La Revue Squire

The DADVSI legislation: a difficult conciliation between France’s “private use exemption” and the protection of authors in the digital world


Rédigé par Owen TAYLOR & Fleur ALLAIN le 19 Décembre 2006


Droit d’auteur

French droit d’auteur is essentially based on the idea that an author has the exclusive right to authorise or forbid the publication of its work in any media form. The author must authorise the reproduction of a “work of mind” (“oeuvre de l’esprit”) if it is protected by copyright. Nevertheless, the French Intellectual Property Code provides a limited number of exceptions to this principle. One of these allows the public to freely copy protected work for their own personal enjoyment or even that of their family and close friends (“cercle de famille”). This is known as the “private use” exemption (“exception de copie privée”).

The French Parliament was aware that policing private copies of such works would be impossible and chose instead to focus on commercial copying – far more damaging to a given industry.

The exception has been the object of concern for the creators of works for some time now. Some have argued that it is outdated, as copying has become much easier since the time when the exception was introduced in 1957. However, as technology developed throughout the 1970’s and beyond the French legislature chose not to modify the law.

Fair compensation

By way of compensation for work creators, in 1985 France also introduced a system whereby a fee is charged on blank media storage device to counter the losses incurred through the creation of private copies. The amount of the fee is fixed by a commission and is distributed amongst authors, music performers and producers and other entities. The fee itself has raised a number of questions. Evidently, it is not just individuals that buy data storage media but also professional organisations that do not use CD’s or DVD’s to make copies of music and films, such as hospitals and schools. With the development of digital storage, the fee now covers MP3 players, USB keys and other such media, other than computer hard drives.



The private use exemption has survived various technological revolutions. However, the introduction of peer-to-peer technology and the rise in popularity of file sharing has brought this issue back into the spotlight.

Peer-to-peer technology

France’s Intellectual Property Code renders copyright infringement both a civil and a criminal offence. With the development of peer-to-peer technology, France has witnessed a rise in the number of criminal claims by rights holders against those choosing to share protected works such as music or films. The French courts have seemed quite willing to hand out hefty fines. However, the private use exemption has often been pleaded as a defence and in response to this the French courts have offered mixed replies. Works shared by way of peer-to-peer technology were being used in a non-commercial way and were being recorded onto CD’s or other media devices, for which fair compensation had been paid. However, the exemption has generally not been applied for two reasons. Firstly, there is no legal access to the work. Nothing is paid to the creator for the original release of the work. Secondly, as files are ‘swapped’, users are in fact sharing part of their hard drive as files are in turn uploaded and downloaded. It is this uploading that has meant that the private use exemption is not applicable, as the user does not select the recipients (i.e. not just close friends and family). Yet, peer-to-peer file sharing remains hugely popular in France.

The DADVSI directive

Following condemnation by EU authorities, on 1 August 2006 France finally transposed the EU Directive on the harmonisation of certain aspects of copyright and related rights in the information society. The Government also seized this opportunity to find a comprehensive solution to the widespread use of peer-to-peer technology. The proposed DADVSI legislation was extensively debated in each of France’s legislative chambers, the Senate and the National Assembly, which remained divided on a number of issues.

The main debates centred around the idea of a global licence and the interoperability of digital media (i.e. the freedom to use protected media on different formats and through any system). The global licence proposed to legalise the reproduction of copyrighted works regardless of whether rights holders have consented, provided fair compensation is paid to the relevant rights holder. Again, faced with the almost impossible task of policing copying, the French Parliament, against the Government’s will, was attempting to set up a compensatory regime to benefit creators. However, lobbying from authors and performers helped the Government to remove the global license from the draft legislation and to introduce instead a system of fines to punish file sharing.

Interoperability

The most controversial measure debated in Parliament involved the interoperability of digital works and a media distributor’s protection of the works. One concern relating to DADVSI was its sweeping criminalisation of copy protection. With penalties of up to €300,000 and/or three years in prison, the effect on France’s software industry could have been extreme. In light of these concerns, the National Assembly passed, by 296 votes to 193, a statutory instrument making interoperability mandatory. The MPs argued that an Internet user who had legally obtained an on-line piece of music should be able to use it on any system. The French Culture Minister assured that “interoperability does not back piracy” and that “if an Internet user is willing to pay for music, it is understandable that he can listen to this music without being held prisoner by one sole system that belongs to the product range of one company”. This would in turn mean that music providers would be bound to open up their Digital Rights Management (DRM) software.

State-sponsored piracy

Naturally, the biggest opponents to the bill proposed by the National Assembly were the online music providers. Apple in particular had the Internet buzzing with rumours that it was set to abandon the French market. The music industry and its software allies have always campaigned for the outlawing of DRM cracking and for labelling downloaders as thieves. Consumers on the other hand see it as unfair that they are unable to listen to purchased music on every device they own. Libraries are also concerned that DRM’s will render them obsolete as they are prevented from lending contents to users. Campaign groups such as the Free Software Foundation were swift to lobby both in Brussels and then in Paris for legislation imposing an obligation on companies to disclose their pass codes to allow for the free transfer of downloads.

The French Parliament’s main justification seemed to lie in the fact that it was opening up the market to competitors. iTunes accounts for more than 70% of paid digital downloads in some countries, having sold more than a billion songs since it was set up three years ago. The French Parliament was therefore attempting to keep the market free and open instead of enforcing artificial monopolies under which vendors control their clients and thereby exclude competition; driving innovation and pushing companies to create new products to remain ahead of the market. MPs were also of the opinion that interoperability may discourage the use of peer-to-peer technology, which can be freely interchanged between different music players and onto different formats.

Apple, in a statement, labelled the draft DADVSI legislation as “State-sponsored piracy”. It stated: “If this happens, legal music sales will plummet just when legitimate alternatives to piracy are winning over customers” (http://news.bbc.co.uk/go/pr/-1/hi/technology/4833010.stm) . However, it has acknowledged that the law may help increase sales of its popular iPod music player stating “iPod sales will likely increase as users freely load their iPods with “interoperable” music which cannot be adequately protected. Free movies for iPods should not be far behind in what will rapidly become a state-sponsored culture of piracy”. However, Steve Jobs (Apple Chief Executive) was previously quoted as stating that, “if you legally acquire music, you need to have the right to manage it on all other devices that you own” (http://www.siliconvalleysleuth.com/2006/03/calling_apples_.htm) . Indeed, with a forecasted increase in iPod sales, the removal of DRM may actually be in Apple’s interests. In fact, it may be the music industry itself that is set to suffer. Apple may no longer be able to offer the copying protection that the music industry might demand as a guarantee before signing a deal with iTunes. However, Apple’s inability to offer this may have just been brought about by the French Parliament. Apple may have been crying but perhaps these were crocodile tears.

The Senate’s conciliation

Following consumer and industry lobbying, the draft piece of legislation was amended by the Senate by the creation of an administrative authority whose task is to monitor interoperability and the copying of protected works. Furthermore, the Senate limited the interoperability amendment so that DRM producers are only obliged to provide their security source codes to service providers, computer program publishers and software developers, rather than anybody who requests them.

The bill was then sent to a Mixed Parliamentary Committee, where a final version was approved, confirming interoperability along with the setting up of the administrative authority proposed by the Senate. This statute has also now introduced a gradual penalty system ranging from €38 for illegal downloading to 3 years’ imprisonment and a €300,000 fine for those who market software designed for copyright piracy. Despite these changes in relation to peer-to-peer penalties, the private copy exemption has been confirmed nonetheless.

Despite these amendments as compared with the original draft proposed by the National Assembly, Apple stated prior to the legislation’s passing that even a less severe final version would continue to show France’s complete indifference with regards to intellectual property (Les Echos “Droits d’auteur: adoption définitive de la loi au Parlement” – 03/07/06.).

DADVSI is certain to have a significant effect on French society and its economy. The legislative debate has come to a close and it remains for the French courtrooms to take on the controversy surrounding this piece of legislation.





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