Statutory licence (licence légale)

A statutory licence is a mechanism by which the law replaces the exclusive right to authorise or prohibit a use with a mere right to remuneration, the user being able to exploit the protected subject matter without prior authorisation against payment of a sum fixed by legislation or by a commission. The main example in French law is the statutory licence for commercial phonograms provided for in Articles L. 214-1 et seq. of the French Intellectual Property Code, but the device is found in other regimes, such as reprography or public lending.

The statutory licence for commercial phonograms

Where a phonogram has been published for commercial purposes, the performer and the producer may object neither to its direct communication in a public place, provided it is not used in a show, nor to its broadcasting and simultaneous and unabridged cable distribution. These uses give rise to equitable remuneration, paid by users and shared equally between performers and producers. The scale and the terms of payment are set by agreements between representative organisations or, failing that, by an administrative commission. The licence covers neither on-demand making available on the internet, which remains subject to the exclusive right of the holders of related rights, nor the rights of the authors of the recorded works, which continue to be administered by collective management organisations.

Other related mechanisms

Reprography operates as a statutory assignment: the publication of a work entails the assignment of the reprographic reproduction right to an approved collective management organisation, which alone may conclude agreements with users. The lending of copies of a work by libraries open to the public cannot be prohibited by the author, who receives remuneration funded by the State and by library suppliers. The private copying levy follows a comparable logic, since an exception is there compensated by a statutory charge. These schemes differ from the compulsory licence in patent law, granted by an authority case by case, and from the contractual licence, which flows from the will of the rightholder.

Limits and litigation

The statutory licence is strictly construed, since it derogates from the exclusive right. A use exceeding its scope, for instance the synchronisation of a phonogram in a show or an advertisement, or its on-demand streaming, constitutes infringement. The Court of Justice of the European Union has made clear that the concept of communication to the public conditions the application of the equitable remuneration provided for by EU law, and excludes certain broadcasts in professional practices that have no profit-making character.

Key points

The statutory licence replaces the right to prohibit with a right to remuneration fixed by statute or by a commission. It allows the public playing and broadcasting of commercial phonograms against equitable remuneration, but covers neither on-demand uses nor synchronisation. Before playing recorded music, check that the use falls within the scope of the licence and pay the remuneration due to the competent organisations.

---

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.

Intellectual property attorney · Tell us about your situation