Key Benefits:
Publics concerned: public libraries, museums, archival services, film or sound heritage institutions, educational institutions, public broadcasting organizations, performers, producers of phonograms and societies for the collection and distribution of the rights of artists-interpreters.
Subject: modalities for the research of prospective holders of rights on an orphaned work, modalities for the exercise of the right of termination by an artist-interpreter of the authorization of exploitation given to a producer of phonograms, modalities for the issuance and withdrawal of the approval granted to companies for the collection and distribution of the rights of performers.
Entry into force: the text comes into force on the day after its publication.
Notice: This Order specifies, on the one hand, the terms and conditions for the application of the new provisions relating to certain uses of orphaned works, including the appropriate sources of information that must be consulted for each category of work in respect of diligent, proven and serious research and the manner in which a rights holder on an orphaned work can demonstrate that its use ceases and fair compensation is paid to it.
On the other hand, it defines the terms and conditions under which an artist-interpreter may terminate the authorization of exploitation given to a producer of phonograms during the additional period of protection and the conditions of accreditation of the company for the collection and distribution of the fees charged with paying annual remuneration due to performers during that same period.
References: this decree, taken for the application of the Act No. 2015-195 of 20 February 2015 bringing various provisions for adaptation to European Union law in the fields of literary and artistic property and cultural heritage, concludes the transposition of Directive 2011/77/EU of the European Parliament and of the Council of 27 September 2011 amending Directive 2006/116/EC of 12 December 2006 on the duration of protection of copyright and certain neighbouring rights and that of Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain authorized uses. The provisions of intellectual property code (regulatory party) Amended by this decree may be consulted, in their drafting, on the website Légifrance (http://www.legifrance.gouv.fr).
The Prime Minister,
On the report of the Minister of Culture and Communications,
Having regard to Directive 2012/28/EU of the European Parliament and the Council of 25 October 2012 on certain authorized uses of orphaned works;
Vu le Intellectual Property Codeincluding articles L. 135-7, L. 212-3-1 and L. 212-3;
Considering the opinion of the National Standards Assessment Committee dated 2 October 2014;
The State Council (inland section) heard,
Decrete:
Title III of Book I of the Intellectual Property Code (regulatory part) is supplemented by a chapter V as follows:
“Chapter V
"Special provisions relating to certain uses of orphaned works
"Art. R. 135-1.-I.-When the searches under 1° of Article L. 135-3 are to take place in France, the sources of information to be consulted shall include at least the following sources:
« 1° For books published:
“(a) Registers of legal deposit;
“(b) Indexes and catalogues of publicly accessible library collections and similar institutions;
"(c) Databases or registers listing printed books, such as WATCH (Writers, Artists and Their Copyright Holders), ISBN (International Standard Book Number), ISNI (International Standard Name Identifier) and the "BALZAC" directory of the Society of Letter People;
"(d) Sources held by publishers and authors associations;
“e) The databases of companies for the collection and distribution of registered rights for the management of the right to reproduction by reprography and for the collective management of the remuneration for the loan in library as well as that mentioned in article L. 134-3 of the Intellectual Property Code;
“(f) Sources that incorporate multiple databases and records, such as ELECTRE, VIAF (Virtual International Authority Files) and ARROW (Accessible Registries of Rights Information and Orphan Works);
« 2° For newspapers, magazines, magazines and other printed periodicals:
“(a) Registers of legal deposit;
“(b) Indexes and catalogues of publicly accessible library collections and collections;
"(c) Databases or records that identify printed periodicals, such as ISSN (International Standard Serial Number) and ISNI (International Standard Name Identifier);
"(d) The register of trade and societies;
“e) Sources held by professional organizations of press publishers and associations of authors and journalists;
“(f) Databases of companies for the collection and distribution of registered rights for the management of reproductive rights by reprography;
“(g) The information in the printed box containing the mandatory legal statements and, if applicable, the name of the editors;
« 3° For visual works, including those relating to fine arts, photography, illustration, design and architecture, and sketches of these works and other works of the same type in books, periodicals or other works:
“(a) The sources listed in 1° and 2°, including the databases of companies for the collection and distribution of registered rights for the management of reproductive rights by reprography;
“(b) Databases of press agencies and photographic agencies and illustrations;
« 4° For unpublished writings forming part of the collections of libraries accessible to the public, museums and archives services:
“(a) Registers of legal deposit;
“(b) Indexes and catalogues of collections of libraries accessible to the public and similar institutions;
« 5° For audiovisual works and phonograms:
“(a) The registers of the legal deposit and the public register of cinema and audiovisual;
“(b) Databases of depositary institutions of cinematographic or sound heritage and public libraries;
"(c) The databases that apply relevant standards and identifiers, such as the International Standard Audiovisual Number, for audiovisual equipment, the International Standard Musical Work Code, for musical works and the International Standard Recording Code for phonograms;
"(d) Sources held by producer associations or other relevant professional associations or organizations representing a specific category of rights holders;
“e) The databases of companies that collect and distribute the rights concerned, in particular those that include authors, performers, producers of phonograms and audiovisual producers;
“(f) The generic of the work and other information on the packaging of it.
"II.-Where the research under Article L. 135-1 is to take place in another Member State of the European Union, the sources of information to be consulted shall include at least the sources defined in that State in accordance with Article 3, paragraphs 2 and 3, of Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012.
"The organization also conducts research of rights holders from similar sources existing in other states when it results from those carried out under the first and second paragraphs that relevant information is likely to be available.
"Art. R. 135-2.-The organization referred to in section L. 135-3 shall keep a record specifying the date and result of the consultation of all sources referred to in section R. 135-1. It retains the supporting documentation of these consultations.
"For the purposes of 2° of section L. 135-3, the organization shall communicate to the Minister responsible for culture the contact information of the person or service to which the holders of the rights on the work must address to end the uses set out in section L. 135-2.
"Art. R. 135-3.-The information provided for in section L. 135-4 shall be communicated to the Minister responsible for culture, with a view to their timely transmission to the Office of Harmonization in the domestic market referred to in section 2 L. 135-3.
"Art. R. 135-4.-The rationale for the rights provided for in Article L. 135-6 shall be submitted by registered letter with a request for notice of receipt or electronically with a request for an acknowledgement of receipt.
"In support of his application, the author produces a copy of an identity document and a statement of honour attesting to his quality. In addition, his prospective eligible persons are notified of their quality. Other rights holders shall produce, in addition to copying an identity document, any document that may justify their rights. »
After section R. 212-7 of the same code (regulatory portion), an article R. 212-8 is inserted as follows:
"Art. R. 212-8.-I.-The artist-interpreter who wishes to exercise the right to terminate the authorization given to a producer of phonograms provided for in Article L. 212-3-1 shall notify the producer of his intention to terminate by registered letter with request for notice of receipt.
“The notification specifies:
"-the name, name and address of the artist-interpret;
"the title, the International Standard Registration Code (ISRC code) or any other means to identify the phonogram that is not operated under the conditions set out in I of Article L. 212-3-1.
"The termination period referred to in Article L. 212-3-1 shall be short of the date on the stamp of the position.
"II.-The artist-interpreter shall exercise the right to terminate the authorization given to a producer of phonograms in II of Article L. 212-3-1, notifying the producer of his decision to terminate by registered letter with a request for notice of receipt.
“The notification specifies:
"-the name, name and address of the artist-interpret;
"the date of the notification provided in I.
"Resiliation takes effect on the day after the date on the post stamp.
"III.-When a phonogram contains the fixing of the performances of several artists-interprets, they jointly notify their intention to terminate and their decision to terminate under the conditions set out in I and II."
Title II of Book III of the same Code (regulatory part) is supplemented by Chapter VIII as follows:
“Chapter VIII
"Accredited companies for the collective management of additional annual remuneration due to performers
"Art. R. 328-1.-A corporation governed by title II of Book III may be approved under section L. 212-3-3 if it:
« 1° Provides evidence, by the composition of its legislative and executive bodies, of the diversity of its associates due to the categories and the number of eligible persons, of the economic importance expressed in income or revenue;
« 2° Provides proof of the representation of artists and performers in its governing bodies;
"3° Justifies, by any means, the professional qualification of its managers and social agents because:
“(a) Their quality as artists-interprets;
“(b) Or the nature and level of their degrees;
"(c) Or their experience in managing professional organizations;
« 4° Provides the necessary information on:
“(a) Administrative organization and installation and equipment conditions;
“(b) The means used for the collection of remuneration and the processing of data necessary for the distribution of such remuneration;
"(c) The funding plan and the forecast budget for the three fiscal years following the application for approval;
« 5° Provides the necessary information on how to identify and track down artists for the purpose of distributing the sums collected.
"Art. R. 328-2.-The application for approval, together with a record prepared in accordance with section R. 328-1, is forwarded by registered letter with a request for a notice of receipt to the Minister responsible for culture, who issues it. When the file is not complete, the Minister responsible for culture requests by registered letter with a request for a notice of receipt a supplementary file, which must be submitted in the same form within one month of receipt of the letter.
"Art. R. 328-3.- Accreditation is issued by order of the Minister for Culture, published in the Official Journal of the French Republic.
"Art. R. 328-4.-Agreement is granted for five years. It is renewable under the same conditions as the initial approval.
"Art. R. 328-5.-Any change in status or general regulation and any termination of the functions of a member of the legislative and executive bodies of a registered corporation shall be communicated to the Minister responsible for culture within fifteen days of the corresponding event. The failure to report may result in the withdrawal of the licence.
"Art. R. 328-6.-If a registered corporation ceases to meet one of the conditions set out in section R. 328-1, the Minister for Culture shall, in writing, continue to respect the conditions of the approval. The licensee shall have a period of one month to submit its observations and, where appropriate, the compliance measures it intends to implement.
"The withdrawal of the accreditation is pronounced by decree of the Minister responsible for culture, published in the Official Journal of the French Republic. »
I. - At 1° of article R. 811-1 of the intellectual property code, the words "and R. 133-2 (4°)" are replaced by the words ", R. 133-2 (4°) and R. 135-1 to R. 135-4".
II. - Articles 2 and 3 of this decree are applicable in the Wallis and Futuna Islands.
The Minister of Culture and Communication is responsible for the execution of this Order, which will be published in the Official Journal of the French Republic.
Done on May 6, 2015.
Manuel Valls
By the Prime Minister:
Minister of Culture and Communication,
Flower Pellerin
