May 22 2006
Following a controversial six-month battle in Parliament, the Digital Copyright Law is finally close to being definitively adopted and incorporated into the IP Code. However, the legislative procedure (adoption by the deputies, then by the senators) has been something of a soap opera.
The government was late in implementing the EU Directive on Copyright and Related Rights in the Information Society (2001/29/EC) and originally pushed for the fast transposition of the directive by the assembly a few days before the Christmas break.
However, the assembly faced fierce criticism from a majority of deputies due to the controversial debate on peer-to-peer (P2P) copyright file sharing in France. The assembly surprisingly amended the bill and adopted two amendments legalizing P2P unlimited download for personal use against payment of a €7 licence fee.
As censorious voices from the music and film distribution community were heard, the government postponed the vote and redrafted the bill. Finally, the assembly passed the bill on March 21 2006 by a two-to-one margin after a second round of heated discussions.
The bill then came to the Senate, preceded by a report by the Senate's Cultural Affairs Commission, which appointed a reporter to review the gaps and inconsistencies of the first draft. After a quick three-day round, on May 11 2006 the Senate adopted a second draft, which confirmed some of the points adopted by the deputies (notably the repressive aspects). The law introduces penalties of €38 to €150 for illegal downloading and penalties of up to €300,000 for the distribution of hacking software.
However, the senators also amended some of the main controversial issues.
The provisions on private copying of the IP Code,(1) which provide for certain exceptions to the principles of copyright owners' rights (eg, copies or reproductions that are strictly reserved for the copier's private use), needed to be amended to take into account the possibility of digital breaches.
Under French law, the use of copyrighted contents or artistic works already disclosed by means of reproduction by copying cannot be considered illegal if it is strictly reserved for free private use (ie, in a family context) and the lost revenue is compensated. However, this exception under Article L122-5 of the IP Code - initially drafted in an 'analogue world' where the copying of copyrighted content was difficult - has become highly controversial as digital technology now allows unlimited and perfect reproductions.
After lengthy debates, the deputies finally confirmed the exception for private digital copying, but did not establish its limits. The bill first transferred this responsibility to a "college of mediators". However, the Senate has replaced the college with a dedicated regulatory authority in charge of technical protection measures. This independent authority, built on the model of other powerful French authorities (ie, Conseil Supérieur de l'Audiovisuel and Autorité de Régulation des Communications Electroniques et des Postes for television and the Internet, respectively), would have wider competences and fix a 'gold number' of authorized copies for each kind of exploitation right. However, the latter is still uncertain: it seems that the French would reject the possibility of DVD copying because of the state of the market.
The second main issue of the bill was the recognition of technical protection measures in the French legal framework under Article L331-5 of the IP Code.
The law legitimizes technical protection measures, which provide effective protection for copyrighted contents and artistic works, as these measures "prevent or limit unauthorized uses". As consumer and authors' rights associations demanded that these measures apply only if they are compatible with the private copying exception and do not cause undue prejudice to rights holders, the bill voted by the deputies first imposed the rule of interoperability, which was intended to solve the problem of reading downloaded copyrighted content on various supports. Between the two votes, the minister of culture (the author of the bill) pleaded strongly for strict application of this rule, in order to force companies such as Apple or Microsoft to share their copy-protection technologies to offer wider choice to consumers.
However, the proposed redraft by the Cultural Affairs Commission reduced the level of interoperability considerably. Finally, after a heated vote, the senators simply removed interoperability from the bill and transferred it to the regulatory authority for technical protection measures. The authority's role will be to ensure that music or videos bought from online services can be played on any other device; only companies (not consumers) will be authorized to ask for interoperability.
As dissensions still persist, the bill must now be passed by the Joint Committee. The committee - composed of seven members and seven alternates from each assembly - is tasked with seeking an agreement on the text and with proposing, where possible, a joint text on the provisions still under discussion.
The committee seeks a common solution for each clause still under discussion, which may be the view adopted by one of the assemblies. When no common solution is found for one of the provisions, disagreement is noted, as well as the failure of the joint committee to reach agreement. Finally, if the committee fails to reach agreement, the government can order another reading by each assembly and, ultimately, may ask the National Assembly to make the final decision. Therefore, the story does not end here.
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