Sunday, 12 November 2017

Does the Commercial Exploitation of France’s National Domain Violate the Constitution?

Article L. 621-42  of the French Code du patrimoine (heritage Code) authorizes using the image of a building belonging to France’s national domain for commercial purposes, in any medium, if such use has been authorized by the manager of the building, by unilateral act or contract, free of charge or with financial compensation. No authorization is, however, required, if “the image is used in the exercise of public service missions or for cultural, artistic, educational, teaching, research and information purposes and illustration of the news.”

This is a recent law, as this article was introduced by the July 7, 2016 law, no. 2016-925 about freedom to create, architecture and heritage) in order to provide buildings belonging to the national domain, such as the Louvre, Chambord, or Fontainebleau, an opportunity to financially gain from the commercial use of their image.

This law was enacted after the castle of Chambord unsuccessfully tried to prevent the commercial use of its image for advertising a beer. The image of the castle had also been used on a special edition of beer bottles.

Visiting castles can make you thirsty 


NGOs La Quadrature du Net and Wikimedia recently joined forces to challenge the constitutionality of the decree implementing article L. 621-42, which created article R.621-99 of the Code du patrimoine. This article gives power to the authority in charge of the national domain to negotiate the financial conditions for the commercial use of its image. From plaintiffs’ point of view, the buildings in France’s national domain are in the public domain, and thus free to be used, even for commercial purpose.

They argued that the access to culture is a human right, protected by article 14 of the European Convention on Human Rights, article 10 and 11 of the French Declaration of Human Rights,  and by the Preamble to the French Constitution, which guarantee equal access to culture for all, and that therefore article R.621-99 violated the Constitution.

They also argued that the public domain is protected by article 1 of Directive 2006/116/EC on the term of protection of copyright and certain related rights, which states that a literary or artistic work revert to the public domain 70 years after the death of the author, irrespective of the date when the work is lawfully made available to the public. As article 2 of the Berne Convention includes architecture in its definition of literary and artistic works, they concluded that works of architecture in France’s national domain are in the public domain, and that the lawmakers cannot “artificially revive exploitation rights.”

The Ministry of Culture argued in defense, rather surprisingly, that “[i]t has never been the intention of the lawmaker to establish a regime guaranteeing free exploitation of a work after the extinction of the economic rights of its owner.” Unless this refers to moral rights, which are perpetual and may sometimes impinge the commercial exploitation of a work, this argument denies a basic concept of French copyright.

On October 25, the French Council of State, France’s highest administrative court, agreed to their request to ask the Constitutional Council whether article R.621-99 violated the Constitution. The Constitutional Council will now decide within 3 months whether the commercial exploitation of buildings in the public domain, but belonging to France’s national domain, violates French Constitution. We’ll keep you informed.

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