France: Wikimedia loses constitutional challenge to law protecting images of national buildings

Under section L.621-42 of the Heritage Code, the commercial use of “the image of the buildings that constitute the national domains, in any medium” is subject to the prior authorisation of the building’s manager.

“National domains” are defined elsewhere in the Heritage Code as “real estate complexes that have an exceptional link with the history of the Nation and of which the State is, at least in part, the owner”.

The law was introduced in July 2016 and was challenged before the Constitutional Council, the highest constitutional authority in France, by Wikimedia France and digital rights group La Quadrature du Net.

Paris-based lawyer Alexis Fitzjean Ó Cobhthaigh, acting for the two organisations, argued that the law is “contrary to a fundamental principle recognised by the laws of the Republic, according to which the exclusivity of the economic rights attached to an intellectual work must necessarily be extinguished after the expiry of a certain period”.

He also advanced arguments that the law is not in the general interest, is disproportionate, and infringes rights of photographers.

In a decision, the Constitutional Council said there was a general interest in protecting the national domains from character damage.

The Council also pointed out that authorisation is only required for commercial uses and not for uses that are “cultural, artistic, pedagogical, educational, research, information, illustration of the news or related to the exercise of a public service mission”.