France has been one of the principal supporters of the DSM Copyright Directive throughout the legislative process. French cultural lobbies and rightsholders have a strong influence in French politics and have strongly supported Articles 17, as well as Article 15, which relates to press editors' new publication rights.
This political involvement explains why Article 15 was so swiftly implemented, in a dedicated law published on the 24 July 2019, just three months after the Directive had been passed.
This quick implementation made France an experimental playground for Article 15’s enforcement, sparking negotiations between press editors and Google, due to its news aggregator Google News.
The Directive’s other provisions, however, have yet to be transposed. The French legislature had at first planned to implement some of it, and in particular the controversial Article 17, through a government bill on 'audiovisual communication and cultural sovereignty in the digital age'. This bill was to be passed through an accelerated procedure.
This accelerated procedure means that the bill is first reviewed and amended by a joint committee, composed with members of both chambers of the parliament. Once this committee has reached an agreement on a text, that text is discussed only once by each of the chambers, considerably speeding up the process. This procedure is sometimes used when the government or the majority wants to avoid controversial debates.
Under this first process, the French parliament seems to have closely followed the Directive’s text in its implementation directly transposing some of the Directive’s text. This implementation was in the interests of rightsholders.
Unfortunately, due to Covid-19 and with the first lockdown, this parliamentary proces stopped after 12 March 2020.
The implementation process restarted last November, with the parliament passing a 'law on various provisions adapting to European Union law in economic and financial matters'. It gives power to the French government to implement the Directive by way of ordinance.
The law gives the government six months to transpose Article 17, and 12 months for the rest of the Directive's provisions, without any control of the legislative power.
This delegation of authority from the legislator to the government is not that common. However, France has little latitude with the approaching implementation deadline in June.
The European Commission has been working on guidelines for to the application of Article 17, in a bid to encourage a harmonised implementation by member states. The French government could, given their current deadline, wait for such guidelines. But their recent disagreements with the Commission indicate that they won't.
A recent stakeholder consultation has led France to criticise the guidelines project. A memo addressed to the Commission states that the project distorts Article 17 by introducing new concepts.
Such disagreement could generate diverging implementations of the Directive among member states.
Annabelle Richard and Pierre-Yves Thomé