Monsieur Benoît Jullien is the Director of the Departmental Archives of Vienne. His bosses at the General Council of Vienne are fiercely opposed to the commercialization of the archives and have been in a court battle with NotreFamille, who own Généalogie.com, since 2009, trying to block their commercial use of and indexing of images of parish and civil registrations and census returns taken from their website. In 2013, Vienne won a judgment handed down by the Tribunal in Poitiers, the court approving their argument that, as they had spent 230,000 euros to digitize the records, they owned the database, making it their intellectual property. The French law on intellectual property clearly states that if the product were created by an entity in the public sector, it could be used strictly and only in a way necessary to fulfill the functions of public service, (such as ensuring free access to public archives). And anyway, Vienne added, "it is indecent to make money from the work done with public funding".
Another argument has been that this commercialization, by charging a fee for access, actually infringes upon the freedom of access to the records in question, which was enshrined in a 1978 law. NotreFamille countered with a 2005 law that mandated that archives, as a part of France's national heritage, must be available to be used freely by all citizens. In February of this year, a court of appeal at Bordeaux annulled the Poitiers decision and it seemed that NotreFamille, who have fought in courts against every similar objection of Departmental Archives around the country, had won.
Tempers were high; articles appeared in the press with such titles as "Your Ancestors Will Soon Be For Sale". But the court of appeal had only annulled the Poitiers decision and then said it would issue a new decision soon. Lo and behold, that decision was that the Departmental Archives of Vienne did own the database that they had created and could limit its re-use to public service organizations, as it wished to do. It added that NotreFamille is not a public service organization. So, though the Departmental Archives of Marne, Essonne and others lost in their courts against NotreFamille and their records are appearing on Généalogie.com, Vienne did not and those records of Vienne would not be appearing on that website.
The battle continued when NotreFamille appealed to the Council of State in April and asked it to rule on the constitutionality of the Bordeaux decision. The General Council of Vienne had ten days to prepare their case. That cost the city another 6000 euros. Last month, the Council of State ruled, and confirmed that Vienne is the owner of its database and, therefore, can decide who may republish it and how. It also refused to refer the case to the Constitutional Council. Those who see the issue as one of free access to mean also financially free cheered, while those who see the issue as one of free access to mean an unqualified absolute despaired that this was a blow to open data. Almost immediately, a lawmaker (who happens to own a data management and security company) in the National Assembly proposed a bill that would remove the wording from the intellectual property law that was used by Vienne to make its case. And there we are, for the time being.
Now, as an aside, recall that there is another set of those microfilms of the parish and civil registrations whose images form the content of the Departmental Archives of Vienne's database. The owner of that set (who happens to own duplicate sets of microfilmed registrations from nearly all of France) could also create a database of the images which would, according to the above rulings, be its intellectual property, to do with as it wishes, even index it and put it online, even charge a subscription fee to use it. As that owner is a foreign company in direct competition with NotreFamille in French genealogy markets, one interpretation of the rulings might be that the courts of France have just handed an enormous opportunity to a foreign competitor by allowing it to do in France what French companies of a similar nature may not. Never accuse this country of protectionism.
As we wrote at the beginning, Monsieur Benoît Jullien is the Director of the Departmental Archives of Vienne, reporting to the General Council of Vienne, and the capitol of Vienne is Poitiers, where the Congrès national de Généalogie was being held. NotreFamille's enterprise, Généalogie.com was, by far, the largest commercial presence at the conference, with by far, the largest stand.
Perhaps one felt a tension in the air, and perhaps this tension was the cause of the very subdued atmosphere at the conference to which we have referred? We certainly felt an extra awareness in the audience when Monsieur Jullien stood to give his talk about the purpose of archives and their role in society. We report on his steadily delivered, clear and interesting talk in our next post.
©2015 Anne Morddel