Glossary

Private copying

When purchasing a device capable of reproducing and storing a work for personal use (such as a smartphone, tablets, external hard drives or USB sticks) for the reproduction and storage of a work, as well as its performance and recording, a small, fixed-rate portion of the purchase price is paid to the creators and publishers of the works, and to the artists and producers of the recordings that will be copied onto the device. This remuneration compensates for the loss of income suffered by these rights holders as a result of the widespread and unauthorised copying of their works, performances or recordings.

Copyright

Article L.111-1 of the Intellectual Property Code provides that ‘the author of a work of the mind shall, by the mere fact of its creation, enjoy an exclusive intangible property right in that work which is enforceable against all persons. This right comprises intellectual and moral attributes as well as property rights, (…).”
In short, this means that a work is, from the moment of its creation, protected by copyright, without the need to complete any registration formalities with any organisation, and that its creator has a ‘property right’ which is defined by two components: Property rights, on the one hand, and Moral rights, on the other.

Moral right

Moral rights consist of a series of prerogatives which the creator is entitled to exercise over their work and which enable them to control its use:
– the right of disclosure: this is the right to authorise the first communication of the work to the public (where, when and how) or, conversely, to prevent such communication. Upon the creator’s death, their heirs exercise this right in respect of posthumous works, that is to say, those that were not communicated to the public during their lifetime;
– the right of authorship: this is the right of the creator to have their name and status mentioned when their work is exploited. This right may be exercised positively (the right to have one’s name associated with the work) but also negatively (the right not to reveal one’s identity by remaining anonymous or using a pseudonym);
– the right to respect for the work: this is the right to object to any distortion of the work (deletion, addition and, more generally, any alteration to the work, whether in form or spirit);
– the right of withdrawal or retraction: this is the right of the creator to withdraw their work entirely from circulation (withdrawal) or to withdraw it in order to revise it (retraction), subject to compensating the party to whom the exploitation rights had been assigned. 

Upon the creator’s death, this right is passed on to their heirs, without any time limit.

All these prerogatives are perpetual, inalienable and imprescriptible. 

Owing to the inalienable nature of moral rights, these are never transferred to Sacem when a creator joins the organisation.

Property rights

Property rights confer on the creator a monopoly on exploitation, enabling them to authorise or prohibit the exploitation of their work and to set the conditions for such exploitation, particularly the financial terms. The right of exploitation comprises two main rights: reproduction rights and representation rights. 

Property rights survive the creator’s death and are passed on to their heirs for a period limited to 70 years from 1 January following their death, unless any extensions (notably due to war) apply.

Reproduction rights

Reproduction rights cover any physical fixation of the work, by any means or method of reproduction, whether known or yet to be discovered, in particular:
– the reproduction of music in the form of a musical score or of a text in an anthology or book (= this is known as ‘graphic reproduction’*)
– reproduction on sound recordings (CDs, vinyl records, etc.) or videograms (DVDs, Blu-rays, etc.), or reproduction rights for the purpose of making a work available on streaming and/or download platforms (= this is known as mechanical reproduction).

*These publishing rights are not administered by Sacem; they are administered by the publisher when the work is published.

Representation rights

The representation rights or (public) performance rights cover any communication of the work to the public, by any means or mode of communication, whether known or yet to be discovered, in particular:  

• the performance of the work as part of a show, a concert or a dance; 
• the broadcasting of the work on television, on the radio or on the internet; 
• the broadcasting of the work (notably via recordings) in public places, such as cafés, nightclubs, shops, etc.

By joining Sacem, creators and publishers make contributions to it of their public performance rights and their mechanical reproduction rights in respect of all their works, as soon as they are created in the case of the former and as soon as they are published in the case of the latter.

Related rights

Alongside copyright, there are also other rights, known as ‘Related rights’, which belong in particular to:  

• performing artists, that is to say, those who ‘[…] perform, sing, recite, declaim, act or otherwise execute a literary or artistic work, or a variety, circus or puppet show act’. In addition to property rights, performing artists, like creators, have moral rights. 
• producers of sound recordings, that is to say, individuals or companies who finance the recording of a song, an album or an EP and its reproduction rights on a physical medium (CD, vinyl, etc.). In particular, they pay the SDRM the amounts of author’s rights due to the creators and publishers of the reproduced works if they are Members of Sacem or a foreign collecting society (particularly a collective organisation) linked to Sacem by a representation agreement.

The term of Related rights, like that of property rights, is limited in time. It is 50 or 70 years from 1 January of the calendar year following, as the case may be, that of the performance or its fixation on a phonogram or videogram, or the release of such a medium.

Term of protection of a work 

The Intellectual Property Code currently provides that, in France, copyright (property rights) subsists for 70 years after 1 January following the death of the creator (= 70 years post mortem).
There are exceptions to this principle, particularly for works published before 1948. Below you will find further details regarding the various nuances to be aware of when calculating the term of protection for a musical or dramatico-musical work in France.

Works created collaboratively
Where a collaborative work is created (a creative endeavour undertaken jointly, drawing on a shared source of inspiration and involving mutual oversight amongst several creators), the term of protection is calculated from 1 January following the death of the last surviving collaborator.
If a work consists of several contributions from creators who have not collaborated together (e.g. setting an existing poem to music), two terms of protection will apply: one for each contribution, i.e. one term for the poem and another for the music. 

Works published during the creator’s lifetime before 1948: application of war extensions.
The legislator has provided that works whose exploitation was disrupted by at least one of the two world wars may have their term of protection extended, by way of compensation, as the dissemination of such works was greatly reduced or even halted during periods of conflict.
How can one determine whether the exploitation of a work was affected by the war and is therefore eligible for an extension of its term of protection? This depends on the date on which it was first published.
For works originally published in France, this date is generally listed in the BnF’s online database, which receives the legal deposit of musical scores.
– If the work was published before 1 January 1921: its exploitation was affected by both world wars. The term of protection for the work will be extended by 14 years and 272 days. It will therefore total 70 years + 14 years and 272 days = 84 years and 272 days.
– If the work was published between 1 January 1921 and 31 December 1947: its exploitation was affected by the Second World War only. The term of protection for the work will be extended by 8 years and 120 days. It will therefore total 70 years + 8 years and 120 days = 78 years and 120 days.

Which works are eligible for war-related extensions?
The addition of war extensions to the 70-year post-mortem term of protection applies only to musical and dramatic-musical works of European origin (originating in a country of the European Economic Area) published before 1 January 1948. 

Posthumous works
Before 1 July 1995 A work is considered posthumous if it was not disclosed during the creator’s lifetime.
Two different terms of protection currently coexist, depending on the date of first publication of the posthumous work:
– Before 1 July 1995: the term of protection is 70 years from the date of publication.
– After 1 July 1995
• If the work is published within 70 years of 1 January following the creator’s death, the term of protection is equal to the remaining period between the date of posthumous publication and the end of the 70-year term. The heirs or rights holders, as the beneficiaries of the copyright, must, if the creator was a member of Sacem, submit a notification or declaration of the posthumously published work to Sacem and will receive the corresponding author’s rights royalties. If the creator was not a member of Sacem, their heirs or rights holders may, if they so wish, join Sacem posthumously.
• If the work is published more than 70 years after 1 January following the creator’s death, the term of protection is 25 years from 1 January of the year following publication. This protection applies to the owner of the original manuscript of the work, who may, if they so wish, join Sacem as a publisher of the work(s) posthumously. 

Special case: creators who died for France
The Intellectual Property Code provides that the term of protection for the works of a creator who died for France is extended by 30 years. The words ‘Died for France’ must be noted in the margin of the creator’s death certificate. 

Legislation varies from country to country.
To find out how protection periods are calculated in a foreign country, you may refer, in particular, to the World Intellectual Property Organisation (WIPO) database, WIPO-Lex.
View here

And what about moral rights in all this?
Once the term of protection has expired, it is possible to use a work that has entered the public domain without seeking authorisation under property rights. However, care must always be taken to respect moral rights, which are not subject to any time limit. This involves, in particular, respecting the right of paternity (citing the name and status of the creator of the work) and the right to integrity (not altering the work in a way that would infringe the creator’s Moral rights). Moral rights are non-transferable, which means that the creator could not have assigned them to Sacem. They therefore remain the property of the creator, and subsequently of their heirs.  

What about derivative works based on works that have entered the public domain?
Arrangements or adaptations of works that have entered the public domain may be protected, particularly if the arranger or adapter died less than 70 years ago.  

What about the terms of protection in France for non-European works?
The Intellectual Property Code stipulates that the term of protection applied in the work’s country of origin shall apply in France, provided that this term does not exceed the basic term of protection, which is 70 years from 1 January following the creator’s death.

Intellectual property 

Intellectual property is a branch of law that encompasses all the rules applicable to ‘intellectual’ or ‘intangible’ creations, which are ‘intangible assets’. Under French law, it is divided into two areas, governed respectively by each of the two main parts of the Intellectual Property Code: literary and artistic property, on the one hand, and industrial property, on the other.
Literary and artistic property is in turn subdivided into copyright, Related rights and sui generis rights in databases.
Industrial property mainly covers trade mark law, patent law and design law.

Equitable remuneration  

Where a recording is marketed in any form whatsoever (CD, vinyl, reproduction rights for online distribution via streaming and/or download platforms, etc.), the performing artist and the producer responsible for such marketing may not prohibit, in particular:
• its broadcast in a public venue with a sound system (nightclubs, bars, shops, etc.), provided it is not used as part of a performance;
• its broadcast on television or radio.  

In return, in both these cases, broadcasters pay a so-called ‘equitable’ remuneration to the Collective management organisation responsible for the Collection, Spre. This equitable remuneration, shared equally between performers and producers, is distributed by Adami or Spedidam (for performers) and by Scpp or Sppf (for producers).

Remuneration for private copying  

Private copying is an exception to copyright and Related rights which allows individuals to reproduce, for their private use, works, performances and recordings from media they have purchased on which these works and performances are reproduced. Due to the loss of revenue resulting from these copies (made from media such as blank CDs, hard drives, USB sticks, smartphones, tablets, etc.), compensatory remuneration is granted to holders of copyright and Related rights; that is to say, in the music sector, to creators, publishers, performers and producers.  

Copie France is responsible for the collection of this remuneration from manufacturers and importers of storage media. Once the collection has been completed, the Intellectual Property Code sets out the rules for its redistribution.
Thus, 75 per cent of the sums collected are redistributed to creators, publishers, performers and producers via collective management organisations – including Sacem – responsible for their distribution.
25 per cent of the funds collected are used to finance cultural projects: festivals, book fairs, documentary productions, film productions, music album releases, artist residencies, writing grants, workshops and children’s shows, etc.