Among intense weather considerations about the wettest spring on record for the past century and shock over Brexit, the French Parliament adopted at the end of June a little-noticed measure in the Freedom of Creation Act… with a very big potential impact: a new royalty for the indexing of images on the Internet in France.
Senators lobbied strongly for this measure, presented as a way to ensure the remuneration of plastic art, graphic art and photographic works’ rightsholders for images “used and communicated to the public without authorisation” by search engines and indexing services – while conveniently forgetting that search engines do not publish anything and that it is technologically easy to ensure that an image is not indexed.
How would this work? When an image is published online, the reproduction right and the right of communication to the public of this image shall be transferred to one or more collecting societies appointed by the French government. Online communication services “reproducing and communicating to the public images for search and indexing purposes” shall have to obtain a license from those collecting societies to index images legally. The license fee will either be based on the revenue accruing from the exploitation of the service or be a lump sum fee.
It is still too early to understand the full impact of this measure. However, it is quite clear that “many online services and mobile apps, from search engines to creative commons models and Europeana” will be impacted, as stated by several digital associations, including CCIA. “Basic, everyday activities of online users such as posting, linking and embedding photos online, [will] be subject to a cloud of legal uncertainty”.