Euro-copyrights.org, January 30, 2004
Anne-Catherine LORRAIN & Thierry MAILLARD
First publication : January 2004.
The European Union Copyright Directive (EUCD) has not been implemented in France yet. A bill was introduced by the Ministry of Culture in Parliament on November 12, 2003. The examination of the Bill by the Parliament, lately scheduled in the beginning of June, then in mid July, is postponed to the next session of Parliament, at the soonest in October (2005).
The protection of technical measures is provided under new provisions introduced in Book III, Title III (Procedure and Sanctions) of the French Copyright Act ("Code de la Propriété Intellectuelle"). In accordance with the Directive, effective technical measures shall be protected against both the act of damaging technical measures and the preparatory activities to this act. In keeping with the French traditional approach to copyright law, this bill, very firm and cautious, definitely favours rightholders.
2. Definition of Technological Measures
The drafters of the bill, probably concerned about being exhaustive, had initially chosen to define technical measures as "any technology, product, equipment, device, service or means" blocking unauthorized uses. This enumeration was not useful. Fortunately, it has not been maintained in the actual draft.
Under new article L. 331-5, protected technical measures are :
• technologies, devices or components which,
• in the normal course of their operation,
• prevent or restrict uses,
• in respect of works, performances, phonograms, videograms and broadcasting programs,
• which are not authorized by the holder of a copyright or neighboring rights.
The bill does not restrict the scope of the protection of technical measures to copyright and neighboring rights. The new provisions apply to technical measures blocking the reproduction or communication, but also to the measures preventing or restricting any act (e.g. accessing a work) which is not authorized by rightholders. Thus, users won’t be allowed to circumvent technical measures even if they are the legitimate beneficiaries of copyright exceptions. Conversely, it may not be unlawful – at least under those provisions – to circumvent a technical measure protecting non-copyrightable material (e.g. a work which has fallen into the public domain).
Only "effective" technical measures shall be protected. The bill states that technical measures shall be deemed effective where the use of a protected material is controlled through application of an access control or protection process, such as encryption, scrambling or other transformation of this protected material or a copy control mechanism which achieves the protection objective. The wording is the same as the one provided in the EUCD. However, unlike the Directive, the bill does not require technical measures to be controlled by rightholders.
Neither the bill nor the explanatory memorandum clarifies the notion of effectiveness. This lack of precision is probably deliberate. The French copyright law already entrust the judge with the construction of many vague concepts to ensure the flexibility and adaptability of the system. It seems that the drafters of the bill endeavored to remain as vague as possible to leave room for adjustments.
4. Restricted Acts, Sanctions and Remedies
Damaging a technical measure
The bill states that it is a copyright infringement to knowingly damage a technical measure while aiming at altering the protection provided by this measure. The drafters of the bill preferred the word "damaging" ("porter atteinte") to the word "circumventing", probably due to the will of reusing the wording of pre-existing articles 323-1 and following of the French criminal law dealing with "Unauthorised Access to Automated Data Processing Systems". However, this choice is critical since "damaging" and "circumventing" do not seem to be equivalent notions.
The bill also assimilates to copyright infringement the following acts :
• knowingly manufacturing or importing any technological application, device or component intended to facilitate or enable the act of damaging a technical measure, or providing a service intended to facilitate or enable this act (art. L. 335-4-2 2°);
• knowingly retaining for sale, lending or rental, offering for sale, lending or rental, making available in any form any technological application, device or component, or providing a service intended to facilitate or enable the act of damaging a technical measure (art. L. 335-4-2 3°);
• knowingly ordering, designing, organizing, reproducing, distributing or diffusing an advertisement, or making known, directly or indirectly, any technological application, device, component or service intended to facilitate or enable, totally or partly, one of the acts mentioned under 1° or 2° (art. L. 335-4-2 4°).
The bill does not reuse the structure of article 6(2) of the EUCD nor its exact wording. The prohibited activities are gathered into categories corresponding to the subsequent phases of the exploitation process, which is certainly clearer than the formulation of the Directive. In spite of this change of wording, it seems that all the elements of article 6(2) of the EUCD are – more or less explicitly – present in the proposed implementation. The bill even goes further, by giving a very comprehensive definition of the prohibited activities. For instance, it mentions the simple act of "making known" a circumvention device, which is very broad. Thus, the French implementation appears highly protective of rightholders’ interests. Here again, this reveals the cautiousness of the drafters of the bill faced with the question of technical measures.
5. Exemptions and Exemption Procedure
Before the actual bill was drafted, the implementation of Article 6(4) § 1 of the EUCD did not seem necessary. Indeed, the only exemption already existing in French copyright law that had to be granted under Article 6(4) § 1, i.e. the exemption for public security purposes (Article 5(3)(e) of the EUCD), was not expected to raise any difficulties. Nevertheless, as a new exemption for the benefit of disabled people, provided by Article 6(4) § 1, was introduced in the French bill, the legislator had to ensure that the beneficiaries of the exemption can use material to which technological measures are applied in accordance with the exemption.
The newly introduced Article L. 331-6 of the French copyright law implements the provisions of Article 6(4) of the EUCD : rightholders shall take, within a reasonable amount of time, measures ensuring the effective benefit from the private copying exemption and from the exemption for disabled people concerning copyright and neighboring rights, where the beneficiaries of these exemptions have legal access to the protected work or subject-matter concerned.
In accordance with the EUCD, the bill allows rightholders to take measures restricting the number of reproductions. Rightholders do not have to take measures ensuring the benefit from the exemptions where the protected works or subject-matters are made available to the public on agreed contractual terms on on-demand services, as it is provided in the EUCD.
The specificity of the French bill lies in the creation of a specific entity responsible for the settlement of litigations regarding the implementation of Article L. 331-6. A conciliation procedure is created concerning the exercise of the exemptions concerned involving a technical protection measure.
This new organ is named the "Mediators Board" ("Collège de médiateurs"). The board can be seized only on demand, by a beneficiary of the exemptions concerned or by an organization representing him/her (for instance, a consumers' organization). It has an exclusive competence on that type of litigation.
• The composition of the Board :
The board is composed in such a way that the independence of its members shall be guaranteed. It is composed of three members : two mediators are nominated among magistrates or civil servants who then designate the third member.
• The double function of the Board :
The role of the board consists both of ensuring the conciliation between the rightholders and the beneficiaries of exemptions and, in case no agreement can be reached, of holding a decision having a mandatory effect. That decision can be appealed at the Paris Court of Appeals.
The functioning conditions of the board will be examined in a future decree. In this context of uncertainty as regard to the functioning of this board, the French legislator showed his cautiousness to the benefit of rightholders.
The role of the board will be of a great importance because it will be led to examine the three steps' test governing the exercise of exemptions, integrated in the French bill in accordance with Article 5(5) of the EUCD. Will this examination require a new definition of the balance of interests between rightholders and beneficiaries of exemptions?
The establishment of this board avoids the disadvantages which may have been encountered if the cases should have been brought in front of the judges, already overwhelmed by litigations of all natures and whose competence regarding technical measures is not good enough today.
6. Neighboring Rights & Database Rights
The provisions of the bill on the protection of technical measures regarding copyright are similar to those concerning neighboring rights and database rights.
7. Technological Protection of Software
The provisions of the bill do not apply to the technological protection of software products. Therefore, technical measures applied to software applications are protected by a different regime than those applied to protected works or other subject-matter.
The technical protection of computer programs is covered by Article L. 122-6-2 of the French Copyright Act, implementing Article 7(1)(c) of the 1991 EU Software Directive forbidding acts concerning means which facilitate circumvention. The provision requires that a publication or user's handbook relating to circumvention devices must state that any infringing use of these devices is liable to the penalties provided for infringement.
Thus, circumvention itself is not covered. Moreover, any means enabling to circumvent the technical protection of a computer program is legal where the consumer is properly informed that some uses of the product are prohibited. The lack of such information may be punished with a fine amounting to 450 Euros. Pursuant to articel L. 122-6-2, the penalty provided for the prohibited acts mentioned above is criminal.
Up to now, no judicial decision has been pronounced on the basis of Article L. 122-6-2. The only cases concerning the technical protection of computer programs were ruled on the basis of unfair competition law or of complicity for the furnishing of instructions and means.
The different regimes for software protection and for other types of works may raise difficulties. For instance, there is no certainty regarding the proper qualification of videogames and multimedia works containing both software and artistic elements.
8. Miscellaneous & Controversial Subjects
Private Copying and Technical Measures
The private copying exemption provided by the French copyright law gives rise to the collection of a levy to compensate the financial loss of rightholders (authors, editors, performers and producers) on works fixed on any carrier (phonograms, videograms and any other carrier). With the establishment and protection of technical measures arise the contestations of those asserting that the levy system no longer is justified where the copying possibilities are altered or diminished. French rightholders cannot avoid the controversy.
A specific commission sets the amounts and modalities of payment of the private copying levies owed by the manufacturers and importers of the devices concerned. This commission recently extended the collection of the remuneration to all digital recording devices. The amounts of the levies are the following :
• on Minidiscs : 0,4573 Euro per hour ;
• on audio CDR and CDR-RW : 0,4573 Euro per hour ;
• on video DVD-R and DVD-RW : 1,2577 Euro per hour ;
• on data CDR and CDR-RW : 50,43 Euros per 100 Go ;
• on data DVD-Ram, DVD-R and DVD-RW : 33,80 Euros per 100 Go ;
• on DVHS : 1,2577 Euro per hour ;
• on audio amovible memories : 1,05 Euro per 100 Mo ;
• on MP3 recording players (integrated to the devices) : 1,05 Euros per 100 Mo
The commission also decided to collect the private copying remuneration on other digital devices: on hard disks which are integrated in television sets or in video recorders, on television decoders which have a digital recording capacity and on hard disks which are integrated to players or to home devices that are dedicated to play works fixed on phonograms (from 8 to 20 Euros for a recording capacity of 5 to 40 Go). Floppy disks (1,44 Mo) are subject to a levy amounting to 0,015 Euro.
With respect to technical protection measures, French courts have, until today, only ruled on measures installed on music-CDs. The first decision concerns the legal action brought by one of the French consumers' organization (CLCV) against EMI Music France regarding a CD which could not be played on certain devices and, notably, on a car player (Tribunal de Grande Instance de Nanterre, June 24, 2003). The label was condemned by the court for deception on the capabilities of its products, on the basis of commercial law. The court ruled that the installation of an anti-copying measure is a restriction to the consumer's usage right and that the partial announcement about the presence of this measure on the packaging deceives the consumer., The court ordered the label to add to the warning already figuring on the CD concerned ("This CD contains a technical measure restricting copying possibilities") the following sentence: "Beware, this CD cannot be played on any device or car player".
In another case where a consumer sued EMI Music France because a CD could not be played on a car player, the label was found to have violated the law as well, this because the product had a hidden defect. The record label had to reimburse the consumer for the price of the CD (Tribunal de Grande Instance de Nanterre, September 2, 2003). However, although the defect of use of the CD was recognized by the court, no direct link with the technical measure was established. Moreover, the consumer's demand to forbid the commercialization of the CD and the use of technical measures was rejected by the court.
The prohibition of circumventing technical measures could impede third-parties from developing products that are compatible with technologically protected systems or formats. For instance, a programmer wanting to develop a software application which is compatible with Microsoft’s WMA or Adobe’s PDF formats may have to reverse engineer the technological measures applied to those formats in order to determine the specifications of them. However, reverse engineering could be unlawful under the new provisions. For this reason, the proponents of the Free Software movement (notably www.EUCD.info) have actively battled to insert in the bill a sort of general exemption for interoperability purposes. Although the drafters of the bill dismissed this proposal, they did take into account the interoperability issue by establishing a compulsory licence scheme.
The bill provides that development licences for technical measures shall be granted on equitable and non-discriminatory conditions to systems manufacturers or to service providers who intend to achieve interoperability. This should promote the opening up of proprietary systems and should contribute to the necessary standardization of technological measures. The bill also takes the rightholders' interests into account, since it specifies that the licensees have to respect conditions which ensure the system's security. This shouldn’t satisfy the Free Software movement, since, development licences will frequently impose the inaccessibility of source code to end users, which complies with equitable and non-discriminatory conditions.
Research into cryptography
The bill evades the fundamental issue of research into cryptography. Only the explanatory memorandum mentions it in a laconic sentence: "the draft bill […] should not hinder scientific research in the field of cryptography". Here again, it seems that the drafters preferred not to use uncontrollable processes, waiting for concrete difficulties to arise before intervening. Although understandable, this overcautious approach is definitely worrying for scientific research.
The bill introduces two new exemptions to copyright and related rights modifying the Act on legal deposit (1992). The newly introduced articles 6-1 to 6-3 allow repositories to enable:
• consultation of the protected materials on their premises,
• by duly accredited researchers,
• from individual computer terminals.
The bill also authorizes repositories:
• to reproduce protected materials on any medium and by any process,
• where it is necessary for collection, storage and consultation on site.
This last exception regards the case defined in article 5(3)(n) of the Directive, which is one of the exemptions which exercise has to be granted under article 6(4) §1. However, the bill does not introduce an obligation for rightholders to facilitate the exempted act. The drafters of the bill apparently expect that no difficulties will arise from that exemption and that, anyway, specific solutions (including restraining measures and penalties) can always be used in practice, without having recourse to the process provided in article 6(4). It seems, however, that the EUCD does not allow such an approach. This could raise many difficulties in the future.