In light of the evolution of the digital practices of Internet users, the new law n° 2021-1382 of 25 October 2021 on the regulation and protection of access to cultural works in the digital era seeks to modernise the existing framework by creating a new regulatory authority and providing new tools for rights holders.

A new regulatory authority

Postponed due to the COVID-19 crisis, the creation of ARCOM (Regulatory Authority for Audiovisual Communication) has now been confirmed with the promulgation of the law on 25 October 2021[1]. This new authority, which should come into being on 1 January 2022, will replace the Conseil Supérieur de l’Audiovisuel and the Haute Autorité pour la diffusion des œuvres et la protection des droits sur Internet. All responsibilities assigned to these two authorities will be transferred to ARCOM, such as the control of the proper application of the 1986 law on freedom of communication and the graduated response mechanism, which targets downloading of protected works via peer-to-peer networks[2].

More generally, the new authority shall now protect works and objects protected by copyright, neighbouring rights or audiovisual exploitation rights against infringements on the Internet. ARCOM will assist right holders to do this in using the new tools detailed below.

Three new tools against Internet-related infringements

ARCOM has been tasked with drawing up a blacklist of infringing sites.[3] After adversarial proceedings, any site that “seriously and repeatedly infringes copyright and related rights” may be added to this public list for a maximum period of one year. The new mechanism obliges anyone who engages commercially with these sites (in particular, in the banking or advertising sector) to make such relationships public.

The law also provides right holders with a mechanism for blocking mirror sites,[4] based on the model already existing for sites mirroring hateful content pursuant to the law on Respect for the Principles of the French Republic. At the request of rights holders, ARCOM will be able to request the blocking and de-listing of sites that “wholly or substantially” reproduce the content of sites that have already been the subject of a judicial decision.

Finally, a new means for combating the illegal broadcasting of sporting events and competitions is added to the French sports code.[5] Holders of audiovisual exploitation rights for sports events may now instigate interlocutory proceedings in the event of serious and repeated infringements of their rights by streaming sites. The court will have the power to order the blocking, withdrawal or de-referencing of such sites for the duration of the sports competitions concerned and for up to twelve months. At the request of the rights holders, ARCOM may extend blocking measures to mirror sites that were not yet identified at the time the order was issued.

In practice

With regard to the blocking of mirror sites, it should be stressed that the authority’s requests will not have the same coercive force as a court order. If the request is ignored, right holders may still instigate proceedings.

In addition to these new tools, the law favours a degree of self-regulation by encouraging the signing of voluntary agreements (based on models drafted by ARCOM) between key actors with the object of remedying infringements of protected rights.

[1] The Conseil Constitutionnel did not rule on the conformity to the French Constitution of the new legal tools against Internet-related infringements detailed in this newsletter.

[2] Some sought to strengthen the graduated response mechanism by introducing the possibility for the authority to offer a plea agreement (“transaction pénale”) to the infringing individual, but amendments to this effect were rejected and the mechanism remains unchanged (despite criticisms as to its effectiveness).

[3] Article L. 331-25 of the French Intellectual Property Code.

[4] Article L. 331-27 of the French Intellectual Property Code.

[5] Article L. 333-10 of the French Sports Code.