French Public Authorities given new image rights over national estates

French case law has consistently held that the owners of buildings or historical structures do not have any exclusive right over the image of such building, and cannot prevent the mere taking of pictures or videos, unless they could prove some accompanying illicit or infringing action such as violation of privacy, degradation, negative impact on the peaceful use and enjoyment of the location or unfair competition.

Today, however, this principle is at risk of being seriously undermined by the recent French Act No. 2016-925 of July 7, 2016 on “Freedom of creation, architecture and cultural heritage” (“Loi relative à la liberté de la création, à l’architecture et au patrimoine”) (“the Heritage Act”).

What does the Heritage Act do?

The Heritage Act:

• creates the concept of a “national estate” (“domaine national”), defined as a property complex having an exceptional link with French National history and which is owned, at least in part, by the French State (Article L621-34 of the Heritage Code); and

• provides that the commercial use of images of the national estates, on any media, shall be subject to a prior authorisation from the administrator of the relevant property complex. Such an authorisation can either be a unilateral decision or an agreement, and may be free or for payment (Article L621-42 of the Heritage Code). The fee calculation, if applicable, shall take into account all the advantages of any nature granted to the authorisation holder. A governmental decree (initially expected on December 2016, but not yet released at the time of writing) is supposed to provide specifications about the method of calculating fees.

Another governmental decree, due in April 2017, is expected to set out the list of the concerned national estates. Considering the vagueness of the definition of “national estate” it is likely that most French public monuments will fall under this definition.

Where the Act provides for exceptions to the requirement for such an authorisation, these exceptions are for specific, limited purposes: cultural, artistic, educational, teaching, researches or information purposes.

A dual authorisation regime for IP rights?

Although it concerns the use of images, the authorisation under the Heritage Act is independent of any intellectual property rights protection under existing law. As a result, when using images of French historical monuments, one may have to seek two authorisations as follows:

• an authorisation from the administrator of the monument where it belongs to the aforementioned national estates list;
• and/or an authorisation from the copyright owner where the monument has not yet fallen into the public domain.

This new provision could be read in conjunction with a recent ruling from the French Council of State (“Conseil d’Etat”) dated December 23, 2016, which recognized the right for French public authorities to authorise, or not, the reproduction, for commercial purposes, of works belonging to museums’ collection. The Council of State ruled that such reproduction shall be considered as a private use of the furnishings of the public domain (“public domaine mobilier”), requiring prior authorisation from the public authorities, even though the contemplated works are no longer protected by copyright (so that they should have normally fallen into the public domain and therefore should have been free to use).

It will be interesting to see how this perpetual intellectual property “ersatz” to the benefit of the French public authorities works out. Some authoritative academics have already argued that this is unconstitutional.  Meanwhile, users of famous French sights for entertainment, advertising or even personal memento will need to be wary of the new need for additional permissions.