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Cazeau & Associés’ Newsletter – April & May 2019

April – May 2019



  • NEWS: New Directive: the copyright transposed to the digital era
  • IN-BRIEFThe Government coming to rescue the Macron scale!



New Directive:
The copyright transposed to the digital era

On 26 March 2019, the European Parliament approved the amended Directive proposition on the copyrights in the unique digital market.

The Directive still has to achieve its legislative process by passing through the Union Council and the Commission (which is the author), but with no doubt it will be definitely adopted on the next days or weeks.

This text aims at pursuing the harmonization of the different legislations on the copyright while adapting the copyright rules to the digital era, its benefits and its challenges.

Here are the principal dispositions of the Directive.


The copyright serving the education, the investigation and the cultural heritage

The Directive provides for a disposition in favour of the cultural heritage administration institutions. This rule aims at easing the conclusion of licence agreement for the European works which aren’t available on the market.

This provision concerns the works which are still submitted to copyrights but just commercially unavailable.

In principle, the licences are negotiated with the collective management organization that represent the owners of copyrights. In the absence of these organization, the institutions in question will be able to benefit from an exception which will allow them to publish these works on non-commercial websites.


An adaptation of the copyright to the digital era and the cross-border context

In order to ease the copyright digital market meanwhile protecting the owners, the Directive establishes some provisions which allows to adapt the copyright rules to the digital era.

1. The insurance that the public domain’s works stay free

The European legislator based on the fact that some national legislations allow to claim rights on a work that entered public domain.

The new directive puts an end to this faculty. Therefore, everyone will be definitely free to use, reproduce and share online public domain works.


2. The extended collective licence agreements:

In some cases, the grant of individual licences is way too heavy for the users. This is why the Directive allows the member states to authorize collective management organisms to conclude, under certain conditions, licences for non-members’ copyrights. In return, the Directive also provides for safeguards in order to protect the owners.


A fair digital market for the copyrights

In a logic to promote European creativity, the Directive establishes dispositions to rebalance some situations in which the copyrights owners are weaker when facing the new digital challenges.


1. Online press publications

The first category of protected owners are the press publishers. The European legislator based on the fact that many digital giants, particularly the information aggregators, (Google actuality among them) share an important number of press articles.

In this context, it was appropriate to provide for safeguards. Therefore, the Directive confers an exclusive right to these publishers to authorize or prohibit the reproduction, the communication and the availability of their own publications. This also means that they will be able to request a financial counterpart in return for those authorizations. Several exceptions are established such as the private or non-commercial use, the hyperlinks, or short extracts or individual word quotes.

inally, the authors of these articles aren’t forgotten because these provisions establish that they must benefit from a part of the remuneration payed to the publishers.


2. Online protected content use

The second series of protections provided by the Directive concerns the online publication of contents submitted to copyrights mainly by the big digital platform such as YouTube.

These dispositions were initially gathered under article 13 of the proposition which have been subject to an intensive mediatisation and an animated debate. Now, the proposed mechanism has suffered important modifications and has been renumbered to article 17 of the Directive.

This way, the platforms are to ensure that they obtain the authorization of the copyright’s owners for the content which are published by their users. In principle, this obligation affects the platform itself and not the user. The Directive also establishes the platform’s responsibility for each violation of copyright that is committed on its site, unless its prove that it implemented the prevention actions listed in the article.


3. The Video on Demand platforms

The Directive also rebalances the relations between the authors and the platforms of audio-visual contents on demand which have, with no doubt, the wind in their sails (Netflix, Amazon Prime, Spotify, etc…).

Thus, each Member State has the obligation to designate, in the two years following the Directive entry into force, an independent and objective mediator. The latter will be able to be tasked with the disputes between the platforms in question and the parties with whom they are negotiating on the use of audio-visual works.


4. A general protection of the authors

The European legislator provides for four mechanism in order to better equip the author, who are the artistic creation main forces, and these are:

– The establishment of the general principle of a proportionate and effective remuneration of these authors, which details are left to the Member States;

– Transparency obligations for the operators towards the creators;

– A contractual adaptation mechanism embodied by the obligation to adapt the initial contractual remuneration when this becomes « disproportionately low compared to the subsequent relevant revenues and benefits derived from the exploitation of the works or performances»,

– The right of the author to revoke his licence or its right transfer under certain conditions.




The Government coming to rescue the Macron Scale!

Most definitely, the Macron scale won’t stop sparking debate! Implemented in 2016, its purpose is to ensure a certain legal predictability by fixing the indemnities for irregular dismissals which can be obtained by the employee as a result of the social proceeding.

This last months, the legal news has put the light on recent decisions of some « Conseils de prud’hommes » (employment tribunals) pronouncing condemnation above the Macron scale. These judgments are founded on an unconventionality motive regarding the international social regulations such as the European social Charter or the International Labour Organization’s rules.

On the contrary, most of the employment tribunals faithfully apply the scale so the doctrine and the practitioners wonder the outcome of this jurisprudential debate.

Most of the decisions that invalidated the Macron scale will inevitably suffer the filter of the second degree of jurisdiction: the appeal.

Therefore, the Government seized the opportunity to react by publishing, the 26 February 2019, a « circular » (a state intern legal text) in order to defend the measure.

Concretely, the Justice Minister reminds the constitutionality of the scale, which means that it has been approved by the Constitutional Council.

She requires the General prosecutors to identify the judgements that validate the scale’s conventionality. More originally, it is also planned to make the General Prosecutor’s office intervene in the appeal proceedings for the judgement which unvalidated the scale.

It is hardly conceivable that the Macron scale would be nullified in the end. Nevertheless, it is undeniable that those recent events generate a legal unpredictability and bring the parties and their lawyers to reconsider the way they deal with this type of legal disputes.

It will be interesting to watch the outcome of this debate.



Within this section, you will find some pre-selected press releases prepared for you according to your native language.