France Update: NEW LEGAL TOOLS TO FIGHT AGAINST NEW FORMS OF PIRACY: LAW NO. 2021-1382 OF 25 OCTOBER 2021 ON THE REGULATION AND PROTECTION OF ACCESS TO CULTURAL WORKS IN THE DIGITAL AGE

We welcome the adoption of this law, which aims to better protect creation against modern forms of piracy by providing France with a new independent administrative authority: the Regulatory Authority for Audiovisual and Digital Communication (ARCOM).

The law also creates two judicial procedures of original so-called “dynamic” orders, in order to better fight against circumvention sites (or “mirror sites”) containing the content of a counterfeit site whose blocking has already been ordered by the courts, on the one hand, and against sites illegally broadcasting a sports competition, on the other hand. In both cases, ARCOM will act as an intermediary between the rightholders and the persons in charge of blocking, withdrawing or de-referencing. In addition, the Law entrusts ARCOM with the task of establishing a “black list” of massively counterfeit sites, in order to encourage advertisers to terminate their commercial relations with these sites.

Creation of the Regulatory Authority for Audiovisual and Digital Communication – ARCOM

ARCOM, an independent administrative authority, is the result of the merger of the High Authority for the Protection of Rights on the Internet (Hadopi) and the Conseil supérieur de l’audiovisuel (CSA). At 1^er January 2022, HADOPI will be dissolved and the CSA will take the name of ARCOM. ARCOM is endowed with more powers (conciliation procedure, investigative powers), both in the field of the protection of works and in that of the regulation of audiovisual and digital (fight against piracy, protection of minors, fight against disinformation and online hatred) and ensures more effective sharing of information with the Competition Authority.

ARCOM will have nine members: three appointed by the President of the Senate, three by the President of the National Assembly, two respectively by the Council of State and the Court of Cassation. The President of ARCOM is appointed by the President of the Republic after the opinion of Parliament.

Creation of a “blacklist” of counterfeit sites

This measure tends to make public a list of counterfeit sites and ultimately to attack the advertising resources of pirate sites according to the so-called “follow the money” strategy, by forcing advertisers to make public any commercial relationship with a site on the blacklist. In addition, this public list will support the legal actions of rights holders.

Article L. 331-25 of the Intellectual Property Code thus allows ARCOM to establish a list of sites “seriously and repeatedly infringing copyright or related rights”. Once established, the list will be made public and will have the purpose of obliging advertisers, advertising agencies and other payment services to publicly declare, at least once a year, the existence of the business relationships they have with the sites on the list.

Creating dynamic prescriptions

The law creates a new section 3 integrated into Chapter III of Title III of Book III of the Code of Sport, entitled: “Fight against the illegal retransmission of sports events and competitions” and comprising two articles: Article L. 333-10 and L. 333-11.

Pursuant to Article L. 333-10 of the Sports Code, any rightholder (professional league, exclusive broadcaster) may, according to the accelerated procedure on the merits or in summary proceedings, refer the matter to the President of the Judicial Court in order to obtain all “proportionate measures to prevent or put an end to this infringement, against any person likely to contribute to remedying it” such as blocking measures, removal or de-referencing of a site.

In the event that the site is not identified on the date of the order of the Court, the rightholder may communicate to ARCOM the data identifying the infringing communication service in question, so that he can order the persons concerned by the order, such as internet service providers, to also make access to those services impossible.

ARCOM will also be able to extend judicial decisions to mirror sites, that is to say to sites that reproduce all or large part of the content of a site convicted in court, without further intervention of the judge.

By Jean-Baptiste-Guillot and Virginie Molho, France, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact france@transatlanticlaw.com

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