [[Voluntary association|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: *Centre Français d'Exploitation du droit de copie (CFC) *[[Sacem]] *[[ADAGP]] *[[SACD]] == 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 [[French constitution|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 == <small>Much of this article is based on the article [[:fr:Droit d'auteur|"Droit d'auteur"]] in [[:fr:|French Wikipedia]].</small> {{reflist}} == See also == *[[Copyright law of the European Union]] *[[December 22]], [[2005]] last-minute amendments legalizing peer-to-peer exchanges in the frame of the [[:fr:Droit d'auteur et droits voisins dans la société de l'information|DADVSI Act]] implementing the 2001 [[EU Copyright Directive]] == External links == *[http://www.legifrance.gouv.fr/WAspad/RechercheSimplePartieCode?commun=CPROIN&code=CPROINTL.rcv ''Code de la propriété intellectuelle''] (official site, ''in French'') *[http://www.legifrance.gouv.fr/html/codes_traduits/cpialtext.htm French Intellectual Property Code] (semi-official translation) *[http://www.wipo.int/clea/docs_new/en/fr/fr062en.html French Intellectual Property Code] ([[WIPO]] translation) *[http://www.lemonde.fr/web/article/0,1-0@2-3476,36-636777,0.html 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. {{IPL-EU}} [[Category:Copyright laws of the European Union]] [[Category:Copyright law by country]] [[Category:French law|Copyright]] [[fr:Droit d'auteur]]