. . . as appeared in . . . A WorldTrade Executive Publication WTEWTE Global Intellectual Property Asset Management Report Covering e-commerce, corporate intellectual property management and related licensing June 2006 Formerly known as Global eCommerce Law & Business Report Volume 8, Number 6
View from Brussels: DADVSI and the Future of French Copyright Law BY JACQUELINE KLOSEK AND KENDRICK NGUYEN (GOODWIN PROCTER LLP)
As an European Union (“EU”) Member State, France to DRM techniques and copyrighted digital content. When is required to implement EU Directive 2001/29/EC of the it was first introduced, the DADVSI was essentially a mere European Parliament and of the Council of May 22, 2001 on transposition of the DRM provisions contained in the the harmonization of certain aspects of copyright and related EUCD. However, as the proposed law moved through the rights in the information society, (commonly known as the legislative process, it has evolved to bear little resemblance “EUCD”). The EUCD, a controversial measure in its own to the EUCD. right, represents the EU’s implementation of the 1996 The draft of DADVSI that was up for consideration in WIPO Copyright Treaty. late 2005 would have mandated DRM technical protec- The vast majority of EU member states have already tion methods and criminalized the production of any soft- implemented the EUCD into national law. However, ware that could potentially facilitate the circumvention France, Spain and the Czech Republic have not yet done of copyright protections. In late December of 2005, the so. France’s attempts at enacting legislation to implement French National Assembly voted for the first time on the EUCD have been fraught with controversy. The DADVSI. Rather than voting on the proposed legislation, DADVSI, which stands for Droit d’Auteur et Droits Voisins dans la Societe de l’Information, or “Author’s Rights and Related Rights in the Information Society,” is a highly con- DADVSI aims to protect copyrighted content troversial proposed legislation that was originally pro- 1 online and digital rights management (“DRM”) posed in 2003 and came before the French legislature last mechanisms by criminalizing certain activities, year. It is designed to give legal effect to the EUCD under French national law. many of which are considered legitimate by Currently moving its way through the legislative pro- many people in France. cess and having been extensively amended,2 DADVSI aims to protect copyrighted content online and digital rights management (“DRM”) mechanisms by they passed an article that removed the DRM proposal criminalizing certain activities, many of which are con- from the draft law and instead opted for the equally con- sidered legitimate by many people in France. Because of troversial global license concept. The global licensing con- its potential impact on French society and the software cept attempts to halt peer-to-peer use by increasing industry, DADVSI has been heatedly debated by people monthly Internet access fees from two to six euros, while and organizations across the economic and political spec- allowing Internet users the freedom of unlimited peer-to- tra. peer downloading. The global license amendment was re- tracted from DADVSI in March of 2006, and the DRM pro- Background tection was put back in place. Among other notable provisions, the EUCD requires The National Assembly approved the amended all EU member states to give appropriate legal protection DADVSI on March 21, 2006.3 DADVSI was then sent to
Reprinted from the June, 2006 edition of Global Intellectual Property Asset Management Report, with permission of the publisher, WorldTrade Executive, Inc. For more information on Global Intellectual Property Asset Management Report, or other WorldTrade Executive publications, contact WorldTrade Executive, Inc., P.O. Box 761, Concord, MA 01742 USA • Phone: (978) 287-0301 • Fax: (978) 287-0302 • Web: www.wtexecutive.com • E-mail: [email protected] View from Brussels
the Senate, which adopted a modified version of the draft iii. Hardware Interoperability from the National Assembly on May 10. Next, DADVSI Another concern is DADVSI’s sweeping will go before the Mixed Parliamentary Commission, criminalization of circumvention, or facilitation of4 the which will consider both the Senate’s and the National circumvention, of copyright protections, along with the Assembly’s drafts and adopt some combination thereof. effects of such criminalization on techniques that enhance After that, DADVSI will need to face the Constitutional interoperability among software and devices. The prohi- Court, and then it will be sent for a final parliamentary bition of any software capable of facilitating copy protec- vote before submitted to the President for his signature. tion can put many important mainstream software appli- As such, there remains the possibility of additional cations in legal limbo, since any development tool or soft- changes. ware capable of reading encumbered formats can be said ADVSI and Its Controversies to facilitate DRM circumventions on some level. With One of the most controversial aspects of the DADVSI maximum penalties of up to 300,000 euros in fine and/or concerns the penalties that would be imposed under the 3 years in prison, this could have a chilling effect on the measure. Of specific concern have been the provisions of software industry in France. the measure that would criminalize: (i) the production of In response to concerns, the National Assembly software that could potentially facilitate the circumven- adopted the so-called “interoperability amendment” to DADVSI, which not only allowed to users to break DRM protections in order to make a work interoperable, but also One of the most controversial aspects of the allowed everyone who wants to make her software DADVSI concerns the penalties that would interoperable with something to demand the technical be imposed under the measure. documentation required to do this under certain condi- tions. This amendment has elicited strong reactions from DRM providers, especially U.S. companies doing business in France, for it would require digital content bought at any online store to be playable on any hardware. tion of copyright protections and (ii) peer-to-peer trans- In addition to the interoperability amendment, the ferring of copyrighted works. These provisions raise three National Assembly also adopted the following provisions major issues: (i) the practicality of prohibiting all peer-to- in March 2006: (i) allowing the decompilation of DRM peer transferring activities; (ii) the validity of the long- mechanisms for purposes of understanding how they standing French right to private copying; and (iii) the lack function; (ii) allowing users to bypass DRM mechanisms of interoperability, each as further discussed below: in order to use something in the way it is supposed to be used; (iii) allowing an artist the right to let his work be i. Peer-to-Peer Exchange of Copyrighted Digital Data distributed for free on peer-to-peer networks; (iv) allow- Opponents of the proposed criminalization of peer- ing libraries to copy works for non-commercial purposes; to-peer users have argued that because millions of people and (v) allowing DRM-circumvention software that is in France currently trade files on the Internet, it will be made for research or is designed for legal distribution of contrary to the commonly accepted culture, as well as plain work. impractical to enforce such provisions restricting peer-to- However, the Senate voted to limit the interoperability peer file trading. DADVSI does not make clear how the amendment in May of 2006, requiring DRM producers to government intends to enforce this prohibition against provide their security source code to service providers, millions of people, who view DRMs as intrusive and con- computer program publishers and software developers trary to accepted social practices. only, as opposed to everyone who requests. The Senate’s draft also creates a new regulatory authority that handles ii. The Right to Private Copying requests for access to DRM information. This new regula- In France, as in many other countries, there is a long tory authority can compel companies to license their ex- tradition of protecting the right to private copying of copy- clusive DMR mechanisms to rivals, but only if the protec- righted works for personal use. If DADVSI becomes law tion mechanisms are imposed by the companies without in its present form or a form similar thereto, then private the explicit authorization of the authors of the copyrighted copying, as the French presently know it, may no be pos- works. Under this provision, a company such as Apple sible. The amended draft adopted by the National Assem- could avoid being forced to license its exclusive file for- bly in March of 2006 established an exception to allow for mats if it obtained permission from the artists whose mu- the right to private copying. However, the Senate removed sic it sells. this exception in the draft adopted on May 10, 2006. News sources suggest that the Mixed Parliamentary Commission will likely approve a compromised text of
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the interoperability amendment that includes a provision 1 A French version of the originally proposed measure is avail- allowing companies to avoid sharing DMR information able at the web site of the National Assembly at:
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