The metamorphosis of contrefaçon in French copyright law

Copyright and PiracyIn French copyright law, contrefaçon consists of the infringement of any of author’s rights. As the only basis for a remedy for the violation of French droit d’auteur, contrefaçon originally lacked a broad scope. The expansion of contrefaçon is a relatively recent development which is now being challenged by the delinquency of the general public.
In the past, the general public associated contrefaçon exclusively with the sale of counterfeit goods of luxury brands. The media regularly echoed this narrow interpretation. It is only recently that the contrefaçon of works of authorship has been in the media spotlight. The general public has grown increasingly aware that downloading movies or songs without authorisation is illegal. In 2006, a large part of French public opinion demanded the freedom to download, in other words, the end of contrefaçon on the internet – at least as applied to non commercial users. In summary because the public understands contrefaçon to entail the penalty of either a monetary fine or the threat of imprisonment, public opinion considers actions for contrefaçon to impede free access to culture and to marginalize young people. The concept of contrefaçon is clearly undergoing an unprecedented crisis of legitimacy. This phenomenon however appears specific to droit d’auteur. In contrast, the sanctions associated with trade mark and patent infringements are not being challenged; in fact the European Union does not hesitate to describe these infringements as a kind of international organised crime. History might help us understand why contrefaçon is so contested when it comes to copyright. This chapter therefore will broadly survey the history of contrefaçon in French droit d’’auteur.

Contribution de David Lefranc parue in Lionel Bently, Jennifer Davis & Jane C. Ginsburg, Copyright and Piracy. An Interdisciplinary Critique, Cambridge University Press, 2010, pp. 55-79