After difficult debates and several new developments in the legislative process, the bill implementing the European Directive on copyright and the information society has been adopted by the National Assembly on March 21, 2006. It was submitted to the Senate for a global vote in May.
This bill, addressing sensitive issues of law linked to very substantial business interests, reaffirms certain basic principles that are criticized by part of the opinion, such as consumer associations, and to some extent by certain players on the business scene.
These re-affirmed basic principles have been materialized in the bill by a series of provisions in four different areas discussed below.
Finally, all exceptions to the author’s rights may not conflict with a normal exploitation of the work nor cause an unjustified prejudice to the legitimate interest of the author (implementation of the triple steps test also provided by the WIPO Copyright Treaty of 1996 and the 2001 Directive).
This limitation will certainly have an impact on the issue relating to the possibility to limit or prevent the copy of a DVD/CD (several famous and contradictory recent cases in France), in light of a recent decision of February 28, 2006 of the French supreme Court, which considered that a copy of a DVD can be harmful to the “normal exploitation” of the work.
2 - The withdrawal of the global license
After surging debates the National Assembly rejected the amendments aiming at legalizing peer to peer downloading as a principle, thereby refusing to consider that this practice constitutes a legitimate private copy, an exception to the author’s exclusive rights. As a result, the system of the global license was abandoned.
3 - The legalization of technological protection measures in the respect of the interoperability
The bill legalizes the effective copy control devices defined as any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict uses, which are not authorized by the right-holder of any copyright or any right related to copyright.
However, the copy control devices cannot prevent the effective interoperability, in compliance with the authors’ rights. Therefore the bill provides that the providers of copy control devices must allow the access to the information necessary to interoperability.
But, how companies very critical of the bill, such as Apple (iTunes uses technological measures of protection only compatible with the Apple devices) or Microsoft (famous publisher of DRMs, which are used by most of legal downloading web sites), will react ?
4 - The sanctions in case of violation of copy control devices
The bill provides for sanctions in case of violations of copy control devices.
For instance, concerning the editors of peer to peer software programs. The infringement, defined as “to edit, place at public disposal or communicate to the public, voluntary and under any forms, a means destined to place non-authorized works at the disposal of the public”, is punished by up to three years imprisonment and a fine up to 300,000 euros.
5 - The sanctions of the reproduction, for personal purposes, of protected works
The downloading and the placement at the public’s disposal of files protected by copyright are considered as a misdemeanor, but the sanctions will be specified in a decree. However, the Culture Secretary has already stated that the fines will amount to 38 euros for the downloading and 150 euros for the placement at the public’s disposal.
This decision has been criticized by the opponents of the bill, and notably by the supporters of the global license. According to them, these fines, not only do not settle the problem of illegal downloading, but they also prevent the authors from receiving royalties for the downloading of their works (the money is received by the French Government).
