The emergence of a public domain for classic films: what are the consequences for film distribution?

As part of the annual market, the Marché International du Film Classique (MIFC - International Classic Film Market), in partnership with the SACD (Society of Dramatic Authors and Composers), organized a round table whose recurring theme is: “The Emergence of a Public Domain for Classic Films: What are the Consequences for Exploitation?”

This meeting brought together experts to debate the legal, practical, and economic challenges posed by the progressive entry of cinematographic works into the public domain. The discussion highlighted the complexity of determining the duration of film protection, the crucial role of archives, and industry strategies to ensure the sustainability and exploitation of a heritage undergoing a significant legal shift.

The discussions were led by Pascal Kamina (University Professor, Jean Moulin Lyon 3 University), Maud Mischi (Legal Director of Catalogue, Gaumont), and Matěj Strnad (Head of Programming and Access to Collections, FIAF - International Federation of Film Archives). Moderation was provided by Isabelle Meunier (Head of the Audiovisual Production Contracts Negotiation Department, Legal and Audiovisual Contracts Division, SACD).

1. Legal Complexities

The date of entry into the public domain is complex due to the variability of protection durations and calculation rules (death of authors or publication).

International Rules: The principle of comparison of terms (Berne Convention) requires that a foreign film be protected for the shorter duration between its country of origin and the country of exploitation (Example: Mickey is in the public domain in France, but still protected in Germany).
Anticipated Expiration: In the United States, missed formalities (Copyright Notice, renewal) led to many French films prematurely falling into the public domain (1909 Act).
Residual Protection: Even after expiration, protection can be maintained through moral rights (perpetual in France) or the registration of restored versions/trademarks.

2. Catalogue Management and Territoriality

Global platforms often ignore territoriality rules, creating a major conflict for catalogues.

The Battle of Territoriality: The film The Passion of Joan of Arc (1928), which fell into the US Public Domain, was widely distributed. Gaumont had to fight to re-establish protection in France where the film remains protected until 2049 (70 years post-mortem rule of the last author).
Heritage Sustainability: Films that have fallen into the Public Domain require costly investments in conservation and restoration to remain exploitable (bringing them up to technical standards), investments that are difficult to finance without exclusive rights.
Proposal: Create a temporary period of exclusivity (5-10 years) only on restored versions to encourage and protect private investment.

3. The Role of Archives and Moral Rights

Global archives are committed to defending the public domain while considering their mandate and specific legal requirements.

FIAF Code of Ethics: The International Federation of Film Archives advocates for the free use of public domain works.
Restoration: The FIAF stipulates that restoration does not create a new work and therefore does not generate automatic new copyrights.
Challenges of Moral Rights: The existence of perpetual moral rights in many countries (e.g., France, Czech Republic) can limit the exploitation of public domain works, particularly for modifications or restorations (integrity of the work).