Act no. 2021-1382 of 25 October 2021 on the regulation and protection of access to cultural works in the digital age has been published in the Official Journal. It modifies the French Intellectual Property Code (‘IPC’).
The Act creates ‘ARCOM’ (the Authority for the regulation of audiovisual and digital communication), a new regulatory authority with broad missions and extensive powers. This authority has been created by merging the two following authorities that therefore disappear:
- CSA (Conseil Supérieur de l’Audiovisuel), an independent authority in charge of protecting the freedom of audiovisual communication, of providing a legal framework for audiovisual content and services, and of regulating access to the market;
- HADOPI, the authority for the distribution of works and the protection of rights on the internet, which had several missions: the development of lawful distribution of works; the protection of works from infringement (via the famous graduated response procedure); the regulation of the implementation of technical protection measures.
ARCOM is in charge of implementing new procedures to fight online infringement:
1/ ARCOM can publish a list of manifestly infringing websites. This blacklist may be used by the signatories of voluntary agreements promoted by ARCOM, which are supposed to contribute to remedying infringements of copyrighted material and sporting competitions and events. With a view to draining the resources of the blacklisted websites, advertisers and their agents must make public, at least once a year, under conditions to be specified by ARCOM, the existence of their relationships with the blacklisted sites. These relationships must also be mentioned in the corporate reports that commercial corporations must establish under article L232-1 of the French commercial code.
2/ The Act creates new procedures to fight against mirror sites. When a court decision has become final, ARCOM has the power to prevent access to an online communication service, upon simple referral by a rightholder who is party to the legal proceedings. ARCOM may also order any operator of a search engine or other referencing service to stop referencing electronic addresses giving access to these online public communication services.
3/ The Act also creates a new procedure to fight against the unlawful broadcasting of sporting events. The procedure takes into account the urgency of such matters, by offering the possibility of referring the cases to a judge in summary proceedings or under an accelerated procedure on the merits, so that the judge can rapidly order any useful measure (blocking, dereferencing, etc.) with regard to an online communication service that broadcasts sporting events without authorisation.
Thus, ARCOM’s has extensive powers to fight against all forms of online infringement: peer-to-peer and direct downloading, streaming, IPTV, etc.