March 17 2003
The French private copying provisions have been amended to take into account the medium of digital recording.
Copyright owners are compensated for lost revenue caused by the right of private copying under the Intellectual Property Code. Articles L 311(1) and L 311(4) of the code provide that remuneration for private copying must be paid to copyright owners in relation to any reproductions of videograms or phonograms.
Article L 311(1) of the code, which was amended on July 17 2001, provides that remuneration for private copying must be granted to copyright owners in relation to any reproduction of works made on digital recording media.
Nevertheless, as the exception for private copying does not apply to software under Article L122 (5)(2) of the code, software owners are excluded from remuneration for private copying.
The EU Directive on Copyrights and Related Rights in the Information Society (May 22 2001) enables copyright owners to set up devices, mechanisms or systems designed to protect works from unauthorized use (although software is exempted from this protection).
The private copying exception is controversial in the digital age. The exception was initially justified because it was impossible to control the use of copyright-protected work. However, with the development of new technology it is now possible to prevent the reproduction of works made on digital recording media. Therefore, new justifications are now claimed for legitimizing private copying - namely, freedom of expression and access to culture and information.
The legal issue is whether the exception for private copying is based on an exception to the author's right or an independent consumer right.
The proposal to implement the directive and amend French copyright law restricts the consumer's right to make private copies. The bill allows the use of anti-copy systems to hinder private copying and also makes provision for the legal protection of technical measures.
Pursuant to Article 8 of the bill:
"The author of a work other than software, being the artist, record or film producer and/or audiovisual company, may put in place technical measures for the protection of its rights in application of the provisions of Part 1 and 2 of the French Intellectual Property Code.
These measures are enforceable against any third party. Nevertheless, they must permit the beneficiary of legal exceptions to enforce his rights, provided he has legal access to the work. The right holder is not obliged to remove technical measures if the work is made available to the public in order to allow access to those who have a legal right to access the work."
In addition, the judge may prescribe any measure in order to enable the beneficiary of a right of private copying to access the work.
Consumer associations and some authors' rights associations claim the bill is an attack on the right of public access. They seek clarification of the private copying definition in order to guarantee its effective application. A group of eminent IP lawyers has been appointed to redraft the bill. The purpose is to submit some counterproposals to the Ministry of Culture in order to take into account wider interests, as well as the economic and cultural factors involved.
For further information on this topic please contact Alexandre Menais or Sophie des Courtis at Lovells by telephone (+33 1 53 67 47 47) or by fax (+33 1 53 67 47 32) or by email (email@example.com or firstname.lastname@example.org).
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