Quotation exception

The quotation exception allows an extract from a disclosed work to be reproduced without the author’s authorisation, provided that the quotation is short, justified by the critical, polemical, educational, scientific or informative character of the work into which it is incorporated, and accompanied by a clear indication of the author’s name and the source. It appears in Article L. 122-5, 3°, a) of the French Intellectual Property Code and corresponds to Article 5(3)(d) of Directive 2001/29/EC and to Article 10 of the Berne Convention, the only exception made mandatory by that treaty.

Conditions of quotation

The quotation must be short, which is assessed by reference both to the quoted work and to the quoting work: the borrowing must neither spare the reader the need to consult the original work nor form the substance of the new work. It must be incorporated into a second work that develops its own argument, since the exception covers neither compilations of quotations nor illustrative use without discussion. It must pursue one of the purposes listed in the statute. It must finally respect moral rights, by naming the author and the source and by reproducing the extract faithfully. All of these conditions are cumulative and the burden of establishing them lies on the party relying on the exception.

Scope by category of works

The Court of Cassation has long held that the reproduction of a work in its entirety, even in reduced format, is not a short quotation, which in practice excludes the exception for graphic, three-dimensional and photographic works reproduced in full. Musical and audiovisual quotation is accepted where the extract is short and inserted into a critical or documentary discourse. The Court of Justice of the European Union adopts a functional reading: quotation presupposes a dialogue with the quoted work and may concern a work made accessible through a hyperlink, without requiring the extract to be inseparably integrated, but it cannot cover a work that has not yet been lawfully disclosed.

Pitfalls in practice

Common professional uses often exceed the statutory framework: internal press reviews, reproduction of visuals in presentations, extracts from books in training materials. Press reviews enjoy a separate exception, limited to the juxtaposition of articles on the same topic. Outside these cases, the reproduction falls within the reproduction right and requires a licence, where appropriate through a collective management organisation. Good faith and the absence of a profit motive are irrelevant to the characterisation of infringement.

Key points

A quotation is lawful if it is short, incorporated into a work that justifies it by criticism, teaching, science or information, and attributed to its author with the source. The reproduction of an entire image is never a quotation under French law. Before reusing any extract, check the purpose of the borrowing and its proportion, then always state the author’s name and the source.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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