Exceptions to copyright

Copyright exceptions are the situations in which a protected work may be reproduced or performed without the author’s authorisation. They are exhaustively listed in Article L. 122-5 of the French Intellectual Property Code, which essentially transposes the optional list in Article 5 of Directive 2001/29/EC, as supplemented by Directive (EU) 2019/790. They are the counterpart of the monopoly conferred by the economic rights and do not, in principle, affect moral rights.

An exhaustive list

French law has no general clause comparable to American fair use. The exceptions are listed by statute and construed strictly: the courts may neither create new ones nor extend existing ones beyond their terms. The list includes private performances given free of charge within the family circle, private copying, analysis and short quotation, press reviews, the dissemination of public speeches, parody, the teaching exception, transient technical reproduction, the exceptions in favour of disabled persons and of libraries, archives and museums, and text and data mining. EU law frames this list: Member States may not adopt an exception absent from Article 5 of Directive 2001/29/EC, and the Court of Justice of the European Union holds that the concepts used in that provision are autonomous concepts of EU law.

Common conditions

Each exception has its own conditions, but all of them require that the work has been disclosed, since no exception can operate against a work that is still unpublished. They are also subject to the three-step test set out in the last paragraph of Article L. 122-5 IPC: they may neither conflict with the normal exploitation of the work nor unreasonably prejudice the legitimate interests of the author. Some exceptions are compensated by remuneration, such as the private copying levy or the negotiated remuneration for the teaching exception, while others are free. Moral rights must still be respected, quotation for instance requiring that the author’s name and the source be indicated.

Litigation

An exception is a defence: the party relying on it must establish that its conditions are met, the interference with the monopoly being otherwise made out. The benefit of an exception may be secured against technological protection measures, and the Regulatory Authority for Audiovisual and Digital Communication may be seised for that purpose. Since the transposition of Directive (EU) 2019/790, content-sharing platforms must preserve the effective use of quotation, criticism and parody by their users.

Key points

The exceptions are exhaustively listed, strictly construed and subject to the three-step test. They apply only to disclosed works and leave moral rights intact. Before relying on an exception, check each statutory condition, keep evidence of the source and assess the effect of the use on the normal exploitation of the work. Where in doubt, a contractual authorisation remains the safest course.

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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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