December 5, 2019

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What brings the new french law "Freedom of creation" ?


After almost three years of discussions the French law on « Freedom of creation, architecture and patrimony » has been promulgated on July 7th. For Audrey Azoulay, French Minister of Culture, "this law, is the fruit of a work that everyone can be proud of, affirms the place of artists and creation in our daily lives, protects even more our cultural legacy and encourages diversity". This ambitious text is made of two section and we will focus on its first part: the freedom of creation.


Before that we linger on the different measures of this law it is to be underlined that for the first time a legislative text will expressly mention the freedom of creation as an accessory of the constitutional principle of freedom of expression. Therefore the first article of the law is « The artistic creation is free ». It makes no doubt that this statement represents a turning point and will be welcomed. Indeed several European countries have already consecrated such freedom and ECHR has firmly stated that «Those who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society » (ECHR, 24 mai 1988, Müller c/Switzerland).


The different measures of the law consider several aspects of the creation: cinema, audio-visual, music, literature and performing arts. We aim to briefly cover the key points and goals of the text.


  • Enhance the transparency in the cinematographic industry in keeping with Bonnell’s report


The cinematographic field will not be completely transfigured by the new law but will benefit from a better regulation. Indeed, the measures regarding cinema are following the recommendations of the Bonnell’s report on the transparency in the cinematographic industry published in 2013. As a consequence the law introduces a new chapter in the French Code of cinema entitled “” This chapter provides some requirements of transparency regarding the production’s accounts and exploitation accounts of the films, which benefits from CNC funds in order to allow the control of the effective use of the allocated funds.


The status of co-producers is strengthened, as they obtain the right to receive production accounts. Thus, in compliance with the new artilce L213-24 of French Code of Cinema executive producers of a full length feature film that benefits from a CNC support for production shall notably « within eight months from the delivery of the cinematographic exploitation visa, establish and transmit the production account of the work to other co-producers, to the companies with which it has concluded a financing contract giving them a profit-sharing profit ". It is also understood that « the production account is also transmitted to any any other natural or legal person with whom the delegated producer has concluded a contract in which such person obtain an interest on the receipts from the exploitation of the work and subject to amortization of the cost of production".


Regarding the exploitation of the film, the accounting by the distributors is established in article L 213-28. Then, for any film supported by CNC, distributor shall transmit the exploitation accounts to the executive producer has follows: "Within six months from theatrical release and at least once a year throughout performance of the contract concluded with the executive producer, " being specified that "The elements of the exploitation account are provided for each mode of exploitation of the work in France as well as for each territory of exploitation of the work abroad, except for those elements which cannot be isolated" This is a great advantage for the producers who are thus guaranteed to obtain from the exploitation accounts from distributors.


Here again, the executive producers shall transmit the exploitation accounts to their co-producers and more generally to any third party with whom they have concluded a contract conferring an interest on exploitation revenues (Article L 213 -32 of French Code of Cinema). Finally, in order to monitor the application of these new obligations, the CNC will be entitled to audit both the production and operating accounts in compliance with articles L. 213­- 27 and L 213-35 of French Code of Cinema.


Towards the authors, we can note two provisions that require more transparency from the producers. An article L 251-1 of the French Code of Intellectual Property provides the obligation for the producers to transmit the production accounts to the authors within 6 months from the completion of the audiovisual work. Also, article L 132-28 is modified and provides that if the producer assigns the rights of the Film to a third party, he shall inform the author beforehand within a month before the effective date of such assignment of rights and also that after the assignment of rights the Producer shall notify the author by registered letter with acknowledgment of receipt within one month.


Of course, these measures will induce some extra-work for the actors of the film industry and notably for the executive producers.


  • Organize audio-visual production


The new law creates a new title V in the French Code of Cinema “Practices of the professions and activities of audiovisual production and distribution "that consists in an unique chapter “Transparency of production and operating account of audiovisual work. Here again, the executive producer, of an audio-visual work and not of a feature film, shall provide its co-producers  - or any third party benefitting from an interest on exploitation revenues - with the production accounts (art. L251-1 and L 251-9 of the French Code of Cinema). Distributors of an audio-visual work shall also transmit the operating account to the executive producers  (art L251-5 of French Cinema Code).  Again, CNC will be entitled to audit both the production and operating accounts (L251-4 et L 251-11). 


Regarding the authors, the provisions in their favor of article L 251-1 and L132-28 of the French Intellectual Property Code, as previously detailed, shall also apply.


  • Regulate musical industry:  


The field of musical creation is also represented in the new law and two main measures are dedicated to music production: transparency requirement and the introduction of a music mediator.


The project aims to enhance the transparency in the relationships between artists and the producers regarding the partition of the revenues. The draft of the law underlined that the artists " ". Therefore the law comes to clarify the artists’ remuneration, to ensure a better protection of their rights and to regulate their relationships with the producers and the online music platforms such as Deezer or Spotify.


A new section is introduced in the French IP code: “Agreements between artists-performers and phonogram producers”.  We can notably note the addition of an article L 212-15 that establishes that: “If a contract is concluded between a performer and a producer of phonograms provides for the direct payment by the producer of a remuneration which is based on the exploitation revenues, the producer of phonograms shall give semi-annual exploitation account to the performer, explicitly and transparently.” We can also mention that the performers are protected by the article L 213-2 of French IP Code that provides that “The agreement concluded by the producer of a phonogram with any publisher of services of communication to the public by electronic means making available musical works sets the conditions for the exploitation of such phonograms in an objective and equitable manner. These conditions may not include discriminatory clauses which are not justified by actual counterparties.”


Above all, the text create a post of music mediator « nominated for three years » which will be the guarantor of the « balanced relationships between professionals ».  The producers, the artists or the platforms could seize this mediator.


As the book mediator, he will help to favor any agreements’ conclusion between music producers, artists and online music platforms, such as codes of good practice. The mediator will be also entitled to the amicable resolution of conflicts that may arise between the different stakeholders of the music industry. The mission of the mediator also includes promoting the adoption of practice codes between different actors of the music industry. This measure is directly inspired by the proposals made by Christian Phéline, Councilor at the Court of audits, in his report transmitted to the former Minister of Culture Aurélie Filipetti. Such a mediator probably will contribute to ease the relationships between authors, producers and broadcasters.


Finally, to better promote French creation the new law aims to make the radio diversify their French programming and states with regards to the broadcasting quota that if more than half of all French speaking musical works broadcasted focuses on no more than ten musical works the broadcasts beyond this threshold will not be taken into account. This should encourage radio stations to vary their programming and allow better renewal of broadcasted titles.


-Encourage access to the literary works:


While presenting the law project, the Minister emphasized that « the issue of access to the published works is particularly important ». It is why the law expands the definition of the audience that shall benefit from the ad hoc exceptions predicted in the French author’s rights.

In a general way it is planned that, if no adapted version of a work is available on the market, the publishers shall transmit their files at no cost in order for them to be adapted for the specific public with disabilities.


If this provision did not raise any actual protests, the book sector remains rather dissatisfied by this law and notably underlines that the cinema and music industries are the most privileged sectors.


As an example it is mentioned that while the law predicts that the authors can come to the Music mediator, the literary authors cannot seize the book mediator and the writers feel particularly put aside by this law. The book authors also wonder why no mention is made regarding the share of their remuneration and of the transparency in the distribution of such shares and would have informed the rapporteur Patrick Bloch of this concern.


  • Ackowledge the diversity of the creation and encourage artistic education


The law seems to set up a broader concept of the artistic creation. Notably the law modifies the French labor code and notably recognizes the circus performers and puppeteers by including them in the list of the performing artists and therefore mitigates the legal risks related to the artistic quality of their professions.


Moreover the text predicts the introduction of an observatory for the creation that will gather the data to come from the ticket offices of the live-performance venues, as it exists for the movie theatre and the museum and exhibition venues. Such an observatory would allow a better knowledge of the economy of the live-performance creation and to develop the relevant public policies according to this economy. With the same perspective some measures provide the acknowledgment of regional cultural labels and of the regional funds for contemporary art.


Finally the new law allows the access to the preparatory school for arts under the ordinary law and thus allowing the access to the state scholarships. Also, the text provides a standardization of the teaching missions of the art schools.


In conclusion, it should be considered that this law has a strong symbolic significance by devoting the freedom of creation, and also contains ambitious provisions for transparency.


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