HADOPI full translation

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CHAPTER II

Clauses modifying law 2004-575 of 21 June 2004 for confidence in the digital economy

Article 13

1 of I of article 6 of law 2004-575 of 21 June 2004 for confidence in the digital economy is amended by the addition of a paragraph as follows:

"The entities set forth in the preceding paragraph inform them also of the existence of means of security able to warn of violations of the obligation defined in article L. 336-3 of the intellectual property code and and proposing to them at least one of the methods on the list set forth in the second paragraph of article L. 331-32 of the same code."

CHAPTER III

Clauses modifying the code of mail and electronic communications

Article 14

To the first sentence of II of article L. 34-1 of the code of mail and electronic communications, after the words "penal infractions" are inserted the words "of a violation of the obligation defined in article L. 336-3 of the intellectual property code", and after the words "the judicial authority" are inserted the words "or of the High Authority mentioned in article L. 331-12 of the intellectual property code".

CHAPTER IV

Clauses modifying the education code

Article 15

Article L. 312-6 of the education code is amended by the addition of a paragraph as follows:

"In the framework of these teachings, students are informed of the dangers of downloading and of illicitly making available works or objects protected by a right of authorship or a related right for artistic creation."

Article 16

Article L. 312-9 of the education code is amended by the addition of a paragraph as follows:

"Within this framework, in particular when preparing secondary students for the certificate in informatics and Internet, they receive from teachers previously sensitized in this subject information on the risks associated with using public on line communication services, on the dangers of downloading and illicitly making available works and objects protected by a right of authorship or a related right for artistic creation, as well as the sanctions for violating the obligation defined in article L. 336-3 of the intellectual property code and the crime of counterfeiting. This information also covers the existense of legal offerings of works and objects protected by a right of authorship or a related right on public on line communication services."

CHAPTER V

Clauses modifying the film industry code

Article 17

Title II of the film industry code is amended by the addition of a chapter IV as follows:

"CHAPTER IV

"Delays in the exploitation of cinematographic works

"Art. 30-4 - A cinematographic work may be exploited in the form of video recordings intended for sale or rental for private use by the public at large at the expiration of a delay of four months counting from the date of its first showing in cinema theaters. The stipulations of the contract for acquiring rights for this exploitation may derogate this delay under the conditions set forth in the second paragraph. The stipulations of the contract for acquiring right for this exploitation predict the conditions under which may be applied a longer delay in conformance with the modalities set forth in the third paragraph.

"Establishing a shorter delay is depends on a showing by the national Center for cinematography, particularly in light of the results of displaying the cinematographic work in cinema theaters, of a derogation giving under the conditions fixed by decree of the Council of State. This derogation may not effectually reduce the delay by more than four weeks.

"Complaints related to setting a longer delay may be subject to mediation by the cinema mediator in the framework of the aims confided in him by article 92 of law 82-652 of 29 July 1982 on audiovisual communication.

"Art. 30-5. - I. - The contract agreed upon by a producer of on-demand audiovisual media services for the acquisition of rights related to making publically available a cinematographic work incorporate the delay to the term in which this availability may intervene.

"When there exists a professional agreement bearing on the delay applicable to a method of exploiting cinematographic works by on-demand audiovisual media services, the delay expected under this agreement applies to the producers of services and to the signatory members of professional organizations. This agreement may bear on one or several categories of services. It may be made mandatory for all the interested parties of the sectors of activity and the producers of services concerned under the conditions set forth in article 30-7.

"In the absence of a professional agreement made mandatory within a month counting from the publication of law [number unassigned] encouraging the dissemination and the protection of creation on Internet, the cinematographic work may be made publically available by a producer of on-demand audiovisual services under the conditions set forth in article 30-4 for services paid per use and under the conditions set forth by decree for other services.

"The contract agreed upon by a producer of television services for the acquisition of rights relative to the dissemination of a cinematographic work incorporate the delay to the period in which this dissemination may intervene.

"When there exists a professional agreement bearing on the delay application to the mode of exploitation of cinematographic works by the television services, the delay set forth by this agreement is binding on the producers of services and on members of the signatory professional organizations. This agreement may bear on one or several categories of services. It may become mandatory for all interested parties of the sectors of activity and for the producers of the relevant services under the conditions set forth in article 30-7.

"The professional agreements mentioned in articles 30-5 and 30-6 may become mandatory by order of the minister of culture if they have been signed by the professional organizations representing the cinema sector, and, depending on the case:

"- one or several professional organizations representing the relevant sectors;

"- one or several professional organizations representing the relevant sectors and a group of the producers of services representative of one or several categories of services;

"- a group of the producers of services representative of one or several categories of services.

"The extent to which a professional organization or a group of producers of services is representative is proportional in particular to the number of operators concerned and to their importance in the market under consideration. If the need arises to determine the extent to which a professional organization of a group of producers of services is representative, they furnish the minister of culture the elements they have to show this importance.

"Subject to the sanction set forth in 2 of article 13:

"1 Disregard for the minimum delay resulting from the clauses in article 30-4 and the decree mentioned in II or article 30-5;

"2 Disregard for the delay set forth by a professional agreement made mandatory under the conditions set forth in article 30-7."

CHAPTER VI

Various clauses

Article 18

In the second sentence of the second paragraph of article L. 462-1 of the commercial code, after the word "industry" are inserted the words "of the High Authority for the dissemination of works and the protection of rights on Internet,".

Article 19

I. - A decree of the Council of State sets forth the modalities according to which the obligations to which are subject, in applying articles L. 331-31, L. 331-33, L. 331-34 and L. 331-35 of the intellectual property code, entities whose activity is to offer access to public on line communication services come into force, particularly concerning contracts in course.

II. - Articles L. 331-5 to L. 331-45 of the same code, in their edited form resulting from this law, come into force on the date of the first meeting of the High Authority for the dissemination of works and the protection of rights on Internet, and at the latest 1 November 2009.

III. - Procedures in course before the Authority for regulating technical measures at the date of the first meeting of the High Authority for the diffusion of works and the protection of rights on Internet are to be pursued automatically before the governing body of the High Authority.

IV. - For the constitution of the governing body of the High Authority mentioned in article L. 331-16 of the same code, the president is elected for six years. The term of office of the other eight members is established by drawing lots at two years for three of them, at four years for three others, and at six years for the two last.

For the constitution of the committee for protection of rights mentioned in article L. 331-17 of the same code, the president is named for six years. The term of office for the two other members is established by drawing lots at two years for one of them and at four years for the other.

The measures set forth in articles L. 331-27 and L. 331-28 of the intellectual property code, in their changed form resulting from this law, may not be taken unless the new violation, following on those which justified applying the recommendations mentioned in article L. 331-26 of the intellectual property code, was committed after the expiration of a delay of three months following the first publication by the High Authority, of the list mentioned in article L. 331-32 of the same code, in its form resulting from this law.

Article 20

I. - The intellectual property code is changed as follows:

1 The last paragraph of article L. 121-8 is replaced with two paragraphs as follows:

"For all works published by the press in the sense of article L. 132-35, the author retains, unless it is stipulated to the contrary, the right to reproduce and to exploit his works in any form whatever, except for rights ceded under the conditions set forth in section 6 of chapter II of title III of book I.

"In all cases, the author's exercise of his right supposes that this reproduction or this exploitation is not such as to compete with this press title.";

2 Chapter II of title III of book I of the first part is amended by the addition of a section 6 as follows:

"Section 6

"Right to exploit the works of journalists

"Art. L. 132-35. - By press title is understood, in the sense of this section, the organ of the press to which the professional journalist has contributed, as well as all versions of the title in any form, any means of dissemination and consultation. Excluded are audiovisual communication services in the sense of article 2 of law 86-1067 of 30 September 1986 relating to freedom of communication.

"Included within publication under a press title is the dissemination of all or part of its contents by a public on line communication service or by any other service, produced by a third party, when such dissemination is made under the editorial control of the director of the publication whose content is disseminated or when it appears in a space dedicated to the press title from which the disseminated content is extracted.

"Also included within publication under a press title is the dissemination of all or part of its content by a public on line communication service produced by the press enterprise or by the group to which it belongs or produced under their responsibility, where the aforementioned press title is required to appear.

"Art. L. 132-36. - Except for the clauses of article L. 121-8, the convention binding a journalist who is professional or included within the sense of articles L. 7111-3 and following of the labor code, who contributes either permanently or part time to the work of a press title, and his employer accords to the owner, unless stipulated to the contrary, exclusive possession of the rights of exploitation of the journalist's works made in the framework of this title, whether published or not.

"Art. L. 132-37. - The exploitation of the journalist's work in differeent media, in the framework of the press title defined in article L. 132-15 of this code, has as its sole reward the salary, during a period fixed by agreement with the enterprise or, by default, by any other collective agreement in the sens of articles L. 222-1 and following of the labor code.

"This period is determined taking into consideration particularly the periodicity of the press title and the nature of its contents.

"Art. L. 132-38. - The exploitation of the work in the press title, after the period set forth in article L. 132-37, is remunerated in the form of authorial rights or salary, under conditions determined by the agreement with the enterprise or, by default, by any other collective agreement.

"Art. L. 132-39. - When the producing company or the company which controls it, in the sense of article L. 233-16 of the commercial code, produces several press titles, an enterprise-wide agreement may set forth the dissemination of the work by other titles of this business or the group to which it belongs, if these titles and the initial press title belong to the same coherent press family. This agreement defines the notion of coherent press family or establishes the list of each of the press titles concerned.

"The exploitation of the journalist's work within the coherent press family must incorporate permit the identification of the said journalist and, if the agreement sets it forth, the press title in which the work was first published.

"These re-uses outside the press title such as defined in article L. 132-35 of this code give rise to remuneration, in the form of authorial rights or salary, under conditions determined by the enterprise-wide agreement mentioned in the first paragraph of this article.

"Art. L. 132-40. - Any cession to exploit the work outside the initial press title or of a coherent press family must be by an express agreement made beforehand by its individual author or under a collective agreement, without prejudice in the second case to the exercise to the journalist's moral right.

"These uses give rise to remuneration in the form of authorial rights under the conditions determined by individual or collective agreement.

"Art. L. 132-41. - When the author of a fixed image is a professional journalist who earns most of his income from exploiting such works or who works part time in preparing a press title, the cession of the rights of exploitation such as set forth in article L. 132-36 does not apply unless this work was ordered by the press enterprise.

"The conditions under which the second paragraph of article L. 121-8 apply to ceded works in applying the first paragraph of this article are specified by a collective or individual agreement.

"Art. L. 132-42. - The authorial rights mentioned in articles L. 132-38 and following are not in the form of salary. They are determined in confirmance with articles L. 131-4 and L. 132-6.

"Art. L. 132-43. - Collective agreements may assign the management of rights mentioned in articles L. 132-38 and following to one of the societies for managing rights mentioned in articles L. 321-1 and following.

"Art. L. 132-44. - A committee is created, headed by a representative of the State, and further composed in half by representatives of representative professional press organizations and in half by representatives of representative unions of professional journalists.

"The State representative is appointed from among the members of the Supreme Court, the Council of State or the Accounting Court, by decree of the minister for communication.

"Unless there is an enterprise-wide agreement is concluded within six months counting from the publication of law [number unassigned] encouraging the dissemination and protection of creation on Internet, and in the absence of any other applicable collective agreement, one of the parties to negotiating the enterprise-wide agreement may approach the committee to determine the modes and bases of the remuneration due in exchange for rights of exploitation. The demand may also bear on the identification of the titles comprising a coherent press family within the group, in application of article L. 132-39.

"For enterprise-wide agreements concluded for a fixed duration which expire or for those which are rejected by one of the parties, the committee may be approached under the same conditions and for the same questions as in the preceding paragraph, if no enterprise-wide agreement is reached in the six months following the date of the expiration of the agreement of fixed duration or lacking the formation of a substitute agreement within the delay set forth in article L. 2261-10 of the labor code following rejection of the previous agreement.

"The committee seeks with the parties a compromise solution to arrive at an agreement. To this end it may refer to existing relevant agreements with respect to the form of press under consideration. It renders its decision within a delay of two months counting from when it is approached.

"The committee makes its decision by a majority of its members present. In case of tie, the president's vote is decisive.

"The decisions of the committee come into force if, within one month, its president has not demanded a second deliberation. They are communicated to the parties and to the minister of communication, who assures that they are published.

"The intervention of the committee's decision does not prevent the press businesses concerned from engating in a new collective negotiating. The collective agreement resulting from this negotiation replaces the committee's decision, after it is filed with the more diligent party with the administrative authority, conformant with article L. 2231-6 of the labor code.

"A decree of the Council of State sets the conditions of application of this article, in particular the composition, the modalities of involvement, and the functioning of the committee as well as the means of legal recourse against its decisions.

"Art. L. 132-45. - Article L. 132-41 applies counting from the entry into force of a branch agreement determining the minimum salary of professional journalists who make their principal income from the exploitation of fixed images and who work part time on a press title. This agreement takes account of whether the cession is exclusive or not.

"In the absence of an agreement within two years counting from the publication of law [number unassigned] encouraging the dissemination and protection of creation on Internet, a decree establishes the conditions which determine this minimum salary."

II. - The labor code is changed as follows:

1 After article L. 7111-5 is inserted an article L. 7111-5-1 as follows:

"Art. L. 7111-5-1. - Collaboration between a press business and a professional journalist applies to the entirety of means of publication of the press title such as defined in the first paragraph of article L. 132-35 of the intellectual property code, unless stipulated to the contrary in the work contract or in any other regular convention.";

2 Article L. 7113-2 is changed as follows:

"Art. L. 7113-2. - All work ordered or accepted by the producer of a press title in the sense of article L. 132-35 of the intellectual property code, whatever its means of publication, is remunerated, even if it is not published.";

3 Chapter III of title I of book I of the seventh part is amended by the addition of two articles L. 7113-3 and L. 7113-4 as follows:

"Art. L. 7113-3. - When the work of a professional journalist gives rise to publication under conditions defined in article L. 132-37 of the intellectual property code, the remuneration which he receives is a salary.

"Art. L. 7113-4. - The mandatory negotiation set forth in articles L. 2241-1 and L. 2241-8 bear also on salaries paid to professional journalists who contribute, either permanently or part time, to a press title."

III. - After article L. 382-14 of the social security code is inserted an article L. 382-14-1 as follows:

"Art. L. 382-14-1. - Income paid in application of article L. 132-42 of the intellectual property code are subject to deductions for social insurance and family allocations under conditions set forth in this chapter."

IV. - During the three years following publication of this law, agreements related to the exploitation of the different means of publication of journalists' works signed before the entry into force of this law continue to apply until their date of expiry, unless rejected by one of the parties. In press businesses where such agreements have not been concluded by the date of entry into force of this law, agreements mentioned in article L. 132-37 of the intellectual property code determin, in particular, the amount of remuneration owed to professional journalists in application of articles L. 132-38 to L. 132-40 of the same code, for the period comprising the entry into force of this law and the entry into force of these agreements.

Article 21

I. - The beginning of 8 of article L. 122-5 of the intellectual property code is changed as follows:

"8 The reproduction of a work or its representation made for the purpose of conservation or to preserve the conditions to consult it for purposes of research or private study by individuals, on the site of the establishment and on terminals for that purpose in libraries... (the rest unchanged)".

II. - In 7 of article L. 211-3 of the same code, after the word "reproduction" are inserted the words "and of representation" and the words "on site" are replaces with the words "for purposes of research or private study by individuals, on the site of the establishment and on terminals for that purpose".

Article 22

In the second sentence of the first paragraph of article 15 of law 2006-961 of 1 August 2006 concerning the right of authorship and of related rights in the information society, the words "is required to transmit to this service" are replaced with the words "is required, at the request of this service, to transmit to it".

Article 23

I. - Deleted:

1 Article 89 of law 82-652 of 29 July 1982 on audiovisual communication;

2 Article 70-1 as well as the third and fourth paragraphs of article 79 of law 86-1067 of 30 September 1986 concerning freedom of communication

II. - In the penultimate paragraph of IV of article 30-2 of law 86-1067 of 30 September 1986 concerning freedom of communication, the referencd "L. 331-11" is replaced with the reference "L. 331-9".

III. - 1. law 96-299 of 10 April 1996 concerning experimentation in the area of information technologies and services is deleted.

2. In article 15 of law 97-283 of 27 March 1997 bringing into the intellectual property code EC Council directives 93/83 of 27 September 1993 and 93/98 of 29 October 1993, the words "mentioned in article 3 of law 96-299 of 10 April 1996 concerning experimentation in the area of information technologies and services" are deleted.

3. III of article 22 of law 96-659 of 26 July 1996 regulating telecommunications is deleted.

4. Article 18 of law 99-533 of 25 June 1999 orienting toward the durable management and development of the land and modifying law 95-115 of 4 February 1995 orienting toward the durable management and development of the land is deleted.

Article 24

The fifth paragraph of article 99 of law 86-1067 of 30 September 1986 previously cited is changed as follows:

1 In the first sentence, after the word "analogue" are inserted the words "unencrypted national services";

2 After the first sentence is inserted a sentence as follows:

"It establishes, at least three months in advance, for each geographic zone, the date when analog transmission of local and national services whose authorization for this mode expires before 30 November 2011."

Article 25

I. - The national Center for Cinematography is charged to initiate or set out, before 30 June 2009, setting up a reference portal to encourage the development of legal offerings of French or European cinematographic works.

II. - Within three months counting from the entry into validity of this law, public on line communication services that propose the on line sale of sound recordings form, for the exploitation of this service and respecting recognized rights and exclusivities, an agreement to commercialize these sound recordings in the framework of an offer without technical protection measures when this does not permit interoperability.

Article 26

I. - Except for articles 15 and 16, of III de of article 27 and of article 28, this law applies to Wallis and Futuna and in New Caledonia.

II. Article L. 811-1 of the intellectual property code is changed as follows:

1 The words "Mayotte except for the fourth paragraph of article L. 335-4 and articles L. 133-1 to L. 133-4 and taking account of changes set forth in the following articles. Taking the same account, they are applicable" and the words ", in the southern Territories and French Antartic" are deleted;

2 After the first paragraph are inserted two paragraphs as follows:

"Not applicable in Mayotte are articles L. 133-1 to L. 133-4, as well as the fourth paragraph of article L. 335-4.

"Not applicable in the southern Territories and French Antartictic are articles L. 133-1 to L. 133-4, L. 421-1 to L. 422-13 and L. 423-2, as well as the fourth paragraph of article L. 335-4."

III. - The first paragraph of article L. 811-2 of the same code is changed as follows:

"For the application of this code in Mayotte and in the southern Territories and French Antarctic as well as for the application of the clauses which it makes applicable in French Polynesia, in the Wallis and Futuna islands and in New Caledonia, the following words enumerated below are respectively replaced with the following words:

IV. - 2 of I and II of article 23, article 24 and I and II of article 27 of this law are applicable in French Polynesia.

Article 27

I. - Article 1 of law 86-897 of 1 August 1986 reforming the legal environment of the press is amended by the addition of two paragraphs as follows:

"On line press services are taken to mean any public on line communication service of a professional nature by a natural person or an entity with independent legal standing which controls its editorial content, consistent with producing and making available to the public original content of general interest, regularly renewed, made up of information presenting a link with news and treated in a journalistic way, which does not consist of a tool of promotion or an accessory to ain industrial or commercial activity.

"A decree specifies the conditions under which an on line press service may be recognized, taking note particularly to benefit from the advantages thereto pertaining. For on line press services presenting information of political and general nature, this recognition implies using, in a regular way, at least one journalist who is a professional in the sense of article L.l 7111-3 of the labor code."

II. - Article 93-3 of law 82-652 of 29 July 1982 on audiovisual communication is amended by the addition of a paragraph as follows:

"When the infraction results from the content of a message sent by a user to a public on line communication service and made publically available by this service in a space for personal contributions identified as such, the director or codirector of publication is not penally responsible as principal author if it is established that he had no effective knowledge of the message before it was placed on line or if, from the moment when he became aware of it, he acted promptly to remove this message."

III. - After 1(2) of article 1458 of the general tax code is inserted a 1 part 3 as follows:

"1(3) On line press services recognized as of 1 January of the year of impisition of the conditions specified by the decree set forth in the third paragraph of article 1 of law 86-897 of 1 August 1986 reforming the legal environment of the press;

IV. - III applies to impositions established counting from the year which follows the publication of the decree set forth in the third paragraph of article 1 of law 86-897 of 1 August 1986 reforming the legal environment of the press in its version resulting from this article, and at the latest counting from 31 December 2009.

Article 28

I. - Article 39(2) A of the general tax code is changed as follows:

A. - 1 is changed as follows:

1 In the first paragraph, after the word "general" are inserted the words ", or an on line press service recognized under article 1 of law 86-897 of 1 August 1986 reforming of the legal environment of the press, devoted in large part to political and general information";

2 (a) is changed as follows:

a) After the word "exploitation" are inserted the words "of the on line press service,";

b) After the first and the third occurrences of the word "enterprises" the words "of the press" are deleted;

c) After the word "paragraph" are inserted the words "or the exploitation of an on line press service mentioned in the same paragraph";

3 In (b) the words ", excerpted from the periodical or the publication," are deleted;

4 After (b) is inserted a (c) as follows:

"c) Fixed expenses allocatable to research, to technical development and to innovation at the profit of the on line press service, periodical, or publication.";

B. - 2 is changed as follows:

1 In the first sentence of the first paragraph, after the word "publications" are inserted the words "and for recognized on line press services";

2 After the first sentence of the first paragraph is inserted a sentence as follows:

"For the application of the preceding sentence, the limit is calculated for businesses exploiting a recognized on line press service and engaged in other activities, beginning with the sole profit taken from this on line press service";

C. - In 2(2), the words "mentioned in 1 and 2 which are considered" are replaced with the words "and of the on line press services mentioned in 1 and 2 which are considered";

D. - In the second paragraph of 3, after the words "of publications" are inserted the words "and for recognized on line press services".

II. - I applies to undertakings concluded counting from the publication of this law.