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.
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| Visiting castles can make you thirsty |
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.
