Any use of a original work of authorship such as a literary work, photograph, art piece, song, movie or software, is protected by copyright and/or related rights (i.e. right granted by French law to performers, producers of phonograms, videograms, and audiovisual communication companies) and requires in principle the prior authorization from the right holders.
In order to ensure a balance between the protection of the rights holders and the interests of society, laws around the world provide that certain uses of copyrighted works cannot be prohibited by rights holders provided that certain strict conditions are met.
The scope of exceptions or restrictions to copyright and related rights varies from country to country. It is therefore strongly recommended that you carry out or request a detailed legal analysis before using works and other protected subject matter without the prior consent of the relevant rights holders to determine whether you can avail yourself of any of the applicable exceptions or limitations.
The main exceptions or limitations existing in France and the United States are described below.
Exceptions and limitations in France
The European regulation requires each Member State to ensure that users can avail themselves of one of the following exceptions or limitations when uploading content to an online content sharing service:
- Quotation, criticism, journal;
- Use for the purpose of caricature, parody or pastiche.
In France, exceptions or limitations to copyright are provided for in article L.122-5 of the Intellectual Property Code and exceptions or limitations to rights related to copyright in article L.211-3 of the same code.
- Provided that the name of the author and the source are clearly indicated:
- Analyses and short quotations justified by the critical, polemical, educational, scientific or informative nature of the work in which they are incorporated;
- Press reviews;
- Certain broadcasts of public speeches for the purpose of news and current affairs;
- Certain reproductions of graphic or plastic works of art in the catalogue of a judicial auction;The representation/communication or reproduction of extracts for the exclusive purpose of illustration in the context of research, or teaching and professional training, subject to the exceptions and conditions defined by these texts.
- Parody, pastiche and caricature;
- The reproduction or representation of a graphic, plastic or architectural work of art, by means of written, audiovisual or online press, for the sole purpose of immediate information and in direct relation to the latter, provided that the name of the author is clearly indicated (this exception does not apply to works intending to provide information, particularly photographic or illustrative works);
- Reproductions and representations of architectural works and sculptures, permanently placed on the public highway, made by natural persons, excluding any commercial use.
It should be noted that such exceptions must not interfere with an ordinarily commercial exploitation of the works or other subject-matter concerned and must not unreasonably prejudice the legitimate interests of the right holders.
It should also be noted that any use of a protected work within the above framework is only possible if the work concerned has been previously disclosed.
Finally, it is important to point out that the above list is not exhaustive and only partially reproduces the legal provisions applicable in this area. For more information, it is therefore advisable to refer to the various applicable texts (and in particular to the provisions of the French Intellectual Property Code) as well as to their interpretation by the jurisprudence.
The concept of « fair use » in the United States
The American system has defined a set of rules, limitations and exceptions to the uses of copyrighted works through the concept of "fair use".
According to this concept defined in Section 107 of the Copyright Act, fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching or research does not constitute copyright infringement.
In practice, the concept of Fair Use allows the courts to assess, in the event of a dispute, whether the use of a work by a third party is genuine or not. To do so, judges must take into account 4 criteria to determine whether the use of a copyrighted work is fair or not:
- The purpose and nature of the use, including whether it is for profit or for educational purposes;
- The nature of the protected work;
- The extent and importance of the portion of the work used in relation to the whole protected work;
- The effect of such use on the potential market for or value of the copyrighted work.
Courts may consider additional factors in determining whether the use of the copyrighted work is fair or not. This will be a case-by-case analysis.
Exceptions to copyright and related rights are strictly regulated in each country and are subject to the interpretation of the courts. As such, if you wish to use the content of a third party protected by copyright and/or related rights, we strongly advise you to inquire in advance about the legislation in force in the territory(ies) in which you intend to make your content available.
It is indeed your responsibility to fully understand the extent of your rights and obligations, and to ensure that the content you upload on the Dailymotion Service does not violate any applicable law or regulation, and in particular does not infringe the intellectual property rights of a third party.