The French are pulling an Orban

Tuesday, Jul 7, 2020

It increasingly looks like the French government has taken inspiration from the Hungarian government’s approach to implement the Copyright Directive: As previously reported by NextImpact (and after a brief period of uncertainty caused bet the appointment of a new government), the new government has now tabled an amendement to the so called “Ddadue” law that would give it the power…

… to take by ordinance any measure of a legislative nature designed to:

[…] (b) To amend the provisions of the Intellectual Property Code with a view to transposing into French law Articles 2-6 and 17 to 23 of Directive 2019/790 of the European Parliament and of the Council on copyright and related rights in the digital single market and amending Directives 96/9/EC and 2001/29/EC, and by making the adaptations and material, legal and editorial corrections and adjustments made necessary by the Directive in this Code;

Once adopted (the first reading in the Senate is scheduled for tomorrow evening, but it is unclear to me if and how this would also need to go to the Assemblee Nationale) this would allow the government to implement Article 17 of the Directive without any further parliamentary scrutiny. While manoeuvre seems to be primarily designed to speed up the national implementation of the provisions of the DSM directive1, it is still a very worrying sign, that the French government is willing to sidestep parliament for a legislative project that directly touches on various types of fundamental rights.

The existing French implementation proposal lacks a number of the user rights safeguards required by Article 17 of the directive and adopting this flawed text without parliamentary scrutiny and ahead of the European Commission’s implementation guidance would further weaken its legitimacy.

  1. Given the majority that the givernement enjoys in parliament, the ordinary legislative proposal (part of the “Projet de loi relatif à la communication audiovisuelle et à la souveraineté culturelle à l’ère numérique”) which has been stuck in committee as a result of the COVID crisis, was unlikely to attract significant opposition. ↩︎