An unfortunately typical French initiative (Plus Ca Change, Plus C’est la Même Chose)
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without authorisation” by search engines and indexing services – while conveniently forgetting that search engines do not publish anything and that it is technologically easy to ensure that an image is not indexed.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”.
Moreover, the territorial scope of this measure is unclear. Are the rights of reproduction and communication to the public transferred to a collecting society when an image is published on a French website or on any website? Is the measure based on the nationality of the works? In practice, this measure may claim ownership of the billions of pictures uploaded everyday globally – even though the huge majority of those pictures are published today for personal use by the close-to-3-billion smartphones’ owners, not expecting any revenue. It is also worth noting that a sizable number of those pictures is published under a Creative Commons license that usually refuse remuneration in return, for example, for attribution. Therefore, this measure would override the choice made by users publishing under such a license – and more generally, would deprive rightsholders of the choice between licensing their pictures or not.
Even worse, there is no realistic way for collecting societies to redistribute the revenues from the license fees accurately and fairly to billions of rightsholders all over the world. The relevant collecting societies won’t attempt to contact all French rightsholders (when close to 70% of French citizens above 15 years old have a smartphone!), let alone all global rightsholders. In practice, the money will be split between the relevant collecting societies and the few rightsholders affiliated to those societies, who – as we say in France – won the “Jackpot”.
The French tech industry is, once again, the loser. Innovation has become, once again, a bit more difficult, with services such as Qwant or Exalead at risk – to the detriment of French consumers. France is, once again, and on one more issue, isolated at a European and global level.