France

[FR] Regulatory Authority for Audiovisual and Digital Communication (ARCOM) officially established

IRIS 2021-10:1/5

Amélie Blocman

Légipresse

The hotly anticipated law on the regulation and protection of access to cultural works in the digital age has been promulgated, six months after it was presented to the Council of Ministers. The text incorporates some of the provisions of the bill on audiovisual communication and cultural sovereignty in the digital age that was tabled by the government in late 2019, examination of which was interrupted by the health crisis.

The law has two main objectives. Firstly, in Chapters 1 and 2, it provides for the creation of the Autorité de régulation de la communication audiovisuelle et numérique (Regulatory Authority for Audiovisual and Digital Communication – ARCOM) on 1 January 2022 through the merger of the Conseil supérieur de l'audiovisuel (National Audiovisual Regulatory Authority – CSA) with the Hadopi (High Authority for the Dissemination of Works and the Protection of Rights on the Internet). The idea is to create a regulator with broader powers, especially in the creative chain, from fixing obligations to protecting copyright and combating piracy. The new authority will also deal with digital media, the fight against fake news and online hatred, and the regulation of subscription-based video platforms and the obligations imposed on them. ARCOM will therefore “embody the new model of audiovisual and digital regulation”. Its nine members are appointed by decree on the basis of economic, legal or technical expertise or professional experience in the field of communication, in particular the audiovisual sector, or electronic communications. Its president is appointed by the president of the Republic.

Secondly, the law also contains a significant section devoted to the safeguarding of cultural creativity, strengthening measures to combat Internet piracy on streaming, direct download and referencing websites that make money by providing online access to works in breach of copyright, in particular by creating a ‘blacklisting’ mechanism and a system for combating mirror sites. It also makes provision, in the Sports Code, for an emergency ad hoc mechanism for stopping the illegal retransmission of sports events and competitions.

Finally, the law adds a new section to the Cinema and Animated Images Code in order to protect public access to cinematographic and audiovisual works (Chapter 3). Under existing legal provisions, it was not possible, within the context of free movement of capital as defined by European law, to guarantee public access to French works from audiovisual or film catalogues that were the subject of “predatory” acquisitions by foreign companies or investment funds. The new law extends the continued exploitation obligation set out in Article L.132-27 of the Intellectual Property Code, which currently only applies to producers, to anyone who acquires French works, whatever their status or nationality, requiring them to (i) preserve the technical media on which the work is stored, (ii) endeavour to exploit the work as fully as possible, and (iii) provide annual information to the authors or rightsholders on the measures taken for this purpose. An obligation to give notice six months prior to the transfer of rights will enable the Minister of Culture, if necessary, to impose obligations guaranteeing the continued exploitation of French works in these catalogues.