The Report of Professor Pierre Sirinelli on “automated image referencing services” (i.e. image search engines) of November 2019 is available online. The report proposes an overhaul of the image search engine law voted in July 2016 by French parliament. The law, which was never implemented, provides for a mandatory collective management scheme to license the display of images by search engines.
The Sirinelli Report was commissioned by the French Government in July 2019. Its conclusions, that government may chose to follow and parliament to amend, impact photographers and photo agencies as the overhauled law would oblige image search engines such as Google, Bing or Qwant to enter extended collective license agreements with collecting societies.
Overhaul of an obsolete law
The French law of July 2016 failed to enter into force for two reasons: firstly, there was uncertainty as to its conformity with EU law until the Directive on Copyright in the Digital Single Market was adopted; secondly, the Soulier and Doke ruling of the Court of Justice of the European Union (CJEU) had invalidated the choice of a mandatory collective management scheme in this case.
Extended collective licensing as the best option to license images from image search engines
After explaining why the referencing of visual works by a search engine constitutes both an act of reproduction (storage of the work) and an act of communication to the public, the Sirinelli Report analyses existing collective management systems. Finally the Report concludes that the extended collective licence is best fit for purpose when it comes to licensing billions of image uses with a search engine.
The latter scheme is introduced into EU Legislation by Art. 12 of the EU Copyright Directive. According to Professor Sirinelli, ECL allows for perfect legal security of the licensing platforms while proposing publicity and opt-out mechanisms for authors and rights holders in line with the requirements of EU law and jurisprudence.
The Sirinelli Report constitutes a further step on the long and winding road towards remunerating rights holders in the visual sector for the use of their works online.
NB. Art. 17 of the EU Copyright Directive concerns online platforms where users up-load content. Indexing services such as such search engines including image search engines are not included. The French law would therefore fill this gap, at least for French rights holders represented by one of the local CMOs for visual arts.
