The “DADVSI CODE” : The mystery of the author’s right bill is to be over
The European Union has signed the 2 treaties – already transposed by the USA in 1998 – and included them in the European Directive No. 2001/29 which had to be transposed in each member state before December 22, 2002.
France was late to transpose, and has been condemned in April 2005 for its delay, but finally recently held the case. After many political facings and tricks, the final text has now been seen and voted by both the French National Assembly and the Senate, and is about to be set up. The last step being a final examination of the law by a Commission composed of Senators and Deputies.
Most people know about the main and more controversial questions (1), as for example the technical measures of protection, the graduate punishment, the foreseen but abandoned global license, and so on, but many other topics were submitted (2) and less covered by the media.
1. The over-discussed measures finally set up
One of the most unpopular anddiscussed but finally accepted changes introduced by the bill is relative to bringing legitimacy for producers to use technical protection measures (named DRM for digital rights management) on the supports.
The text is completed by a definition of the aim of DRM, i.e. to hinder or limit the non authorized use of the copyright or neighbouring rights linked to an artistic work by its owner, and a proper definition of a DRM, i.e. : every technology, disposal, component that, in its normal use, responds to the afore-said function.
Some examples are given like access codes, anti-copy mechanisms, encoding, watermarking, etc.
A system of graduate repressive penalties is sanctioning the cracking of the DRM : a 750 euros penalty for someone detaining a cracking software, 3750 euros penalty for a person who would on his own, neutralize, crack, or suppress such a mechanism, and 30 000 euros of penalty and six months
of imprisonment for the proposal or promoting of cracking systems.
The rougher opponents to the draft in France were raising the point that those measures could bring an attempt to civil and personal liberties and unfairly limitthe use of legally acquired author’s rights.
Moreover, some DRM like SONY’s ones for example have already been denounced, as they install a rootkit system which is an open door to virus.
Nevertheless, this provision has been tempered by the National Assemblyand the Senate by some limits:
-Those measures should not attempt to disposals relative to the liberty of communication
-The Senate added a prior necessary control of any system or software allowing to supervise sent, treated or received data by the National Commission for data processing and Liberties.
-The National Assembly and the Senate (but in a lightest way), obliged the producers to respect the principle of interoperability, i.e. to allow consumers to read music or video legally bought on every support and vice versa.
This last point led in the United States to an overreaction of Apple’s representatives, as their exclusive corresponding system iPod® / iTunes® would be condemned by this principle. In their last interviews, Apple® could even come to close the French iTunes ® Music Store.
One other big issue debated and finally set up by the draft is the fate of peer-topeer.
It has been decided to implement here again a graduate penalties system: the internet user who downloads illegally for his personal use would be condemned to a fine amount of which is to be fixed by a decree, but which should not exceed 38 euros. For providing files on the Internet, the fine would be of 150 euros, and for editors of software used for illegal downloading, the amount would be of 300 000 euros and a prison sentence of 3 years.
At least, the draft institutes 4 new exceptions to the ” patrimonial ” rights (as opposed to moral rights) of the author, which are:
-Temporary reproductions permitting transmission of the work arts on the Internet
-Reproductions and representations done by legal persons for the benefit of handicapped people
-Specific reproductions of the libraries, museums, or record Offices
-Press reproductions of architectural or plastic art with information aim
The bill is also transposing the “3 steps test” mentioned in the Directive, which submits those exceptions to 3 conditions: they must constitute a “special case”, neither attempt to the normal exploitation of the work art, nor cause an unjustified damage to the rightful interests of the rights’ owners.
But many other less known or discussed matters were settled by the draft.
2. The minor discussed issues
The whole second title of the draft is relative to the authors’ rights of public agents and sometimes includes some important but unnoticed changes. For example, article 17 of the bill imposes to the author, public agent, to abdicate his right to choose the disclosure of his work art as well as his right of remorse and withdrawal in favor of the administration he is working for.
Moreover, his right on respect of his identity and work is lightened as he cannot oppose any more to the modification of his work of art when it is decided in the interest of the service by the hierarchic authority, unless this modification affects his honor or reputation.
An exception to that new rule has been voted with regards to professors and research workers whose work divulgation is not submitted to any prior control of a hierarchic authority. The author working as a public agent automatically assigns to the administration his exploitation rights on a work of art created during his functions and with the limit that this is necessary to the achievement of a mission of public utility
We can wonder about the validity and necessity of those very restrictive measures, especially considering that they were not imposed by the initial text of the Directive.
Another big change included into article 1, is that the author is free to choose the earnings and diffusion modes of his work of art. This point, adopted without any real debate, was presented as an alternative to the two options existing: the payment of each unit (a song for example) or the license fee system (payment of a fixed monthly sum as a counterpart for Internet users to the possibility to download unlimited music for example).
But, as it was pointed out by several specialists, as for example Me Agnès Tricoire1 (lawyer in Court), this measure is contrary to the principle of law and order enounced in article L131-4 of the French Code of Intellectual Property which is the rule of the proportional remuneration. At least, some articles of the bill also create a right of pursuit for any author belonging to the European Union, and introduce the principle of the rights exhaustion for work arts material supports in the EU.
If the law is about to be set up, we can surely affirm that it does not settle all the issues raised by all the concerned parties: majors, artists, consumers, public agents … The bill, with its remaining imprecision will have to be highly interpreted by the French Courts and will certainly grow up the number of litigations arising in the digital environment.