Reform of France's audiovisual sector takes major step forward

France's prime minister has presented (8 April 2021) a bill on the protection of public access to cultur-al works in the digital age, Projet de loi relatif à la protection de l’accès du public aux œuvres cul-turelles à l’ère numérique, to the French Council of Ministers.

The proposed law partly incorporates the provisions of the former bill on "audiovisual communication and cultural sovereignty in the digital age" presented at the end of 2019 by the government, which had the ambition to reform the French audiovisual landscape in depth (see our article on the implementa-tion of the Audiovisual Media Services Directive (AVMSD)).

In view of the Covid-19 crisis, the global reform has been divided into two parts. The AVMSD was implemented by the French Ordinance of 21 December 2020. This extends the obligation to contribute to the production of cinematographic and audiovisual works to on-demand service providers that are not French-based but target French territory. The proposed law will be the second part of the reform.

Increased powers

The proposed law will create the Regulatory Authority for Audiovisual and Digital Communication (ARCOM) from the merger of the French Audiovisual Authority (CSA) and the French anti-internet piracy agency HADOPI. The ARCOM will be granted increased powers (including conciliation proce-dures and investigative powers) over the entire field of audiovisual and digital content in order to fight against piracy, disinformation and online hate.

New measures will be introduced to fight against websites that facilitate the piracy of protected works (for example, mirror sites). Specifically, ARCOM could take decisions to state that a website infringes, in a serious and repeated manner, copyright or neighbouring rights and to name it in a public "black-list".

Upon the request of a right holder, ARCOM could rely on a final court decision to order the blocking of access to a website and to request for a limited period of time that: persons who offer access to online public communication services and any domain name provider prevent access to any website reproducing in whole or in a substantial manner the content that is deemed illegal; and any operator of a search engine or other referencing service stop the referencing of electronic addresses giving ac-cess to the disputed content.

Live sports events

New anti-piracy measures will also be introduced for live sports events. Under certain conditions re-garding the type of content and the purpose of the broadcasting website at stake, when serious and repeated infringements, including of the audiovisual exploitation rights or of a right acquired on an exclusive basis by agreement for the audiovisual exploitation of a sport competition or event, have been noted, the right holder (or any other interested party legally determined) will be able to bring a specific fast-track lawsuit to obtain all proportionate measures to prevent or remedy a new serious and irremediable infringement of its/her/his rights.

Prior declaration

A new mechanism will be introduced of prior declaration six months before the transfer of the right to exploit cinematographic and audiovisual works between a producer subject to the obligation to seek ongoing exploitation of such works (for instance, French producers) and a person not subject to it. This will allow the French minister of culture to assess whether the assignee is able to seek ongoing exploitation of the transferred works. This mechanism consists merely of a declaration (not an author-isation as initially drafted). As a result:

• After three months from the declaration, if the minister of culture considers that the assess-ment is not satisfactory, the matter may be referred to a commission "for the protection of access to works" that may then impose on the assignee obligations to ensure the ongoing ex-ploitation of the works at stake;
• In the event of non-compliance with the declaration duty, the producer might incur a financial penalty up to 10% of the value of the works at stake;
• In the event of non-compliance with the obligations imposed by the commission on the as-signee, the right holders may claim a breach and obtain remedies.

OC comment

The government stresses that the existing legal mechanisms do not guarantee public access to French works from audiovisual or movie catalogues that it deems as subject to "predatory" takeovers (see the minutes of the Council of Ministers). However, the part of the proposed law initially imposing heavier obligations and sanctions in this respect was rejected by the French Conseil d’Etat on 1 April 2021, and it is unclear whether the new declaration obligation will be sufficient to help remedy this issue.

Le Conseil supérieur de l’audiovisuel gave a positive opinion regarding the proposed law in its statement of 22 March 2021. Regarding the next steps, the proposed law was submitted on 8 April 2021 in the Council of Ministers to be then discussed via the accelerated procedure before the Senate and the National Assembly. The first discussions before the Senate should take place as of 18 May 2021.