New French Law for a Digital Republic: a step towards open access and much more!

The French Law for a Digital Republic (LDR), loi pour une république numérique was promulgated on October 7 and has become officially “loi 2016-1321 du 7 octobre 2016”. It is also known as loi Lemaire after Axelle Lemaire, the Deputy Minister for Innovation and Digital Affairs. While several provisions are already in force (like article 30 which deals with open access); others will need implementing decrees; or will come into force with the European Regulation 2016/679 (General data protection regulation (GDPR)) on May 25, 2018.

What’s new?

Preceded by an online consultation process, this Law has implemented new rules concerning free access to public documents and data; a substantial increase in administrative fines; net neutrality, the right to be forgotten, the protection of minors, the “digital death”, the right to control the use of personal data, including data portability; and, finally, open access to scientific research published in periodicals. As already mentioned, this Law is linked to the GDPR which is due to enter into force in May 2018. The Law anticipates some of its forthcoming measures.

With respect to fines, the French Data protection Authority (CNIL) may order fines up to 3 million euros (an increase from the previously maximum of 300,000 euros) in case of infringement of Act 78-17 of 6 January 1978, the Act on information technology data files and civil liberties (“loi informatique et libertés”). Under GDPR Regulation 2016/679, such administrative fines may can reach 20 million euros.

LDR implements new rights for individuals such as the right to be forgotten for minors. Minors, on reaching the majority, can now request that their personal data be erased. Some exceptions may apply. Individuals are now also able to make planning decisions about what happens to their personal information following their death.

LDR also amends the Consumer Code in order to coordinate the entry into force of the GDPR which provides data portability provisions.

Finally, LDR enhances the right to information. The individual shall have access to his data and be clearly and constantly informed by companies that collect and store these data.

What about open access?

The implementation of article 30 (former article 17 of the bill, new article L 533-4 of the Code de la recherche) opens new perspectives for open access to academic publications. This article states that authors of scientific documents that are more than 50% publicly funded may make some publications containing such research freely available online after a maximum embargo period from the initial date of publication, as long as this is not for commercial purposes. The embargo period is 6 months for science and medicine and 12 months for the humanities and social sciences.  But article 30 only applies to articles published in a journal that is issued at least once a year; thus, law librarians will understand that this unfortunately  excludes Liber Amicorum, Festschriften or mélanges. Should publishers freely grant access to these articles, authors will not have to wait for the expiration of the embargo period and may deposit their papers online immediately.

Even if article 30 does not require authors to make their research publicly available, it nonetheless offers scholars a new deal for open access and may boost deposits in online repositories. Law and Copyright librarians have a central role to play in publicizing this new rule to their patrons and in promoting full text deposit. The next open access week in October 2017 will mark the first anniversary of the Law. This should be a good opportunity to assess the effect of article 30 and measure the impact of the LDR on institutional repositories. Nonetheless, political support is still crucial. A mandate for deposit in universities should help to make this new rule a success.

Finally, France has introduced a text and data mining exception like the UK did in 2014. Article 38 amends the Intellectual Property Code (Article 122-5 10°). France have anticipated an EU reform as a TDM exception is also included in the European Commission proposal for the revision of Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society. The French TDM exception authorizes digital copies or reproductions for text and data mining for public research purposes excluding commercial exploitation. Implementation decrees are expected in 2017.

As final aside, see this interesting entry about the LDR and its implications for open science.


Michel Fraysse

Université Toulouse 1 Capitole – France