Long complex French implementation information society copyright Directive

20 November 2006

Sandrine Rambaud

The Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (“the 2001 Directive”) has been recently implemented under French law.

The French State should have implemented this directive before 22 December 2002.

Why has this implementation taken so long in France, as most of the other Member States have implemented this directive well before France?

To start with, the lateness in the implementation of this Directive seemed to be due to the elections for a new French President and for a new Parliament which both took place in 2002.

Afterwards, months and months elapsed and the technical state of the art evolved. In this context, there was a gap between solutions included in the Directive and people’s expectations.

The implementation of this 2001 Directive has raised various debates which have opposed right holder’s interests, investors’ interests, consumer’s interests and the general interest. Even the government has changed its mind several times.

It is in this context that the French Parliament has adopted on 30 June 2006 a law called « DADVSI » (for « Droits d’Auteur et Droits Voisins dans la Société de l’Information ») (the “DADVSI Law”) . This DADVSI Law has been referred to the French Constitutional Council by more than 60 deputies. In a decision dated 27 July 2006, the French Constitutional Council has cancelled some provisions of the law which have been considered as “anti-constitutional”. Finally, the DADVSI Law was promulgated on 1 August 2006.

As a result of a long process, of various delays and of lobby pressures, this DADVSI Law is not easy to read and to understand and is strongly criticised by most of the authors.

The DADVSI Law contains several sections which do not concern the implementation of the 2001 Directive. For the purpose of this article, we will focus on the provisions which implement the 2001 Directive under French law. Therefore, we shall consider the following topics: copyrights and exceptions to copyright and related rights, protection of technological measures and rights-management information, interoperability and duration of related rights.

(1) Copyrights and exceptions to the copyright and related rights

The 2001 Directive has redefined the borders of the rights granted to the rightholders. But these articles of the 2001 Directive have no impact on French copyright law.

Therefore, Parliament has only added a clarification regarding the exhaustion of the distribution right.

Thus, it is now expressly stipulated that the distribution right shall not be exhausted within the European Community in the respect of original or copies of the work, except where the first sale or other transfer of ownership in the Community of that object is made by the rightholder or with his consent. This is the consequence of free product circulation in the European Community. Before, the exhaustion of the distribution right was only specified for software.

In addition, several new exceptions to the copyright and related rights are included into French law:

  • The mandatory exception provided by the 2001 Directive – technical purposes: temporary acts of reproduction which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable a transmission in a network between third parties by an intermediary or a lawful use of a work or other subject-matter to be made, and which have no independent economic significance; this exception does not concern software and databases.

  • People with a disablity - Specific acts of reproduction made by legal entity or publicly accessible establishments such as libraries, for consultation by people with a disability;

  • Conservation purposes - Specific acts of reproduction made by publicly accessible libraries, museums or by archives, for conservation purposes or intended to preserve the conditions of consultation on site and which are not for direct or indirect economic or commercial advantages;

  • Information purposes - Reproduction or representation, in part or in a whole, of a graphic art, plastic art or architectural work, by written, audiovisual or online press, for the sole purpose of immediate information and in connection with the reporting of current events and as long as the source, including the author’s name is indicated;

  • Teaching and researches purposes - Reproduction or representation of work extracts, with the exception of works created for teaching purposes, sheet music and works created for a digital publishing of a written document, for the sole purpose of illustration for teaching and scientific research, with the exception of any leisure and diverting activity for ends that are not commercial, on conditions that (i) the audience is composed on majority of students, pupils, teachers and researchers and (ii) rightholders receive fair compensation on a fixed price basis.

The exceptions and limitations shall only be applied (i) in certain special cases which (ii) do not conflict with a normal exploitation of the work or other subject-matter and (iii) do not unreasonably prejudice the legitimate interests of the right holder. This rule called the “three step test” is derived from the Bern Convention related to the reproduction right extended by ADPIC Agreement and WIPO Treaty and means that even though an exception is provided by the law, if the application of such exception conflicts with the normal exploitation of the work and does unreasonably prejudice the legitimate interests of the rightholder, this exception shall not be applied. This rule creates insecurity for the consumer who will never know if the exception shall be applied by the courts or not. This question was raised before the Constitutional Council, but this provision was not considered as anti-constitutional.

The French Supreme Court applied this rule before the implementation of the 2001 Directive in a decision dated 28 February 2006 . In this case brought before the court, a consumer had bought a DVD which could not be reproduced because of a technical measure embedded in the media and which prevented anyone from making a copy of the DVD. The consumer considered that he was deprived of his right to copy for private use. French Supreme Court has judged that “reproductions of protected works may be permitted, without express consent of author, in certain special cases, provided they do not conflict with a normal exploitation of the work, and do not unreasonably prejudice the legitimate interests of the author and take into account the economic impact that a copy can have, particularly in the context of the digital environment. Assessment of the "normal use" concept must judge the impact of copying on DVD sales and producers' right to amortise cinema production costs”.

(2) Protection of technological measures and rights-management information

The DADVSI Law provides for the implementation of effective technological measures in order to prevent or restrict acts, in respect of works, which are not authorised by the rightholder of the copyright or of any right related to copyright. Technological measures means any technology, device or component that, in normal course of works or other subject-matter, which are not authorised by the rightholder of any copyright or any right related to copyright. Technological measures are deemed effective where the use of a protected work or other subject-matter is controlled by the rightholder through application of an access control or protection process such as encryption, scrambling or other transformation of the work or other subject-matter or a copy control mechanism, which achieves the protection objective.

The contracts between authors and producers must specify the possibility of producers using technological measures or protection and rights-management information.

In this context, the DADVSI Law provides for the creation of a new independent regulation authority with respect to technological measures which aims to ensure that technological measures do not lead to deprive the consumer of the right to reproduce for private use. This creation has been recently announced for January 2007.

The authority determines in particular the minimum number of copies that may be made pursuant to the right to reproduce for private use.

The publishing, marketing, communication or advertising of software intended to enable the unlawful communication to public of protected works and the circumvention or neutralisation of technological measures are punished by criminal law.

The same type of sanctions are provided for rights-management information.

The Directive mentions only “adequate legal protection”. French Parliament has considered that only criminal sanctions may protect adequately technological measures.

(3) Interoperability

The implementation of the 2001 Directive and, in particular, of the provisions regarding the protection by technological measures have raised passionate debates in France regarding the notion of interoperability and the possibility of playing a work on various players.

In the 2001 Directive, it is only mentioned “in an increasingly networked environment, differences between technological measures could lead to an incompatibility of systems within the Community. Compatibility and interoperability of the different systems should be encouraged. It would be highly desirable to encourage the development of global systems” (Preamble no. 54).

No obligation regarding interoperability binds Member States in this Directive. But under pressure of consumers and users, the French Parliament has included a mechanism which tends to ensure interoperability, despite the fact that the Intellectual Property Code already includes provisions which intend to ensure interoperability between software programs.

First, it is expressly stipulated that such technological measures should not prevent effective implementation of interoperability in compliance with copyright.

Secondly, companies must disclose information essential to ensure such interoperability.

This above-mentioned new regulation authority shall ensure that because of their mutual incompatibility or their incapacity to interoperate, technological measures do not imply the use of a work, limitations additional or independent from those expressly decided by the rightholder of a copyright (except on a software), or a rightholder of a related right.

If no agreement is reached by both parties, this authority may enjoin a company to give access to information essential to ensure interoperability. In this case, the authority shall specify the conditions under which such access shall be given and the commitments that the claimant must respect in order to warrant the effectiveness and the integrity of the technological measures, with the conditions of use of the protected content as well.

If its injunction or the commitments taken are not respected, this authority may apply financial sanction up to 5% of the worldwide turnover for a company and €1.5 million in other cases.

The claimant who obtains access to information essential for interoperability is free to use this information. However, the rightholder of the technological measure may prevent the claimant from disclosing the source code and the technical documentation of its independent and interoperating software if such rightholder is able to prove that such disclosure would conflict with the security and effectiveness of such technological measure.

The decision of the French Constitutional Council has validated these provisions. However, the French Constitutional Council specifies in its decision that the said authority shall take into account the interests of the rightholder of technological measures together with the interests of the holders of related rights of the work protected by the technological measures. In addition, the Constitutional Council provides for the compensation of the rightholder if information essential to interoperability must be disclosed. In addition, the fact that only software publishers, technical systems manufacturers and services operators (and not consumers, consumer associations and rightholders) may go to the authority is not anti-constitutional, insofar as such recourse may lead to the disclosure of business secrets. The French Constitutional Council adds that consumers, consumer association and rightholders may bring their case before the courts.

On the opposite side, the French Constitutional Council has considered as anti-constitutional the non application of criminal sanctions in the event of infringement of technological measures of protection and rights-management information for interoperability purposes. The French Constitutional Council considered that insofar as interoperabitliy is not defined, it may be prejudicial to the principle pursuant to which each offence and each sanction must be clearly provided by a law.

(4) Duration of related rights

The duration of rights is fifty years from 1 January of the year following:

  • The year of the artists’ performance; however, if a recording of the performance has been made available to the public in hard copy or has been communicated to the public during the above-mentioned time period, the rights of the performer shall expire only fifty years after 1 January of the year following the first of these both events;

  • The year of the first release of the sound recording for the producers of phonograms; however, if a phonogram has been made available to the public in hard copy during the above-mentioned time period, the rights of the producer shall expire only fifty years after 1 January of the year following this event; If no publication has taken place, the said rights shall expire fifty years from 1 January of the year following the date of the first lawful communication to the public.

  • The year of the first release of the picture recording (with sound or not) for the producers of videograms; however, if a videogram has been made available to the public on hard copies or has been communicated to the public during the time period above mentioned, the patrimonial rights of the producer shall expire only fifty years after 1 January of the year following the first of these both events.

In practice, this text is difficult to understand, but above all, it is difficult to understand why performers do not have the same protection as producers of phonograms.

Conclusion

It is likely that reading this article will have convinced you of the complexity of the DADVSI Law. In this context, we are looking forward with interest to the application of this law by French Courts.