Regulation of the industry is largely amended by the merger of two pre-existing authorities (Conseil supérieur de l'audiovisuel - CSA and the Haute Autorité pour la Diffusion des Œuvres et la. Protection des droits sur Internet - HADOPI) into one single body, Autorité de régulation de la communication audiovisuelle et numérique – (ARCOM), which inherits from both legacies and in which extended powers are vested.
Although ARCOM missions are mainly the same as those granted to HADOPI, the new authority enjoys a further role in the execution of industry agreements. ARCOM is able to :
- evaluate the efficiency of agreements aimed at avoiding infringement;
- issue recommendations or suggestions to overcome any obstacles to their performance.
Further, ARCOM officers enjoy new extensive investigation powers: they are able to communicate under aliases with regards to infringing acts under investigation and can reproduce works, extract, acquire and dispose of any elements able to evidence infringement. Further, they can now request communication of the identity and other details of subscribers to communication services used to reproduce or communicate copyright-protected works to the public.
Aside from the traditional entities entitled to launch an action before the Authority, an infringer can now also be prosecuted by a right holder based upon the filing of a report by a bailiff (“huissier de justice”).
Identifying and addressing specific infringing practices
A list of online public communication services which seriously and repeatedly infringe copyright or neighbouring rights can be publicly released by the ARCOM, based upon its investigations. Blacklisting of any website is subject to a decision taken in compliance with the right for the alleged infringer to defend the action. Any commercial partners are required to publicly disclose their ties with these websites on a yearly basis.
The access to mirror websites, identified as reproducing, in whole or in part, a website recognised by a definitive Court decision as infringing rights - and therefore subject to access prohibition - can be limited upon request from the rights holder by the ARCOM. The same access limitation applies to any search engine or online listing in order to block reference to such websites .
In the event of serious and repeated infringement of broadcasting rights of sports competitions or events constituted by parallel live streaming on dedicated websites, any rights holders (such as TV broadcaster or a sport federation) can bring inter partes or ex parte interim proceedings in order to obtain any proportionate measures to prevent or make such infringing acts cease. The judge’s order might stand for the duration of an entire sport season.
New obligations for all parties on assignment of film catalogues
A brand-new provision also sets new conditions for the assignment of French film catalogues, which are subject to notice to the Ministry for Culture prior its performance.
Under penalty fine, notice shall be sent by a producer (or, most likely, any assignee of the producer’s rights) at least 6 months prior the transaction, aside with elements evidencing that the assigned party is fully able to seek continued exploitation of the works at stake, in terms of human, financial, technical and material resources.
Within 3 months upon receipt of the notice, the Ministry hands in a notice by which it approves the future conditions of exploitation of the works at stake, therefore closing the process. Unsatisfactory elements lead the matter to be heard by the Committee for protecting access to works, which can fix certain obligations to ensure the equitable exploitation of the assigned works.
The decision can be appealed before Courts. Further, it can be judicially enforced in case of non-compliance by any party justifying interest to do so.
What’s next ?
These new provisions are to enter into force from 1st January 2022. From this date onwards, proceedings heard by the former bodies shall be automatically transmitted to ARCOM without prior notice.
Further, the Law refers to the adoption of a Decree to set the terms and conditions of the control driven by the Ministry for Culture once informed of the contemplated assignment of a film catalogue.
Authored by Stanislas Roux-Vaillard and Mathilde Grammont