Implementing the DSM Copyright Directive: France takes the first step

In light of recent developments in the digital space, it became clear to lawmakers that the copyright legislation currently in force in the EU required adjustments. As such, the directive (EU) 2019/790 of the European Parliament and of the Council on copyright and related rights in the digital single market adopted on 17 April 2019 was designed to reform copyright laws that had become inadequate.

The two major changes introduced in this directive are:

• the creation of a related right (also referred to as "neighboring right") for press publishers to receive compensation for the online reproduction and representation of their publications by a third party (Article 15)
• the accountability of "big" platforms for the unauthorized online communication of protected content, to encourage the conclusion of license agreements with rightsholders (Article 17).

Member States have until 7 June 2021 to implement the directive.

France very quickly took the lead, with a proposed law intended to create a related right for news agencies and press publishers finally adopted on 23 July 2019, through a simplified examination procedure.

The new law, No. 2019-775 of 24 July 2019, adds a new chapter to the French Intellectual Property Code (IPC) to create the new "rights of press publishers and news agencies".

Article 14 of this law specifies that it will enter into force three months after its promulgation, on 24 October 2019. It will not apply to press publications first published before 6 June 2019 (ie the date the directive first entered into force).

In accordance with Article 15(1) of the directive, Article 4 of this law ushers in a new Article L. 218-2 of the IPC regarding the obligation to obtain authorization from publishers of online news services or news agencies before any reproduction or communication to the public of all or part of their press publications in a digital form by an online communication service provider.

Furthermore, Article L. 218-3 of the IPC will acknowledge the possible assignment or licensing of the rights of press publishers and news agencies. The management of these rights may be organized with one or several collective management organizations.

In accordance with Article 15(4) of the directive, Article L. 211-4 will provide that these rights will expire two years after the press publication is published, a term calculated from 1 January of the year following the date on which that press publication is published.

Consequently, any digital platform (such as Google or Facebook) using all or part of a press article must compensate press publishers.

Article L. 218-4 of the IPC specifies that this compensation is based on the exploitation revenues of any kind, direct or indirect, of the company reproducing or showing press publications in a digital form. If it is not possible, it is assessed on a flat rate basis.

The new provision goes beyond the directive, by specifying that this compensation takes into account quantitative and qualitative elements such as "human, material and financial investments made by publishers and news agencies", as well as "the contribution of press publications to political and general information and the importance of the use of press publications by an online communication service to the public".

What about contents that do not constitute political and general information then? Do they fall within the scope of this new related right?

Finally, Law No. 2019-775 has duly included exceptions enshrined in the directive, which relate to:

• hypertext links
• the use of isolated words
• the use of "very short extracts" of a press publication.

Many criticisms have already been levelled at Law No. 2019-775's failure to define the concept of “very short extracts”. That said, Article L. 211-3-1 of the IPC outlines that the use of isolated words or very short extracts may not impact the effectiveness of the new related right created by Article L. 218-3 of the IPC, and that this effectiveness is “notably affected when the use of very short extracts replaces the press publication itself or exempts the reader from referring to it” (emphasis ours).

Why was the adverb “notably” added? It seems to us that the key criterion for the application of the “very short extracts” exception hinges on whether or not the end user needs to consult the press publication itself. In other words, the question is whether or not the “very short extracts” satisfy the public’s need for information.

Indeed, this is the position adopted by Rapporteur Patrick Mignola¹ in the context of the tabling of an amendment, when he stated:

"…the effectiveness of these rights is affected when the short extract, by the number of words it contains or by its content, is likely to satisfy the public's need for information. A massive use of short extracts is likely to affect the exercise of these rights".

Looking forward, the next step in the legislation process in France will be the implementation of Article 17. This is expected to relate to audiovisual reform, with a bill likely to be presented by the end of October 2019.

[1] French Politician appointed to analyse the law proposal intended to create a related right for news agencies and press publishers.