Meryem Marzouki (Meryem.Marzouki/at/lip6.fr), CNRS-LIP6/PolyTIC and IRIS
In
This early version of this draft text has been expanded upon by the government, and submitted to some relevant official organisations for comments before its adoption by the Council of ministers to become a draft law. During this process, the draft text is generally not publicly available.
The December 2002 version is however available on the Web site of the High Council on Literary and Artistic Work Property, or High Council on Copyright (Conseil supérieur de la propriété littéraire et artistique, CSPLA)[3]. This version[4] of the initial draft law is dated December 5, 2002. The French government has announced that a draft law should be submitted to the Parliament in early May 2003, such that a first reading could be completed before summer[5]. Despite this announcement, the draft law is still awaited on June 15, 2003. Moreover, a second version of the initial project law, dated April 4, 2003, has been made public by the Belgian association AEL[6] on May 5, 2003.
The first version of the initial draft law, as well as the report on its discussion by the CSPLA during its session of December 5, 2002[7], remain, until now, the only publicly available official documents on the implementation process of the Directive in France. Although the final draft law may differ from its initial versions, these official documents will be the main basis of the discussion in this chapter, taking also into account the unofficial April 2003 version. For a better understanding of the whole process and the evolution of the different arguments, this report will successively analyze both versions of the initial draft law.
The government presented its plans for the transposition of the Directive to the CSPLA as early as December 2001[8], while the issue of private copy management in the digital environment has been discussed by a specialised commission of the CSPLA established in May 2001[9].
In addition, parts of Article 8 of the Directive (namely Article 8(3) provisions) are also implemented in section 3 of the draft Law on the digital economy (Loi pour la confiance dans l’économie numérique) which transposes the E-commerce Directive (Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market). This draft law has already been adopted in first reading by the National Assembly on February 26, 2003. The next step is its discussion by the Senate in June 2003[10].
It should be noted that the political majority has changed in France after the presidential and legislative elections of Spring 2002. This change of government and of the National Assembly, from a social democrat to a conservative majority, may partly explain the delay in the implementation process.
The delay may also be a consequence of the fact that the transposition has been seen as an opportunity to introduce or modify provisions on highly sensitive issues in France: legal deposit of digital work, increased control of royalty collection and redistribution organisations, and author right in the “work for hire” situation. The transposition process is developing in the highly controversial context of the extension of private copy compensation through a tax on computer hard discs. The discussions on this issue obviously relates to technical protection measures such as those preventing some CD or DVD reading – and a fortiori copying – on computers. Finally, the reluctance of the French government itself to implement the Directive, especially because of the exceptions and the technical measures which are not well known yet, adds to the delay.
Intellectual property and copyright laws differs between European countries. It is thus important to explain the national context and background so that the national implementation specifics may be better understood[11].
The French copyright regime is, as in some other European countries, based on the author right rather than on the producer right. This applies to the moral right of the author, protected by Article 6bis[12] of the Berne Convention for the Protection of Literary and Artistic Works[13], as well as to the patrimonial right. This centrality of the author right allows at the same time for the best – an extended protection of the author against, e.g. his/her employer[14] – and for the worse – a limited regime of exceptions, even for non-commercial use. The French legislation is consolidated in the Intellectual Property Code (IPC)[15].
The author right is made up of a moral part and a patrimonial part, and allows for an exclusive and intangible property right in the creative work that can be applied to all[16]. The intangible feature of this property is related to the creative work itself and implies that the author right cannot be transferred with its material medium (e.g. a journal article or a book or a painting or any other medium). The exploitation right must be negotiated in itself, and renegotiated for further use, if any. The moral right can never be extinguished. The exclusive feature of the property right remains with the author, unless in the case of a collective work[17] where the personal contribution of each creator cannot be distinguished. In this latter case, the author is the natural or moral person in whose name the work is published.
The author right protects any creative work provided that it is original, i.e. it expresses the personality of the author, and that it is fixed in tangible form. This last condition excludes the protection of ideas, concepts and methods.
An exploitation right, as part of the patrimonial right, is simply intended in the French legislation as either a right to reproduce the work or a right to communicate it to the public. As noted in a report by the French Conseil d’Etat[18], this formulation is general enough to allow for its easy adaptation, especially in the digital world, by case law.
The author right is protected during the whole life of the author and until 70 years after his/her death. Infringements of the author right are subject to civil and criminal penalties: two years of imprisonment and about 150,000 € fine. Additional penalties may apply.
Exceptions to the author right are strictly limited and only apply to the exploitation right[19]. There are five categories of exceptions that the author cannot forbid, once the work has been divulged:
· The private and free communication of the work, exclusively to the family circle, i.e. at home. This excludes, e.g., members of groups, like associations or companies, or even classrooms;
· The private copy of the work, strictly for the personal use of the person who makes the copy, and not to a collective use. This exception doesn’t apply to artwork copies intended for the same use as the original, to software (except only one saved copy), and to databases;
Provided that the author name and the source are clearly identified:
· The analyses and short citations of the work, when they are incorporated in a critical, polemic, pedagogical, scientific or informative work;
· Press reviews;
· The circulation, even integrally, of public speeches made in political, administrative, judicial or academic assemblies, as well as in public political meetings and official ceremonies. This diffusion should have a news character;
· The partial or integral reproduction of graphic or plastic art work in a sell by order of the court catalogue;
· The parody, pastiche or caricature of the work, taking into account the normal exercise of this activity;
· The necessary process to access an electronic database, within the conditions specified by contract.
In addition, the author cannot forbid any act necessary for a lawful judicial or administrative procedure, or undertaken for the purpose of public safety.
The proof of a right infringement can be established by law enforcement authorities (LEA) as well as by sworn-in agents. Police chief officers or magistrates may seize illicit reproductions of works. Preventive seizure procedure[20] may also apply under the injunction of a magistrate. This preventive procedure may be stopped by a request made to the magistrate within 30 days.
Finally, the concept of legal license has been introduced in order to allow for a compensation of photocopying for collective use, which has developed in practice, especially in schools and universities. This applies to any reprographic reproduction of a work on paper (photocopying or printing, but not digitising). In this case, the author must transfer the reproduction rights to a collective right management organism, which must be recognised by the Ministry of Culture. These organisms are the exclusive negotiators of such reproduction rights.
The related rights apply to performers, phonogram and videogram producers and audiovisual communication companies. They allow for an exclusive right of authorising or forbidding the use or exploitation of their performance or production and of being remunerated for it. They are independent from the author right and cannot be exercised at its prejudice.
Their protection lasts for 50 years after the performance or the first fixation on a material medium (phonograms and videograms) or the first communication to the public of the audiovisual program. The related rights are limited by the same list of exceptions as the author right[21]. Infringements of the related rights are subject to the same civil and criminal penalties as the author right.
The proof of a related right infringement can be established by law enforcement authorities (LEA) as well as by sworn-in agents. The preventive seizure procedure is more extended than in the case of the author right: law enforcement authorities (LEA) can seize illicit reproductions and equipment especially installed for illicit reproduction purposes, as soon as the infringement has been established. This preventive procedure may be stopped by a request made to the magistrate within 30 days.
A legal license system has also been established for phonograms published for commercial purposes. The performer or the producer of the creative work cannot forbid direct communication to the public (unless in a spectacle) or audiovisual diffusion. In this case, the performer or the producer must transfer reproduction rights to a collective right management organisation, which must be recognised by the Ministry of Culture. These organisations are the exclusive negotiators of such reproduction rights. The resulting compensation is equally shared by the performer and the producer.
Since the private copy is one of the exceptions to the author right as well as to related rights, a special remuneration system has been implemented since 1985 in the French legislation for the compensation of the rightsholders in this case.
The private copy compensation benefits authors, performers and producers of phonograms and videograms. It also benefits authors and publishers of works fixed in any medium, when they are reproduced on a digital medium. The compensation amount is a flat rate, collected as a tax paid by the consumer on any audio or video recording media bought.
The compensation is collected on behalf of the rightsholders and redistributed to them by special organisations (75% of the total amount goes to the rightholders, the remaining being used as a fund for promoting creativity). Phonogram compensation is shared among authors (1/2), performers (1/4) and producers (1/4). Videogram compensation is equally shared between them. Remuneration for works fixed in other media is equally shared by authors and publishers.
The tax rate, as well as the list of media affected and the compensation modalities, are established by a special commission, called the “Commission for the private copy” (or Commission Brun-Buisson, after the name of its president) established in 1985[22]. This Commission is headed by a government representative and composed in half by representatives of rightsholder organisations, and in half by an equal number of both the audio and video media industry and consumer organisation representatives. The Ministry of Culture nominates eligible organisations. There can be no appeal of the Commission’s decisions, which enter into force one month after having been made unless its president calls for another deliberation. They are published in the Official Journal of the French Republic.
Current rates and affected media are detailed in a document[23] from one of the main righstholder organisations, the Society of Dramatic Authors and Composers (Société des auteurs et compositeurs dramatiques, SACD)[24].
In 1986, the first rates were established and only analogue recording media were considered: 0.23€ (audio) and 0.34€ (video) per recording hour.
In January 2001, these rates saw a 25% increase (becoming 0.28€ and 0.42€, respectively), and the tax was extended to digital retractable recording media, be they audio, video, or data: Minidisc, CD-R, CD-RW, DVD-R, DVD-RW, DVD-RAM, DVHS, and retractable memories for audio recording. The rate for data media is established per memory capacity.
In July 2002, the Commission again extended the tax to a new recording medium: those embedded in commercial equipment dedicated to music and video, when this equipment has recording features. This applies to TV sets, video recorders and “personal video recorders” (video: 10€ under 40GB capacity, and 15€ for 40-80GB) as well as to MP3 Discman and other digital audio recorders (scaled from 8€ under 5GB to 20€ for 20-40GB).
The extension of the “private copy tax” to computer hard discs was discussed as early as 2001, but has faced severe opposition mainly from consumer organisations and the recording media industry. The then Minister of Culture, who first supported the idea, received strong criticism, even from her colleague from the Ministry of Economy, Finance and Industry who already favoured at that time the alternative of technical controls[25]. The proposal was then dropped, though periodically discussed again, always facing the same opposition.
The High Council on Copyright (CSPLA) was created on July 10, 2000, and started its work on May 11, 2001. Its role is to advise the Ministry of Culture on Literary and Artistic Work Property.
The CSPLA is composed of seven representatives from various ministries, eight qualified personalities[26], and 32 representatives from the following organisations: authors (10), authors and publishers of software and databases (2), performers (2), phonogram producers (2), press publishers (2), book publishers (2), audiovisual producers (2), movie producers (2), radio broadcasters (2), TV broadcasters (2), on line services producers (2), consumers (2). Apart from other ministries’ representatives, CSPLA members are nominated by the Ministry of Culture.
The CSPLA can create specialised Commissions to study and make recommendations on specific issues. Seven of them have been created up to now, including one on private copy remuneration (created on June 15, 2001) and the newest one, dealing with literary and artistic work property and individual liberties (created on October 16, 2002). The letter[27] commissioning the president of the latter explicitly mentions the Copyright Directive transposition, and the possible individual liberties violations resulting from the technical controls protected by the Directive, especially regarding personal data protection concerns. This letter however states that the Directive does not impose the implementation of such technical control, only their judicial protection. The Commission has yet to publish anything.
The initial draft law was composed of five Titles:
Title I – Provisions transposing the Copyright Directive;
Title II – Legal deposit;
Title III – Fighting right infringement;
Title IV – On royalty collection and distribution organisations;
Title V – Author right of civil servants.
As one can easily see, the Directive transposition is not the only purpose of this initial draft law. Moreover, some of the other provisions may become highly controversial when the draft law is examined, possibly receiving most of the public and media attention[28].
Additional very controversial provisions may be added later, such as a modification of the author right regime of private sector employees to the benefit of their employer. This modification would introduce a major shift in the French author right regime, leading to a more Anglo-Saxon copyright regime.
A coalition of journalist trade unions, associations of photographers and two author right organisations have already started a petition campaign[29] against such a modification, which has been promoted for several years by publishing corporations. A report commissioned by the French Ministry of Culture in October 2002 concluded that such an important modification is not recommended at this point since the positions of the employer organisations on the one hand and of the trade unions on the other could not lead to a consensus. But unexpected modifications may appear in the draft law or during its discussion by Parliament.
Title I of the initial draft law is made up of 3 chapters.
Chapter I (sections 1—6) – exceptions to the author right and related rights. This chapter transposes Article 5 of the Directive.
Chapter II (section 7) – duration of the related rights. This section is the transposition of Article 11(2) of the Directive (“Technical adaptations”).
Chapter III (sections 8—19) – technical measures for protection and information. This chapter transposes Articles 6 and 7 of the Directive.
Title III (sections 27—30) of the initial draft law partly implements Article 8 of the Directive, whose remaining provisions are implemented in section 3 of the draft law on the digital economy.
Article 5(1) of the Directive is the only mandatory exception. It is thus implemented in its exact terms by sections 1 (exception to the author rights) and 2 (exception to the related rights) of the initial draft law. It has to be noted that section 1 is however more restrictive than the Directive since it excludes software and databases; although this can seriously affect caches and proxies in several cases, the government justification for this is the Directive Article 1.
Article 5(3)(b) of the Directive – exceptions for the benefit of persons with disabilities – is implemented by sections 3 (exception to the author rights), 4 (exception to the related rights) and 5 (extraction and reuse of a database as an exception to database producer rights; one can note that the Directive’s Article 1 seems not to apply anymore in this case in the French government’s understanding) of the initial draft law.
The resulting provisions are far more restrictive than the Directive:
· The exception only concerns reproduction and communication to the public made by moral persons designated by the Ministry of Culture on a special list;
· The people who can benefit from this reproduction or communication to the public made by these organisations should be affected by the following precisely defined disabilities: mental, hearing or visual impairment, which in addition must have been recognised by special Commissions and quantified at a minimal disabling rate of 50% of the person’s ability;
· The designated moral persons must prove that they have an effective professional activity of design and development of products dedicated to the so defined disabled public.
· Where the Directive allow for uses to the benefit of disabled persons, the French implementation thus restricts these uses to the inclusion of a work in dedicated products for only the most disabled public.
Article 5(3)(a) of the Directive should be transposed by section 6. Nevertheless, the transposition of this provision is not yet known. It is only mentioned in section 6 of the initial draft law that “possible exceptions for the benefit of teaching and scientific research await proposals from the Ministry of Education”. From the position already expressed by rightsholders, especially publishers, it can be expected that the implementation of this provision would be minimal, if any.
This issue seems to have further delayed the transposition process: the draft law should have been submitted to the Parliament during first quarter of 2003, while the discussions between the Ministry of Culture and the Ministry of Education were not yet finished on March 6, 2003, when the Minister of Culture announced to the CSPLA that the draft law would be examined by the Parliament in May.
None of the other exceptions is transposed in this initial draft law. Some of them already exist in the French Intellectual Property Code, as shown in the previous section on French context and background, even though they are sometimes more restrictive than their equivalent in the Directive. The remaining exceptions have not been implemented because the French government has favoured the position of rightholders organisations. These positions have been strongly expressed on several occasions and especially during CSPLA plenary meetings, not to mention the intensive lobbying of these organisations. Representatives from the government have themselves stated many times during CSPLA meetings their preference for a minimal transposition of the Directive, by implementing only mandatory provisions[30].
Article 6 of the Directive is implemented by sections 8 and 10—15 of the initial draft law.
The concept of technical protection measures and more generally of Digital Rights Management does not exist in the French Intellectual Property Code. It is therefore introduced in the legislation in order to implement their judicial protection, of which transposition is mandatory.
Section 8 of the initial draft law introduces a new section L.331-5 to the “Procedure and sanctions” title of the IPC. This new article applies to authors (excluding software authors), performers, producers of phonograms or videograms and audiovisual communication companies.
It states that these rightsholders may implement technical measures protecting their rights recognised by the IPC. When implemented, these measures are imposable on all. However, they should allow the benefit of some exceptions when they are exercised in the framework of a lawful access to the work. These exceptions are limited to the exception of the private copy for personal use, the exception for the benefit of disabled people, the exception for the benefit of teaching and scientific research[31], and the exception for the purpose of public safety, all as defined in the French legislation.
The new section L.331-5 further states that the rightsholder is not compelled to remove the technical measure when the work has been made publicly available such that any person may access the work at the time and place of his/her choice, provided that this is a lawful access.
Finally, the article states that a judge may compel any rightsholder to ensure the benefit of the exceptions provided for in this section.
The last two provisions of have been considered very ambiguous by rightsholder organisations, who consider that this may forbid any implementation of technical measures. They would favour an explicit reference to private copies made through external sources (e.g. the possibility of making a private copy of a movie only through its TV broadcast should be, for them, enough to allow the exercise of the private copy exception benefit).
As a final comment on section 8 of the initial draft law, it should be noted that the concept of “effectiveness” of the technical measures is completely absent from the French transposition. Therefore, there is no reference to any particular technical measure, and the scope of this article may be very large.
The remaining provisions of Article 6 of the Directive are implemented by sections 10—15 of the initial draft law. The most important is section 14, while the others ensure consistency of the IPC with the provisions of section 14.
Section 14 equates the circumvention of a technical measure with a right infringement (which is considered as a counterfeit of the work in the French legislation), punishable by the same criminal penalties (two years imprisonment and about 150,000€ fine). While the French government claims it is aiming to minimally transpose the Directive, this is quite an extensive implementation, given that Article 6(2) of the Directive provides only for “appropriate” judicial protection against technical measure circumvention.
Section 14 equates the following activities to a right infringement:
· To undermine, in the knowledge of pursuing this objective, any technology, product, equipment, device, mean, service or component which, in its normal use, allows the control of the usage of a work;
· To manufacture, import, sale, lend, rent, to possess for sale, lend or rent purpose, to put at disposal or to provide any service, information or means intended to achieve, partly or integrally, this undermining;
· To order, design, organise, reproduce, or distribute an advertisement, to make known, directly or indirectly, any technology, product, equipment, device, mean, service or component designed to or which purpose is to ease or allow this undermining or the previously described activities.
Article 7 of the Directive is implemented by sections 9 and 16—17 of the initial draft law.
Section 9 introduces a new section L.331-6 to the “Procedure and sanctions” title of the IPC. It is symmetrical to section 8, but related to rights-management information. This new section applies to all rightsholders except software authors. It states that these rightsholders may implement any technical measure, in the form of electronic rights-management information allowing the identification of a work, performance, phonogram or videogram or audiovisual programme as belonging to the rightsholder, as well as to detail its usage conditions and modalities. When implemented, these measures are imposable on all.
Sections 16 and 17 equate the suppression or modification of rights-management information to a right infringement (which is a counterfeit of the work in the French legislation), and punishes it with the same criminal penalties (2 years of imprisonment and about 150,000 € fine). This is an even more extensive transposition of the Directive than in the case of the Article 6 transposition.
Section 16 equates the following activities with a right infringement, when they are undertaken without the author’s authorisation:
· To remove or modify, in the knowledge of pursuing this objective, any piece of information in electronic form related to the right regime;
· To distribute, import, introduce or make known to the public, directly or indirectly, a work whose rights-management information has been removed or modified;
· To organise or distribute any advertisement on the means to achieve the activities described in the previous two items.
Article 8 of the Directive is transposed in three parts. Article 8(1) provisions are implemented by the definition of the penalties themselves described in the previous sections, as part of the implementation of Articles 6 and 7 of the Directive; Article 8(2) provisions are implemented in sections 27—30 of the initial draft law on author right and related rights in the information society; and Article 8(3) provisions are implemented by section 3 of the draft law on the digital economy, which transposes the E-Commerce Directive.
On Article 8(1) provisions, one should further note that, apart from the general judicial process remedies, the only remedy when technical measures do not allow the exercise of the recognised exceptions is by judicial injunction.
Article 8(2) of the Directive is transposed into sections 27—30 of the initial draft law. Section 27 deals with actions for damages. It extends the scope of author organisation capacities in that they can now themselves bring an action for damages, when the direct or indirect prejudice due to the right infringement concerns the collective interest of authors. Nevertheless, section 27 restricts at the same time the kind of author organisations benefiting from this extended scope, since these organisations must now be accredited by the Ministry of Culture, following conditions that should be stated by an application decree.
Section 28 deals with the establishment of the right infringement by sworn-in agents hired by rightsholder organisations, including technical measure circumvention and rights-management information modification or removal. The conditions for their agreement by the Ministry of Culture are restricted.
Section 29 specifies and restricts the conditions for the sworn-in agents to access professional places in order to establish the right infringement and possibly seize material. The consent of the person responsible for this place is needed.
Section 30 states that, in the absence of consent to access the professional place, a magistrate’s injunction is needed.
Article 8(3) provisions of the Directive are implemented by section 3 of the draft law on the digital economy, which transposes the E-Commerce Directive. This can be explained by the fact that this draft law deals with Internet Service Providers (ISP) liability and obligations. Section 3 of the draft law on the digital economy concerns author right and related right holders. It mainly provides for ordering, by a magistrate’s injunction, a French ISP to stop hosting content infringing the author right or to block access to it. This is, again, a preventive procedure since the right infringement has not yet been proved under the magistrate’s supervision. This preventive procedure may be stopped by a request made to the magistrate within 15 days.
The general architecture has slightly changed in this second version, with the merging of Title III into Title I, which now covers all the provisions transposing the Copyright Directive. The content of some articles has changed, and some important new provisions have been added.
The 4 April 2003 version of the initial draft law is now composed of four Titles.
Title I – Provisions transposing the Copyright Directive;
Title II – Legal deposit;
Title III – On royalty collection and distribution organisations;
Title IV – Author right of civil servants.
Title I of the initial draft law is still made up of 3 chapters.
Chapter I (sections 1—5) – Exceptions to the author right and to the related rights. This chapter transposes Article 4(2), Article 5(1) and 5(3)(b) of the Directive.
Chapter II (section 6) – Duration of the related rights. This article is the transposition of Article 11(2) of the Directive (“Technical adaptations”).
Chapter III (sections 7—14) – Technical measures for protection and information. This chapter transposes Articles 6, 7 and parts of Article 8 of the Directive, whose remaining provisions are implemented in section 3 of the draft law on the digital economy.
The following table shows the resulting modifications, article by article. Only Title I (new version) is taken into account in this table.
|
Version 1, December 5, 2002 |
Version 2, April 4, 2003 |
|
Chapter I, Title I |
|
|
s.1 |
s.1: almost unchanged (Transposition of Article 5(1) of the Directive). |
|
s.2 |
s.2: almost unchanged (Transposition of Article 5(1) of the Directive). |
|
s.3 |
s.3, item 1: changes made (Transposition of Article 5(3)(b) of the Directive): mobility impairment is now also taken into account eligible moral persons now includes those having a communication activity An application decree is now needed for this provision |
|
s.4 |
s.3(2): unchanged (Transposition of Article 5(3)(b) of the Directive). |
|
s.5 |
s.3(3): unchanged (Transposition of Article 5(3)(b) of the Directive). |
|
|
s.4. (New). Transposition of
Article 5(5) of the Directive. |
|
|
s.5. (New). Transposition of
Article 4(2) of the Directive. |
|
s.6 |
Removed. There will be no exception for the benefit of teaching and scientific research in the French transposition. |
|
Chapter II, Title I |
|
|
s.7 |
s.6: almost unchanged, now with videograms taken into account |
|
Chapter III, Title I |
|
|
|
s.7. (New): subsection 1: Efficient technical measures for right protection are protected under the same conditions as for the rights themselves (equated to counterfeit, with similar criminal penalties). subsection 2: such technical measures,
and their efficiency, are now defined in the sense of the Directive, Article
6(3). |
|
|
s.8. (New): Transposition of the Directive, Article 6(4). |
|
s.8(1) |
Removed. The concept of technical measures for right protection is now supposed to implicitly exist in the French legislation. |
|
s.8(2) |
Now covered by new s.8. |
|
s.8(3) |
Removed. No reference to a judge anymore. |
|
|
s.9. (New): This article introduces a mechanism of alternative dispute resolution to ensure the benefit of both exceptions of private copy for personal use and for the benefit of disabled people. This exclusive mechanism replaces the recourse to a judge. Decisions are made by a mediation body, chaired by a magistrate and also composed by two “qualified personalities” proposed by the ministers of Justice, Culture and Industry, and nominated by Decree. Any person benefiting from the relevant exceptions or his/her representing organisation may file a case with the mediation body. The mediation mechanism should find a solution to any case within 2 months, renewable once. The mediation body first tries to find an agreement between the parties. In case of failure, it makes a decision, which is public and may be appealed within 15 days before the Appeal Court of Paris. The Appeal Court should make a decision within 2 months. This appeal suspends the mediation body decision. The mediation body publishes an annual public report. All its decisions are public. Finally, this new s.9 is subject to the publication of an application decree. |
|
|
s.10. (New): subsection 1: Technical measures for rights-management information are protected under the same conditions as for the rights themselves (equated to counterfeit, with similar criminal penalties). subsection 2: such technical measures are defined in the sense of the Directive, Article 7(2), including traceability mechanisms in the work. |
|
s.9 |
Removed. The concept of technical measures for rights-management information is now supposed to implicitly exist in the French legislation. |
|
s.10 |
s.11. Ensures consistency of the IPC with the provisions of new s.12 |
|
s.11 |
Now covered by new s.11. |
|
s.12 |
Now covered by new s.11. |
|
s.13 |
Now covered by new s.11. |
|
s.14 |
s.7(1) and s.12(1): almost unchanged |
|
s.15 |
s.13(1): almost unchanged |
|
s.16 |
s.10 and s.12(2): almost unchanged |
|
s.17 |
s.13(2): almost unchanged |
|
s.18 |
s.14. Protection of technical measures is extended to databases right holders with the same conditions and penalties as for author right and related rightsholders |
|
s.19 |
Now covered by new s.14. |
|
Title III |
|
|
s.27 |
Removed. |
|
s.28 |
Removed. |
|
s.29 |
Removed. |
|
s.30 |
Removed. |
Supporters of the technical measures for rights protection and management mainly expressed themselves in lobbying meetings, rather than by public positions. However, minutes of the CSPLA meetings reveal some of their arguments. These arguments may be summarised in a single word: piracy.
The CLIC (Cultural industries liaison committee, formed on 21 June 2001, containing most of the rightsholders organisations, royalty collection and redistribution societies, and syndicates of book publishers, music and movie producers, etc. – a very powerful coalition), has always been in favour of technical measures, as recalled in its declaration during the MIDEM (music producers’ annual fair) in January 2003. Its position is that a single private copy is enough, and this copy does not even need to be of the same quality as the original (meaning that such a copy could perfectly well be made through recording equipment, when the work is broadcast on radio or TV). The CLIC also supported the mediation body, at that time only a proposal from the CSPLA, and now implemented in the second version of the initial draft law. Members of the CLIC are very well represented in the CSPLA, and very active during its meetings.
Apart from these French supporters, the MPAA[32] also entered the French debate, in a joint declaration[33] from Jack Valenti, MPAA Chairman and CEO, and Jean-Jacques Aillagon, French Minister of Culture, published during the Cannes movie festival. This declaration states that the fight against audiovisual piracy needs political will by government to “facilitate the tracking, prosecution and punishment of digital thievery, a firm resolve to pursue technological innovation so that we have the technical tools to challenge pirates, and to implement by parliamentary approval, where necessary, those legal protections and technologies which are considered to be the best way to protect creative works.” At stake being, as claimed in the declaration, the sake of creativity and cultural diversity.
The main argument used against the Directive and its transposition is related to the threat to the private copy exception, due to technical protection measures and to the equation of their circumvention to a right infringement. The technical protection is considered by its opponents as the end of the private copy exception.
Opponents to the Directive on this basis are:
EUCD.info[34], an initiative founded by French members of the free-software movement to “rescue the private copy” in the transposition of the Directive. Its actions will be further detailed in this chapter. It is supported by the main French free-software defence organisations (APRIL[35], FSF-France[36], AFUL[37]).
UFC-Que Choisir[38], a consumer organisation, which fights against excessive private copy remuneration, and especially its extension to a tax on computer hard discs. Since UFC-Que Choisir is one of the major French consumer organisations, its position has very well been reported in the media. UFC-Que Choisir has recently sued[39] two majors: EMI Music and Warner Music for violating the right of private copy, and two big French distribution companies, Auchan and FNAC, for failure to inform consumers.
CLCV[40], another French consumer organization also sued[41] EMI Music, BMG and Sony Music, for failure to inform and for misleading the consumer on the actual use of the product. Prior to these actions, CLCV and UFC-Que Choisir have called on consumers to give evidence. These calls have received hundreds of answers.
CPHL[42], the Confederation of Free Disabled persons, which sent a letter to the Ministry of Culture when the transposition project was unveiled by a daily newspaper. Their argument is that disabled persons have difficulties using CD readers, thus they must use their computers for playing CDs. They have not reacted – at least publicly – to the restrictive transposition of the exception for disabled people.
Author (SACD[43], and others like SACEM to a lesser extent) and performer organisations (ADAMI[44], SFA[45], SNAM, SPEDIDAM[46]), on the basis that the technical measures may suppress any possibility of private copy, thus they may endanger authors’ and performers’ remuneration for private copy. On the issue of technical protection measures, they are opposed to the music and movie industry. However, regarding other aspects of the Directive transposition, authors’ and performers’ organisations have a very aggressive defence strategy.
SIMAVELEC (French syndicate of electronic audiovisual equipment manufacturers), has affirmed in February 2003 that the private copy exception is a right of the consumer, which has nothing to do with piracy[47]. The SIMAVELC is in fact more fighting the private copy remuneration system than the technical measures for rights protection and management.
This exception was expected in the 5 December 2002 version of the initial draft law, but has disappeared in the second version of 4 April 2003. This could have already been inferred by the positions expressed by publishers during CSPLA meetings, and has been clearly stated in a public written exchange.
The CPU[48] (Conference of the presidents of the nearly 100 French Universities), has published a position[49] on 21 February 2003, asking the government to introduce in the draft law an “educational exception” for the benefit of teaching and scientific research, and for use in public libraries and museums, without any financial compensation. The argument used was that in the absence of such an exception, the transposition law would result in a double financial penalty for such institutions, since a new law is in the process of applying remuneration for authors on each book borrowed from a public library.
Major book publishers, including university work publishers, replied to this position in an article published on 18 April 2003 in Le Monde, the main French daily newspaper[50], accusing the CPU of trying to simply kill university work publishers. The arguments used appealed to a kind of “patriotism”: remunerating French publishers was claimed as the only way to avoid publication of their work in English only by French academics and to avoid the transformation of the French author right into an Anglo-Saxon like regime of copyright. In addition, this remuneration would avoid the replacement of true editors by “printed papers merchants”… In its reaction[51], the CPU said that this article clearly showed that the publishers were defending their own rights, and not those of the authors, especially since, when their works are published, academics give all their patrimonial rights to their publishers, and only receive a symbolic flat remuneration. Moreover, the CPU reaffirmed the right to knowledge, and its position against a double financial penalty.
Other arguments against the Directive and its transposition, especially regarding Article 6, have only been raised by the EUCD.info initiative. These arguments are shared by the European coalition of organisations against the Directive, of which EUCD.info is the French part, and are explained in a document entitled “Economic and social damages due to Article 6 of the EUCD”[52]. Besides the risk to the private copy, the main arguments are (examples and references are provided in their document):
· violation of the right to read and to use a work even with lawful access, since the technical measures may restrict the use to some materials only;
· negation of the principles of access to culture and the public domain, especially in the case of usage by libraries, because the technical measures would remain even after the duration of the author right or related right;
· violation of privacy, when the technical measure relies on personal data information collection; a document entitled “DRM systems and personal data protection”[53] has been published on this issue;
· obligation of dependent sale, when the technical measure imposes the purchase of special equipment to use the work;
· endangering of innovation, since reverse engineering would be a circumvention of technical measures;
· creation of digital file format monopolies, if a technical measure is part of a given format
· encouraging the abuse of dominant positions, illegal agreements, and endangering competition;
· threat to interoperability;
· violation of a software author’s right to make public his/her work, if it is considered as a circumvention of a technical measure, especially since these measures are not precisely described;
· difficulty of legal approximation, especially given the high number of optional exceptions;
· suppression of the benefits due to unauthorised though lawful uses, since private copy and fair use may increase the number of consumers.
The main activities of the EUCD.info initiative since it was created in December 2002 have been:
· to raise awareness on this issue (organisation of and participation in conferences and meetings, participation in radio programmes…);
· to ask for participation in the CSPLA. This was not accepted, but the EUCD.info representatives have had the opportunity to discuss this matter with the Ministry of Culture representatives and to participate in a hearing organised by the CSPLA Commission especially established to examine the impact of the transposition on individual liberties;
· to raise funds in order to hire lawyers in charge of analysing the initial draft law and proposing alternatives to this text. This is quite unusual for French activists, who normally either make their own alternative proposals to draft laws, or work with volunteers (be they lawyers or other specialists that are members or sympathisers of the activist organisation).
EUCD.info leaders have not apparently made the connection with the draft law on the digital economy, which implements some provisions of the Copyright Directive, as shown in the previous section. The fight against the transposition of the E-commerce Directive in France is led by other actors, who are mainly active on civil rights and public liberties defence in the digital world. As part of their action against the draft law on the digital economy, a petition campaign[54] has been launched against provisions dealing with ISP liability, asking for the withdrawal of sections 2 and 3 of this draft law.
After the second version of the initial draft law for transposition was unveiled, EUCD.info strongly criticized[55] this new version, noting that it is worse than the former one in several aspects:
· Legalisation of the limitation of the number of private copies
· Organisation of the traceability of works or parts of works, possibly infringing people’s privacy
· Introduction of the mediation body, which is not seen by the initiative as a solution to the many problems introduced by the initial draft law.
[1] Libération. CD, DVD: menaces sur la copie privée. December 4, 2002. http://www.liberation.fr/page.php?Article=71735
[2] http://www.planetelibre.org. This website has now been closed by its owner for an undetermined period.
[3] CSPLA web site.
[4] Initial draft law on author rights and related rights in the information society. December 5, 2002. http://www.culture.gouv.fr/culture/cspla/avantproj.pdf
[5] CSPLA. Press release of March 7, 2003. http://www.culture.gouv.fr/culture/cspla/com70303.htm
[7] CSPLA. Report on plenary session of December 5, 2002. http://www.culture.gouv.fr/culture/cspla/cr051202.pdf
[8] CSPLA. Report on plenary session of December 20, 2001. http://www.culture.gouv.fr/culture/cspla/corendu201201.pdf
[9] CSPLA. Report on first plenary session of May 11, 2001. http://www.culture.gouv.fr/culture/cspla/cr110501.pdf
[10] See IRIS detailed dossier on the transposition process of the E-commerce Directive. http://www.iris.sgdg.org/actions/len/index.html
[11] An extended bibliography of reports, articles, and jurisprudence can be found on the CSPLA web site. http://www.culture.gouv.fr/culture/cspla/biblio.htm. See also the technical index on the applicable law, prepared by the French ministry of Culture (http://www.culture.gouv.fr/culture/infos-pratiques/droits/index.htm)
[12] In summary, this article deals with the author’s moral rights to claim authorship, to object to certain modifications and other derogatory actions, even after the author's death and with means of redress for safeguarding these rights.
[14] This also applies for journalists, as shown by jurisprudence. See
the related dossier on the web site of the Syndicat national des journalistes
(SNJ, the main French journalist trade-union). http://www.snj.fr/droits_auteur/droits_auteurs.htm
[15] Code de la propriété intellectuelle. http://www.legifrance.gouv.fr/WAspad/ListeCodes. Also available in English (last update: 1995): http://www.aidaa.org:591/Dir/loi/fcodep.htm
[16] Article L.111-1 of the IPC.
[17] Article L.113-2 al.3 of the IPC. The collective work should not be confused with the collaborative work (al.1 of the same article), where all the co-authors are identified and share the author right.
[18] Conseil d’Etat. Internet et les réseaux numériques. La Documentation Française,
Paris, 1998 (http://www.conseil-etat.fr/ce/rappor/index_ra_liau01.shtml)
[19] Article L.122-5 of the IPC.
[20] This special procedure is called “saisie-contrefaçon”. It is preventive in the sense that the reproductions are seized to prove the right infringement.
[21] Article L.211-3 of the IPC.
[22] Article L.311-5 of the IPC.
[23] SACD. Le droit de copier : un principe de liberté. November 2002. http://www.sacd.fr/telechargement/info_copie_privee02.pdf
[24] SACD English web site. http://www.sacd.fr/us/
[25] ZDNet France. Taxe sur les disques durs : le débat se déplace. March 12, 2002. http://news.zdnet.fr/story/0,,t118-s2106434,00.html
[26] Among them academics, lawyers, etc, as well as Leonardo Chiariglione, the Executive Director of SDMI (Secure Digital Music Initiative).
[27] CSPLA. Letter creating the specialised Commission on literary and artistic work property and individual liberties. October 16, 2002. http://www.culture.gouv.fr/culture/cspla/letviennois.htm
[28] Such a probability has already been clearly announced by the main royalty collection organizations at the CSPLA plenary session of December 5, 2002.
[30] This position of the French government has been repeated during each CSPLA plenary session discussing the Directive and its implementation. Moreover, this has been constant regardless of the political majority.
[31] Although this exception is not yet implemented, there is here a precise reference to Article 6 of the initial draft law, still awaiting proposals from the Ministry of Education.
[33] “Cannes Declaration”, May 17, 2003. http://www.culture.gouv.fr/culture/actualites/index.htm
[39] UFC-Que Choisir Press release, May 27 , 2003. http://www.quechoisir.org/Position.jsp;jsessionid=0KWWAOCMMXC05U0ZBQ5HLFI?id=Ressources:Positions:38C9E038ECC50E10C1256D3100354086
[41] CLCV press release, May 27, 2003. http://www.clcv.org/index.php?v=detail&a=info&id=66
[47] “Le Simavelec réaffirme son soutien à la copie privée”. 01Net, February 6, 2003. http://www.01net.com/article/201090.html
[49] CPU press release, February 21, 2003. http://www.cpu.fr/ActU/Actu.asp?Id=555&Inst=CPU
[50] “Pourquoi l’Université veut-elle la mort
de l’édition universitaire?” Le Monde, April 18, 2003, page 15. http://www.lemonde.fr/article/0,5987,3232--317159-,00.html
[51] CPU press release, April 18, 2003. http://www.cpu.fr/ActU/Actu.asp?Id=573&Inst=CPU
[52] EUCD.info. “Economic and social damages due to Article 6 of the EUCD”. January 3, 2003. http://www.eucd.info/eucd.fr.php
[53] EUCD.info. “DRM systems and personal data protection”. February 7, 2003. http://www.eucd.info/cspla-2003-02-07.pdf
[54] The IRIS petition has collected up to now more than 100 signatures of NGOs, trade unions and political parties and more than 2700 individual signatures. http://www.iris.sgdg.org/actions/len/petition.html
[55] EUCD.info. Press release, May 8, 2003. http://eucd.info/pr-2003-05-06.fr.php