The law and CCIs: some surprising findings!

Regulating activities of general interest?

An exchange with Professor Hervé Isar, Director of the interdisciplinary laboratory for media law and social change, showed just how complex the relationship between law and CCIs is, and how particularly marked it is by French specificities. Without analysis, it's easy to imagine the "Cultural and Creative Industries" sector (referring to cinema, theater, books and the performing arts, to name but a few) as falling under the logic of business (and therefore, by principle, subject to commercial law). It's also easy to imagine that its cultural dimension refers more to freedom of expression, as well as freedom of creation, and therefore to a principle of non-regulation.

In France, however, the reality is quite different, and the density of legislation in this sector is particularly surprising. This can be explained, first and foremost, by the place of culture in France's collective history. Cultural and creative activities have long been perceived as activities of general interest, and continue to embody values of equal access and citizenship. For these reasons, a large proportion of cultural production has, in whole or in part, been taken out of the hands of the market alone, and benefits from derogatory legal frameworks or regulated public subsidies. The law on the single book price and the status of intermittent entertainers are examples of this exceptional right.

A balance between regulation and creative freedom

In this respect, it is interesting to note a very French ambivalence: "we" consider it legitimate for public authorities to intervene in these sectors, but claim absolute creative freedom for artists. As a result, dense regulation attempts to strike a balance between these two "extremes". To this legislative complexity we must add the complexity of literary and artistic property law (with its moral and patrimonial aspects), completing the picture of a Kafkaesque hexagonal legislation. Digital technology has now been added to the equation. Digital technology has already led legislators to add new layers of regulation to keep pace with the upheavals that have occurred, but with little success, as digital technology is now reexamining the very concept of artistic creation (via the advent of generative artificial intelligence in particular). Digital technology is undermining the historical architecture of our laws.

While the French system is still resilient, supranational laws (European in particular) are emerging in increasing numbers. So, if we are to maintain the spirit of these laws in the future, which organize the intervention of public authorities in the interests of the greatest number and the protection of authors, the law will be forced to continue evolving. But if tomorrow's goal is to truly recognize the "industrial" dimension of this sector, it is likely that the whole of CCI law will have to reinvent itself, with the first consequence being the probable disappearance of our numerous protection mechanisms. To be continued!