Opinion of June 14, 2011 on a draft decree amending decree no. 93-1429 of December 31, 1993 on legal deposit

Avis du 14 juin 2011 sur un projet de décret portant modification du décret n° 93-1429 du 31 décembre 1993 relatif au dépôt légal et au dépôt légal des services de communication au public par voie électronique (Opinion of June 14, 2011 on a draft decree amending decree no. 93-1429 of December 31, 1993 on legal deposit and the legal deposit of electronic public communication services)

The French Superior Audiovisual Council (Conseil supérieur de l'audiovisuel) has been asked to give its opinion, pursuant to article 9 of the amended law no. 86-1067 of September 30, 1986 on freedom of communication, on a draft decree amending decree no. 93-1429 of December 31, 1993 on legal deposit and the legal deposit of electronic public communication services. After deliberating at its plenary meeting on June 14, 2011, it issues the following opinion.

In its opinion no. 2010-18 of July 13, 2010 on the contract of objectives and means of the Institut national de l'audiovisuel (INA), the Council summoned the Government's attention to the delay in regulating the legal deposit of Internet content. It noted that "in the absence of a decree on the legal deposit of websites, the draft contract has not been able to set concrete indicators in this area.

The Board therefore voted in favor of the draft decree, which organizes in concrete terms the legal deposit of online public communication services and on-demand audiovisual media services between the depository bodies, and updates the rules for the legal deposit of audiovisual communication services. The entire scheme is part of a broader effort to go paperless in the audiovisuel sector.

However, the Council summons the Government's attention to the following points.

With regard to the scope of television services subject to the legal deposit obligation with INA, defined in article 30, the Council regrets that certain television services are totally excluded. As the text currently stands, cinema services within the meaning of decree no. 90-66 of January 17, 1990, self-promotion services and services mainly or exclusively devoted to teleshopping within the meaning of decree no. 92-280 of March 27, 1992 are not subject to legal deposit with INA.

In view of their patrimonial interest, the council recommends that multiple-programming cinema services, as defined in the decree of January 17, 1990, which do not exclusively show cinematographic works, should be subject to legal deposit. It also proposes that, in view of the interest they may present, self-promotional services and services mainly or exclusively devoted to teleshopping, as defined by the decree of March 27, 1992, should also be subject to legal deposit with INA.

In addition, the Council considers it necessary to point out that data associated with the main program of an authorized television service within the meaning of article 28, 15° of the law of September 30, 1986, are subject to legal deposit with INA, as long as they are within the scope of the service.

With regard to the legal deposit of on-demand audiovisual media services (SMAD), the Board considers that, for the sake of clarity and consistency, articles 9 and 10 of the draft decree could be amended. Indeed, it considers that, as they fall within the scope of audiovisual communication, by virtue of article 2 of the law of September 30, 1986, these services should fall within the competence of INA, as a matter of principle and regardless of the medium in which they are shown, except when they are part of a supply composed of "on-demand audiovisual media services and other services not falling within the scope of audiovisual communication" within the meaning of the last sentence of this article.

Thus, all audiovisual communication services, with the exception of SMADs forming part of a mixed supply, would fall within the competence of the INA, and all online public communication services, with the exception of television and radio websites and sites mainly devoted to television and radio programs, would fall within the competence of the Bibliothèque nationale de France.

In order to implement the above observations, the Board proposes the drafting changes listed in the appendix.

The present notice will be published in the Journal officiel de la République française.

Paris, June 14, 2011.

For the French Superior Audiovisual Council :

Le président,
M. Boyon