Roundtable : Between uses and regulations : how to develop access to works?

This Friday, the MIFC ended its 9th edition by organizing a meeting around the use and regulation of access to works, giving, in passing, some thoughts on how to consider the availability of heritage works. 

Around Jérôme Soulet, Gaumont's catalog director, were two lawyers, Marion Lingot, lawyer and partner at Fiducial Legal by Lamy and Karine Disdier-Mikus, lawyer and partner at Fiducial Legal by Lamy, as well as the founder of Buzz2buzz, Alain Le Diberder and Gilles-Marie Tiné, president of AyeAm Films.  

The round table started with a reminder of the law. Karine Disdier-Mikus reminded us that access to works is not done in any way and that it is governed by « droit d’auteur » (not to be confused with the American copyright), and this « droit d’auteur » requires above all the author's consent. So, from the moment a film is found on a platform, whatever it is, if the holder(s) of the intellectual property is/are not in agreement, it is then a question of infringement. The lawyer also recalled that this right was accompanied since October 7, 2016, for producers, duties and in particular that of the search for followed exhibition (which is an obligation of means). This very French obligation has been transposed into European law, so when someone uploads a work for which he does not have the rights on a platform, such as Youtube, it is the platform that is held responsible for what is put online and must find a ground with the copyright holders to allow this exploitation, according to a contract with reasonable conditions. Yet it is still necessary for the right holder to make the request. It is then up to external bodies, which can be Arcom, the courts or even the Competition Authority to decide on the fairness of these contracts. 

However, apart from these complex cases, Gilles Marie-Tiné, president of AyeAm Films and author of a study on the diagnosis and proposals for France Télévisions' heritage film offer, pointed out that the primary access to heritage works still remains the public service. As he reminds us, 29 million households in France pay the licence fee, while 3 million subscribe to specialized film channels and 8 to 10 million are on platforms, so the channels, those of France Télévisions, and free platforms, arte.tv and france.tv, remain the only access, apart from physical video, to heritage films. However, over the 2010 decade (except for the case of 2020, which is exceptional in more ways than one), a reversal has taken place between Arte and France Télévisions. Thus, the Franco-German channel, led by a proactive and dynamic policy around the cinema, has gone from 380 films broadcast to 450, and therefore from 130 to 190 heritage films, when, at the same time, France Televisions has dropped its offer from 520 to 420, a decrease of 100 feature films entirely passed on to the heritage cinema (films over 20 years old), from 250 to 150. And according to him, it is not the free platforms of these channels that will compensate because television is still very promising in terms of viewers. On the other hand, according to Gilles Marie-Tiné, it becomes essential to improve the collaboration between television channel and platform to give more visibility to these heritage works, especially on the web. He specifies that word-of-mouth, which is still a great engine of discovery, will be all the more effective and that cataloguers and other rights holders should not be afraid of these free platforms that allow a much more contemporary mode of transmission. 

Visibility is also what Alain Le Diberder talks about. The founder of Buzz2buzz went back to what makes a film valuable: for a recent film, it's its budget that gives it its value, after a decade, it's its distribution that takes precedence, while after 20 or 30 years, it's what people say about it that keeps it going. If a film is no longer talked about, then it is worthless, since no one will want to see it (not knowing that it exists). For him, three types of films are "pirated in good faith": very old films over 50 or 60 years old that are no longer legally accessible anywhere, foreign films that are not legally available in France, and films that are blocked by the rights holders. However, according to Alain Le Diberder, when a person uploads one of these films on a platform such as Youtube, then it gives it a new notoriety that gives it a market value. To conclude, he said that the law of 1985, in which he had participated alongside Gilles Marie-Tiné, is no longer adapted to the times, especially for heritage films, the costs being far too high compared to the economic and cultural value of these works, and that a political discussion should take place on this subject. 

Jérôme Soulet then took up the conversion, swapping his mederator's hat for that of Gaumont's catalog director, to explain that, as a cataloguer, it was important to him that his works remain accessible, but in some cases, it is the copyright holders who block. So what to do in these cases? In the room, Isabelle Meunier-Besin, head of the audiovisual production contract negotiation department at the SACD, explained that the organization was there to help in this type of situation and that, in the worst case, as the two lawyers around the table pointed out, it was possible to go to court for « abuse of rights ». 

Sabrina Joutard, president of the Syndicat des cataloguistes, then added that the problem with piracy was that it led to the question of free access in the minds of spectators and wondered why everything should be available all the time. Alain Le Diberder answered that the problem was not so much the availability but that some works risked becoming indifferent. 

Gilles Marie-Tiné then concluded by hoping that public television would prove Jean-Luc Godard wrong by proving that it was possible to create memories by broadcasting heritage films.