Cecily Zamora
France has a comprehensive framework for addressing copyright infringement, including provisions for online and architectural works. Notably, French jurisprudence has established that citing case law does not constitute copyright infringement if the cited work is not the main subject and is only accessory to the reproduction. This principle reflects the legal maxim de minimis non curat lex, indicating that trivial or minor copying does not constitute infringement. However, unauthorised reproductions of copyrighted works, such as architectural landmarks, can result in infringement claims. Monetary damages are available for copyright infringement in France, and the High Authority for the Dissemination of Works and Protection of Copyrights on the Internet (HADOPI) enforces copyright law in the digital realm.
| Characteristics | Values |
|---|---|
| French copyright law | Droit d'auteur or French authors' rights law |
| Basis | Rights of the author, not the right to copy |
| History | Roots in 16th-century royal privileges; older than UK copyright law |
| Jurisdiction | Applies within French territory; may apply to online infringement |
| Criminal offence | Yes; breach of proprietary rights attracts fines and imprisonment |
| Fine | Up to €300,000 (approx. US$391,850 or £250,300 as of January 2012) |
| Imprisonment | Up to 3 years; increased to 5 years for organised groups |
| Monetary damages | Available for copyright infringement |
| Injunctions | Preliminary injunctions may be granted prior to trial |
| Copyright infringement criteria | Technically established similarity; previously recognisable similarity |
| Notable cases | Erik Satie v. Janet Jackson; Zaka Percussion v. Björk |
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What You'll Learn
Case law on copyright infringement
Another aspect of French case law on copyright infringement involves architectural works. Architects hold the copyright to their original works, including plans, sketches, and three-dimensional creations, as outlined in Article L 112-2 12 of the IPC. Reproducing these works without authorisation is considered infringement. Notably, in 1990, two separate court rulings found unauthorised postcards depicting the Grande Arche and La Géode as principal subjects to be infringements.
Online copyright infringement is also addressed in French case law. The High Authority for the Dissemination of Works and Protection of Copyrights on the Internet (HADOPI), established in 2009, enforces copyright law in the digital realm. ARCOM, created through Law No. 2021-1382 in 2021, further strengthens online copyright protection. In cases of recurring infringement by large platforms, ARCOM can transfer the case to the European Commission for further action.
Monetary damages are available for copyright infringement in France. Courts consider negative economic consequences, moral prejudice to the rights holder, and profits made by the infringer when assessing damages. French law also offers alternative methods for assessing damages. Additionally, copyright infringement may be a criminal offence, providing criminal courts with jurisdiction to hear such cases.
French case law on copyright infringement is subject to evolution, influenced by European principles balancing rights and creative freedom. The Kraftwerk case in Germany, which ruled against copyright infringement based on this balance, may impact French jurisprudence. Similarly, comparisons have been drawn between French and US approaches, with the US Court of Appeals ruling in favour of Madonna in a copyright dispute, highlighting the "de minimis non curat lex" principle.
It is important to note that citing or quoting sources for informational purposes generally does not constitute copyright infringement, as it is covered by fair use or fair dealing exemptions. However, there may be limits on the amount of quoted material that can be used without infringing copyright.
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Remedies for copyright infringement
In France, copyright infringement requires copying, as well as recognition of the appropriation by the average audience. French jurisprudence has never considered "accessory" reproduction as a copyright infringement, even in for-profit reproductions, if the reproduced element is not the main subject. For instance, in a 2005 case, the Cour de cassation upheld the lower courts' decisions on the accessory inclusion of modern artistic constructions on postcards of Lyon's Place des Terreaux.
French law provides monetary damages for copyright infringement, including loss of profits, moral prejudice caused to the rights holder, and the profits made by the infringer. In addition, there are several provisions in place to address online copyright infringement. For example, the 2009 High Authority for the Dissemination of Works and Protection of Copyrights on the Internet Laws led to the creation of ARCOM, which can transfer cases of recurring infringement by a big platform to the European Commission. Rights holders can also request courts to order 'all appropriate measures' to prevent or stop copyright infringement.
In the United States, the Online Copyright Infringement Liability Limitation Act was enacted in 1998, amending Chapter 5 of the U.S. Code on Copyright Infringement and Remedies. This Act added limitations on liability relating to online material and reasonable license fees for individual proprietors. The chapter has since undergone several amendments, including the 1999 technical correction that redesignated Section 512 as Section 513.
Additionally, the U.S. Code outlines the scope of relief available in cases of copyright infringement. Courts may grant injunctive relief by restraining service providers from providing access to infringing material or terminating the accounts of subscribers engaging in infringing activity.
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Architectural works and copyright
In France, the concept of "authors' rights" differs from the Anglo-American concept of copyright. The French system is based on the "rights of the author", with its roots in the 16th century when royal privileges were granted to specific editors, giving them monopolies over publications. This system evolved into the droit d'auteur, or French authors' rights law, which places the interests of the author at its centre.
French copyright law has traditionally considered unauthorised use of a copyrighted work to be an infringement if it is significant enough for an average audience to recognise the appropriation. However, recent decisions by French courts have moved towards a more objective assessment, focusing on technically established similarity rather than recognisable similarity. This shift aligns with the approach taken in other jurisdictions, such as the Kraftwerk case in Germany, which balanced copyrights with creative freedom.
In the context of architectural works, copyright protection is a complex issue. In the United States, the protection of architectural works has evolved over time. Before 1976, there was no express inclusion of "an architect's plans and drawings" under copyright protection. The 1976 Act extended protection to architectural plans and drawings, but courts interpreted this to exclude the right to build structures depicted in those drawings. It wasn't until 1989, when the United States joined the Berne Convention for the Protection of Literary and Artistic Works, that completed architectural works gained stronger protection from infringement.
Currently, in the United States, architectural works created on or after December 1, 1990, are generally eligible for copyright protection. This protection also extends to architectural drawings created after 1976, which are protected as "pictorial, graphic, or sculptural" works. It's important to note that a design automatically gains copyright protection at the time of its creation, and registration is not required. However, registration offers additional benefits, such as the ability to bring infringement suits and collect statutory damages.
In summary, both France and other jurisdictions, including the United States, recognise the importance of protecting authors' rights and intellectual property in various forms, including architectural works. While there are nuances and differences in how copyright infringement is assessed, the overall trend seems to favour stronger protection for rights holders.
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Sampling and copyright
Music, like many other forms of creative expression, is protected by copyright law. Copyright infringement occurs when a person reproduces or represents a work, either partially or totally, without the authorisation of the author or rights holder. This includes translations, adaptations, or transformations of the original work.
Sampling refers to the act of taking a portion of a sound recording and reusing it by incorporating it into a new audio-only recording. This is common in genres such as Electronic Dance Music (EDM), where artists use pre-recorded music and sounds to create new work. If someone wants to sample a sound recording, they must obtain permission from both the copyright owner of the song (the music publisher) and the copyright owner of the particular recording of that song (the record label) to avoid copyright infringement.
In France, copyright law is known as "droit d'auteur" or authors' rights law. This law puts the interests of the author at the center, rather than that of the investor. French jurisprudence has traditionally held that “accessory” reproduction, where the reproduced element is not the main subject, does not constitute copyright infringement, even in for-profit reproductions. However, recent French court decisions have moved away from subjective considerations of whether an average audience would recognise the copying, towards a more objective assessment. This shift is welcomed by rights holders but may not favour users of samples.
The penalties for breach of proprietary rights in France can be severe, including fines of up to 300,000 Euros (approximately US$391,850 or £250,300) and imprisonment of up to three years. These penalties are increased for offences committed in an organised group. Monetary damages for copyright infringement take into account the negative economic consequences, moral prejudice caused, and profits made by the infringer.
In conclusion, sampling in music can be a complex area due to copyright laws. To avoid infringement, it is crucial to obtain the necessary licenses and permissions from copyright owners. While French law has traditionally had a more flexible approach to "accessory" reproductions, recent trends indicate a shift towards stricter enforcement, bringing it more in line with other jurisdictions.
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Online copyright infringement
The concept of "rights of the author", which is distinct from the Anglo-American concept of copyright, has its roots in France, dating back to the 16th century. This evolved from the practice of granting printing patents and royal privileges to specific editors, allowing them a monopoly over publications. French jurisprudence has traditionally considered unauthorised use of copyrighted works as infringement if it is significant and recognised by the average audience. However, recent decisions by French courts have moved towards a more objective assessment, focusing on technically established similarity rather than recognisable similarity.
In France, copyright infringement is considered a criminal offence, attracting hefty fines and imprisonment. The law protects both French and foreign authors' rights, as long as the breach occurs within French territory. The import and distribution of infringing copies are also punishable under the same provisions. French law provides monetary damages for copyright infringement, including loss of profits, moral prejudice, and profits made by the infringer. The High Authority for the Dissemination of Works and Protection of Copyrights on the Internet Laws of 2009 and subsequent legislation have further strengthened the response to online copyright infringement.
To combat online copyright infringement, various strategies can be employed. These include drafting strong licensing agreements, effectively displaying copyright notices, and utilising tools to monitor unauthorised use. Additionally, legislative measures such as the Digital Millennium Copyright Act (DMCA) in the United States and the European E-Commerce Directive provide protections for online service providers and copyright owners. The DMCA establishes a notice-and-takedown system, enabling copyright owners to request the removal of infringing content. It also makes it unlawful to provide false copyright management information.
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Frequently asked questions
Citing case law is not considered copyright infringement in France. Citing is simply acknowledging where the information was sourced and does not constitute copyright infringement.
In France, copyright infringement occurs when there is a copying of the original work and the average audience can identify the appropriation. This can include for-profit reproductions of recent architectural works by photographers, filmmakers, graphic artists, or other third-party users without permission from the architect.
Monetary damages are available for copyright infringement in France. The court considers the negative economic consequences, including loss of profits and moral prejudice caused to the rights holder. French law also provides an alternative to the assessment of damages.
