Policy Observatory
The new French law targeting "automated image referencing services": does EU law allow it?
Sun 23 Oct 2016, 11:40
Earlier this year France adopted Loi No 2016-925 on freedom of creation, architecture and cultural heritage which - among other things - introduced new provisions to regulate the exercise of the exclusive rights of reproduction and representation vis-à-vis automated image referencing services.
As explained by Brad Spitz in a post published on the Kluwer Copyright Blog, "the new provisions will apply to ‘automated image search services’, which Article L.136-1 IPC defines as any online public communication service that reproduces and makes available to the public for purposes of indexing and SEO, plastic, graphic or photographic works, collected in an automated way from online public communication services (i.e. internet websites). In other words, these provisions target search engine services like Google Images." Spitz also adds that Article L.136-1 IPC specifies that the images have to be ‘reproduced and made available’ by the image search services. This suggests that an act of reproduction is needed in order to trigger the entire mechanism envisaged by Loi No 2016-925. Lacking reproduction, no permission would be needed.
But: permission from whom? Article 136-2(1) CPI answers that, by saying that the publication of a plastic artwork, graphic or photographic work by an online communication service will be now subject to the consent - not of authors - but rather one or more collecting societies appointed to this end by the French Ministry of Culture.