Last year, we reported the failure of the introduction of the repair clause in French design and copyright law by two successive laws, both of which were judged unconstitutional on this point because they were too “cavalier”, but we feared a new and more fruitful attempt to introduce it [1].
This has been done since last summer with the law n° 2021-1104 of August 22, 2021, known as the “climate” law, even though this repair clause is at least as cavalier as in the two previous laws from which it was excluded.
The duration of protection under designs of visible or apparent parts of motor vehicles and their trailers is reduced to ten years and, above all, a new double exception is introduced in design law and in copyright law, to the benefit of anyone to repair or change only glazing parts and, in addition, to the benefit of the manufacturers of the original part only, to repair or change all visible or apparent parts.
One can foresee without much risk of being mistaken many difficulties to apply this new double exception with variable geometry.
And one regrets above all a more conciliatory solution of the legitimate contradictory interests in presence, that is to say those of the holders of the exclusive rights, on the one hand, and those of their competitors, consumers and their insurers, on the other hand, whereas such a conciliatory solution has been identified and proposed in the form of a FRAND compulsory license to repair.
Charles de Haas
Avocat (Paris Bar)
[1] See our previous blogs on this site of March 30, 2021 and July 24, 2020.