Legal case study: Extracts, quotations, fair use: an exception to copyright?

While documentaries were at the heart of the morning's round table, the MIFC, in collaboration with SACD, used its legal case study to explore a particularly important element for documentaries: quotations. Isabelle Meunier, head of the SACD's audiovisual production contract negotiation department, was joined by Ariane Fusco-Vigné, a lawyer at Cabinet Fusco-Vigné, documentalist Valérie Combard, editor and creator of the Versus channel on Youtube, Loïc Adrien, and Jérôme Soulet, director of the Gaumont catalog.

What are the differences between the short quotation exception and Fair Use?

Lawyer Ariane Fusco-Vigné began by explaining the differences between the expression courte citation, which exists in French copyright law and is often wrongly brandished, and fair use, a notion linked to the American context that is making inroads in France.

To qualify for the short quotation exception, a number of precise rules must be respected:

• The original work must have been disclosed.
• The author's name and source must be clearly cited.
• The quotation must be short in relation to the work quoted and the work citing it.
• The short quotation must be justified by the critical, polemical, educational, scientific or informative nature of the second work, even if it is commercially exploited.
• The short quotation must be incorporated into a work protected by copyright, but not necessarily.
• The short quotation must comply with the triple test
• The short quotation must not infringe the moral rights of the author of the work cited.

In the context of Fair Use, the jurist gave the definition taken from Section 107 of the 1976 Copyright Act:
"Notwithstanding the provisions of sections 106 and 106A, fair use of a copyrighted work, including use by reproduction in copies or phonographic recordings or by any other means specified by this section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, does not constitute copyright infringement. To determine whether the use made of a work in a particular case is fair dealing, factors to be considered include the following:

• The purpose and nature of the use, including whether it is commercial in nature or for educational and non-profit purposes
• The nature of the protected work
• The quantity and informational value of the portion used in relation to the protected work as a whole
• The consequences of such use on the potential market or value of the protected work."

According to Ariane Fusco-Vigné, the influence of Fair Use, a concept closely linked to that of freedom of expression, has had little effect in France. While some dissenting jurisprudence has been decided, "the valve of freedom of expression as an emanation of Fair Use is rather closed in France", she points out.

Case studies

For documentalist Valérie Combard, the choice of Fair Use, which is often less restrictive, is particularly essential. For this reason, she tries to obtain only extracts from sources whose rights are exclusively American. The rest of the time, she prefers to warn those she works with that it's far more prudent to pay the royalties associated with these quotations than to try to slip through the cracks by claiming the short quotation exception. In addition to meticulous archival research, her work also involves ongoing risk assessment, particularly for extracts from European, French or British material.

Loïc Adrien is the creator of the Versus Youtube channel. The concept? To compare and contrast works from all eras, to see how they respond to each other over time. To do this, he uses numerous excerpts as the basis for his critical and educational reflections, which thus fall within the notion of the short quote exception. The limit? The notion of brevity, which must be defined according to the duration of the work quoted and the work quoting. As Youtube is equipped with a "Content ID" device that allows it to recognize quoted works, the platform can also decide to pay out the monetization to the rights holders if it deems that there has been an abuse. Jérôme Soulet himself admits that, despite his desire to promote films, he is surfing on an "increasingly dark grey area".

For his part, Jérôme Soulet, who represented cataloguers and rights-holders in particular, told that at Gaumont, the question of extracts used in Youtube videos has been "settled". It has been decided to allow free use of these quotations if they do not exceed a certain length of time, if they serve to promote the work and if they do not harm the moral rights of the authors. For the rest, the amounts of these excerpt sales can be negotiated according to who requests them, the purpose of the quotations and the applicant's budget. He adds that each year, these sales (before repayment) correspond to around €500,000 in France and abroad.