Copyright Protection – Regulatory Authority for Technical Measures rules published

04 June 2007

Jeanne Méhaud

The long-awaited decree setting out the organisational and procedural rules of the Regulatory Authority for Technical Measures (RATM) was issued on 4 April 2007. The RATM, established under the 2006 French law on Authors' rights and related rights in the digital society, has the power to decide cases where (a) copyright holders are claimed to be using technical means (such as digital rights management (“DRM”)) to prevent permitted use of content, including private copying, or (b) the suppliers of technical means of protection are refusing to allow other suppliers access to interoperability information.

The RATM is an independent administrative authority established to ensure that systems containing technical measures of protection, including DRM, do not limit the use of artistic works more than strictly necessary to protect copyright holders. The RATM must also submit to the Government and the Parliament a yearly report on the main developments with respect to technical measures of protection and their potential impact on the availability of cultural content.

The RATM has 6 members each appointed for 6 years. The first set of members appointed are drawn from the following independent French bodies: the Administrative Supreme Court, the Civil Supreme Court, the Government Accounting Office, the Superior Council of Intellectual Property, the ITC Commission of the Academy of Technologies and the Commission for Private Copy Levies.

The application decree n°2007-510 issued on 4 April 2007 sets out the organisational rules of the RATM. It also defines the general procedural rules governing claims that will be submitted to the RATM, as well as more specific procedural rules, where the claim relates to: (i) the interoperability of technical measures of protection, or (ii) the exceptions to copyright and related rights.

Proceedings relating to the exceptions to French copyright and related rights

French law provides exceptions to copyright protection allowing private copying, copying for the benefit of handicapped persons, copying for storage purposes and copying for pedagogic purposes. Any DRM or other technical means of protection must allow for these exceptions

Any person who benefits from one of these exceptions or any registered consumer body or legal entity having obtained the prior assent of the French Ministry for the Arts, is entitled to bring a case before the RATM if they believe the use of copyright content in accordance with these exceptions is being prevented through the use of technical measures.

If the parties fail to reach an amicable resolution of their dispute, they will be heard by the RATM, who will either reject the claim, or grant an injunction prescribing the measures that will guarantee to the claimant the actual benefit of the exception to the rights of the copyright holder. This injunction will set out the conditions under which this exception may be exercised and notably the minimum number of authorised copies for private copying purposes, according to the kind of protected artistic work, the various means of communication to the public and the opportunities provided by the available techniques of protection.

The RATM may also issue a penalty – the amount and date of effect of which will be at the discretion of the RATM.

Proceedings relating to interoperability of technical measures of protection

In cases where the access to interoperability information has been refused by a supplier of technical measures of protection, only software publishers, manufacturers of technical systems and service providers are entitled to initiate such proceedings before the RATM.

The President of the RATM may consult the French Competition Regulation Authority to have its opinion before rendering its decision.

The RATM will either reject the claim, or order the supplier of the technical measures of protection to take any necessary steps to ensure that the claimant can access the information required. In such a case, the RATM will define the conditions under which access to this interoperability information will be provided: duration and scope of the obligation, compensation to be paid to the copyright holder if any has been legitimately claimed, commitments to be complied with by the claimant to ensure the efficiency and integrity of the technical measures of protection, as well as the conditions in which the protected content will be used and accessed.

The RATM may also issue a penalty – the amount and date of effect of which will be at the discretion of the RATM.

The RATM can also impose a penalty on the supplier of the technical means of protection if it fails to comply with either its undertakings under the conciliation statement or the terms of the injunction. According to article L.331-7 of the DADVSI Law, the amount of this fine shall take account of the following criteria: the impact of the damage caused to the parties concerned, the situation in which the body or business subject to this fine is placed and the potential reiteration of practices that are against interoperability. The assessment of fines shall be carried out on an individual basis and any fine cannot exceed 5% of the company’s global turn-over (VAT excluded). In order for the amount of such fine to be assessed by the RATM, either the holder of the rights on the technical measure of protection concerned or the claimant may be requested to provide the RATM with the amounts of turn-over that are necessary to calculate the threshold of the sanction.

General rules applying to any proceedings before the RATM

In all proceedings before the RATM, an amicable resolution of the dispute will be encouraged, as the RATM has an obligation to bring the parties together so that they attempt to reach a settlement.

The Decree provides for detailed rules designed to guarantee the confidentiality of information and documents that any party may consider as constituting a secret protected by law (as part of their trade secret for instance). In such a case, this party may also refer to the RATM those businesses against which such confidentiality shall be enforced.

Pursuant to the DADVSI Law, the RATM shall render its decision within two months of the submission of the case to the RATM. Decisions of the RATM will be made available to the public, most notably through the Official bulletin of the French Ministry of Arts (“bulletin official du ministère de la culture et de la communication”). However, such a publication may be restricted in cases implying confidential information.

The RATM may decide to place the burden of the costs of proceedings on the losing party. A decision of the RATM may be appealed to the Paris Court of Appeal within one month.

Conclusion

As far as interoperability is concerned, allowing software publishers, manufacturers of technical systems and service providers to initiate proceedings before this new authority provides them with a new means to obtain essential information for interoperability purposes, which is even wider than the right to decompile, as the RATM may grant them the right to obtain the source code as well as the technical documentation of the software concerned. In the meantime, this undoubtedly creates a new limitation to the rights of copyrights holders.

The role of this brand-new authority with respect to interoperability issues has been subjected to criticism, notably by French consumer bodies, because of the limited categories of persons and entities that are granted the right to initiate such proceedings. Its authority is all the more disputed by reason of the recent undertakings expressed by participants in the digital music sector (especially EMI) who are now showing their willingness to move away from DRM protection.