Wikimedia France and La Quadrature du Net defend the public domain before the Constitutional Council

Paris, 6 November 2017 – In 2016, the Création law established a new right to use the image of national estates, such as the Chambord castle, the Louvre or the Élysée palaces. This provision allows their administrators to control the commercial use of images of these emblematic buildings and to demand license fees for those images. Considering how this measure threatens our legitimate rights to use our cultural heritage, Wikimedia France and La Quadrature du Net have attacked the implementing decrees applying this law, and raised a Question prioritaire de Constitutionnalité (priority constitutionality question)¹A French-specific procedure, the only possibility to challenge the constitutionality of a law is to ask the French Council of State (Conseil d’État, the French supreme administrative court) to accept the procedure and pass it on to the Constitutional Council (Conseil constitutionnel).. In a decision dated 25 October 2017²Décision du Conseil d’État n°411055 du 25 octobre 2017., the Council of State accepted to transfer the matter to the Constitutional Council, considering the demand to be founded on new and serious grounds.

This new version of image rights stems from a so-called “Chambord amendment” tabled by legislators during the debates on the “Creation, Architecture and Patrimony” law (or Création law). It echoes a conflict dating back several years opposing the castle of Chambord and the Kronenbourg company regarding the use of the monument’s image in an advertising campaign. As the courts hadn’t yet resolved the matter, the Members of Parliament wanted to use this law to enshrine the possibility for estate administrators to control the use of the images of the historical monuments they are in charge of.

But in doing so, they have created a kind of “anti-freedom of panorama” which will forbid many legitimate uses of our patrimony. Copyright-wise, buildings like the Chambord castle or the Louvre do in fact belong in the public domain and their images should, for this reason, be freely usable. Moreover, this new layer of rights created ex nihilo will make it impossible to put photos of these historical monuments under free licenses and contribute them to sites like Wikimedia Commons (the repository of images and multimedia files linked to Wikipedia). Free licenses, by definition, authorise commercial use, and their effectiveness is threatened by the new provisions of French law.

The Création law does provide for certain exceptions, to the extent that commercial use will continue to be authorised if it is exercised “in the framework of activities in the public service or towards cultural, artistic, pedagogical, educational, research, or informational ends, or for news”. But beyond the fact that the exact limits of these exemptions will be very difficult to assess in practice, it is the precedent this law introduces that is dangerous in itself. In fact, in the future a legislator could extend this new law on image reproduction rights to all historical monuments, or even to all of the media holding ancient works (paintings, sculptures, etc.). If this were the case, the very existence of the public domain will be dangerously compromised, and with it, the cultural freedom of which it is the necessary condition. Commercial reuse is, incidentally, an integral part of these legitimate freedoms, as it is also through it that our cultural heritage is renewed and kept alive.

For these reasons, Wikimedia France and La Quadrature du Net have convinced the Council of State to bring the matter before the Constitutional Council to nullify these elements of the Création law on the basis of these arguments:

• The Création law is contrary to the right to non-discriminatory access to culture, and its corollaries, freedom of cultural expression and the right to disseminate culture;
• By creating ex nihilo a new possibility to restrict the use of images of national monuments, the law brings back a form of patrimonial law. But the many laws on copyright and authors rights adopted since the French Revolution have always made plans for patrimonial rights to require a time limit to permit works to enter the public domain. This has resulted in a fundamental principle recognised by the laws of the Republic, which Wikimedia France and La Quadrature du Net demand the Constitutional Council recognize;
• In prohibiting the possibility for people who take photos of these monuments to make them available under a free license, the Création law prevents them from using their authors right, which is protected by the Constitution as part of the right to property. Moreover, the law calls into question the validity of licenses already granted, ignoring the freedom to enter into contracts;
• The restrictions on commercial use that the Création law introduces constitute a disproportionate attack on freedom of enterprise;
• Finally, the Création law uses very vague language, leaving considerable lattitude to estate managers as to whether or not to grant authorisations and to set the rates of licenses. In doing so, legislators have demonstrated their “negative incompetence”³“Negative incompetence” consists of an institution ignoring the limits of its powers (incompetence), mistakenly believing them to be less extensive than they are (negative). by not adequately regulating the administration’s powers. This weakness in the law leaves the door open to arbitrary decisions in determining legitimate uses of our heritage.

The arguments raised in the application may still change or be elaborated on before the Constitutional Council. Wikimedia France and La Quadrature du Net publish today the memorandum presented to the Council of State which details these arguments.

It is ironic that a law on “freedom of creation” is the one to limit the use of our cultural heritage, gravely impair the public domain and limit the ability for individuals to disseminate their own works under free licenses. Wikimedia France and La Quadrature du Net consider that in the very interest of the vitality and dissemination of culture, uses of our heritage must remain as open as possible, and it is these liberties which they will defend before the French Constitutional Council.