The new French law on author’s
rights and related rights in the information society
Joachim Schöpfel
Head of the E-publishing and Document Supply
Department at INIST-CNRS and Lecturer on Scientific Information at the
Keywords
Author’s rights, EU Copyright Directive, national
law, document supply,
Abstract
Purpose:
Paper
type: Viewpoint
Introduction
The EU directive 2001/29/CE (EUCD) had
to be implemented into member states’ national laws prior to December 22, 2002.
Most of the countries modified their laws on copyright and author’s rights
between 2003 and 2005[1].
Spain implemented the directive in June 22, 2006, and after the votes of the
National Assembly and Senate June 30, 2006, the French President finally promulgated
a new law on the author’s rights and related rights in the information society
(“Loi no 2006-961 du 1er août 2006 relative au droit
d’auteur et aux droits voisins dans la société de l’information” called
“DADVSI”) August 1, 2006 (JO 2006)[2].
We have already presented the position
of the French government in this journal (Schöpfel 2004, 2005). This paper reprises
the history of the new law, its content, some reactions and the possible impact
on document supply. It should be stressed that the author is not
a lawyer or legal expert, and that the views expressed here do not necessarily
reflect those of his employer.
Chronology, lobby and debate
.
Preparation of the new law took more
than two years. Key dates:
November 2003: The former minister of culture and
communication, J.J. Aillagon, presents a first draft that introduces technical
restrictions (Digital Rights Management, DRM) and legal sanctions into the
existing French law.
January 2005: The
May 2005: C. Vanneste, MP and member of the
law commission, submits a report with amendments to the bill.
September 2005: The French Prime Minister, D. de
Villepin, goes for unusual emergency procedures (fast-track treatment) for the
parliamentary debate.
December 2005: The French parliament (National
Assembly) votes against the will of the government by passing two amendments that modify from top to bottom
the draft law, legalizing peer-to-peer (P2P) and downloading of internet files
if a flat fee been paid (“global licence”).
March 2006: First lecture of the law in the
National Assembly without the controversial amendments that have been
skipped by the government. After 18 sessions and 60 hours of debate, the
revised bill is approved by the majority.
May 2006: The second chamber, the Senate,
adopts the law with two new amendments: an exception for education and
research, and creation of an “authority” for the regulation of the DRM. The
obligation for interoperability[3]
disappears.
June 2006: Without a second lecture, the new
law is endorsed by the two chambers.
July 2006: The Constitutional Council declares
the procedure and law as conforming to the French constitution. After its
promulgation by the President, J. Chirac, the DADVSI is published in the Journal
Officiel.
Professional and consumer associations
lobbied since 2004 against the government’s project (see Battisti 2004). More
than 7,000 library and information professionals signed a petition that
condemned the initial project as “the most restrictive property rights law in
In December
The main topics of the long and controversial
parliamentary debate were software interoperability, open source software, peer-to-peer
transfers, technical measures for the protection of digital content (DRM / TPM), private copy and sanctions of illegal
downloading (P2P). The central players were the media, the computer industry and
the businesses in digital environment (Apple, Microsoft, Universal, Warner etc)
while the needs of libraries, education or research mostly played a secondary
role. Overall, the lobbying by economic interests and the political conflicts
were closely intertwined in this affair. The debate was largely covered by the
written press (Les Echos, Le Monde, Le Figaro, Libération) and the
internet[6].
Content
The new DADVSI with its 52 articles goes
far beyond the initial draft of 2003. It not only implements the EU directive
but tends to create a legal framework for business and internet use in the
digital society. What will change?
Sanctions: Illegal action (for instance P2P,
manipulation of DRM) will incur graduated sanctions that range from €38 to €30,000
or 10 months in prison. Publishing, distributing or promoting software that is
“manifestly intended” for unauthorised distribution of copyright works incur a
penalty of up to 3 years in prison or a fine of €300,000.
Exceptions: Exceptions are introduced for
education and research, libraries, museums, public archives and disabled
persons; fair compensations have to be negotiated. The exception for education
and research is not applicable prior to 2009.
Mediation: The law institutes an independent
commission (“authority”) of mediation and regulation[7]
with legal and technical competence for DRM, interoperability and private copy.
Private copies: The law guarantees the making of private
copies but leaves decisions on definition and application to the new authority.
Interoperability: “When I buy a song or video via
Internet, I should be able to read it on any machine” declared the Ministry of
Culture, R. Donnedieu de Vabres.
DRM: The law defines the technical measures of
digital rights management that protect internet content.
Legal deposit: The law sets up the legal framework
for the legal deposit of internet content including software and databases.
Public function: Intellectual property rights of employees
of public administrations (civil servants) are defined.
Open access: The government will finance an OA
platform for those (especially young) authors and artists who want to freely
disseminate their works.
Reactions
Immediately after the adoption by
the two chambers, the opposition (socialist party) introduced a process before
the Constitutional Council to invalidate the parliamentary procedure that was
rejected. Nevertheless, the socialist party has already announced that they
will abolish the law if they win the 2007 elections.
While the industry seems globally
satisfied, professionals regret that the amendments undermine the principle of
interoperability. “
According to the lawyer B. Lamon, the
application of the three-step test contained in TRIPS article 13 and EUCD to make
private copies will strongly limit what can be considered as private use. In
reality, the problem of private coping, interoperability and DRM, has not been settled
by the DADVSI but needs further court decisions and regulation by the new authority.
Reacting to the promulgation of the
new law, the journal Etudes Photographiques closed down its free site
(on www.revues.org) because of the confusing legal and economic situation of
open access to images and texts.
Impact
on document supply
Two aspects, especially are of
interest for document supply, the exception for education and research and the
concept of private copy.
Exception: In their open letter of February
2006, the university presidents reminded the government that they already pay
nearly €3m per year for the legal reproduction of protected works[8].
Without the exception for education and research, so their argument, the
domination by non-French content and Google would increase. Their intervention
was partly successful, and the Senate introduced the exception into the
government’s project, though restricting it harshly:
The exception excludes educational works
(manuals) and “digital editions of written works”.
The exception concerns only copies “for
illustration” made for students, teachers, and scientists in a non-for-profit
context.
The exception is linked to a fair
compensation (flat fee) to be negotiated.
Thus, the exception for education
and research is limited to non-substantial reproductions from databases and
printed works but applies neither to digital libraries nor for other than
“illustrative” use - whatever this may be in a scientific context.
Private copy: The DADVSI guarantees the principle
of private copying (reproduction of a legally acquired work for personal use) but
not the practicalities, for example, defining the number of copies that can be
made. It creates confusion between the notion of the private copy and the
exclusive copyright of an author. The consumer will continue to pay for private
copy when buying blank DVDs or CDs, while at the same time being restricted by
DRM. The situation is puzzling: three court decisions (the last in January
2006, UFC-Que Choisir vs. Warner Music/FNAC) give priority to private copy over
copy-prevention systems but another court decision (February 2006, UFC-Que
Choisir vs. Studio Canal/Universal Pictures, called Mulholland Drive case)
has a tendency to exclude DVDs from the private copy exception, considering the
private copy NOT an absolute consumers’ right. The new law is likely to
strengthen this interpretation, linking the private copy to the “normal
exploitation” of the protected work and to the “justified economic interests”
of the right-holders – a concept to be assessed and negotiated by the new
authority.
Document supply: Up to now (August 2006), there has
been no direct impact on the activity of the French suppliers (university
libraries, ABES, INIST), and we have had no official statement from the Ministry
of Education or the French copyright centre CFC. Each institution surely will
analyse the new legal environment, if necessary re-negotiate existing
agreements and start new negotiations on fair compensation for private copies
and the exception for education and research. It is an open question if this
will profoundly change the actual situation and the relationship between
suppliers, consumers (customers) and publishers. Anyway, the education for
education and research will not apply before January 1,
And now?
The new French law is surely not the
last but merely one more step in the evolution of author’s rights and industry
and consumer behaviour in the digital society. The political opposition (but
also parts of the conservative majority) have already announced their
willingness to revise the DADVSI.
More clarification is to come from
court decisions, from the new authority of regulation and from future
negotiations between consumer associations, public institutions and
right-holders.
Information professionals
(“Interassociation archives bibliothèques documentation”) continue to lobby at
a national and European level for an extension of the exception for education
and research to all kinds of works and usages, and call for a large alliance to
campaign for this goal
Other European countries, such as
Five years after the 2001 directive,
the European Commission asked the Dutch expert on intellectual property B.
Hugenholtz for a careful evaluation of the EUCD and its implementation in the
member countries, especially with regard to private copy, fair compensation and
DRM measures, and has announced new proposals for the fall of 2006.
The late implementation of the
directive by
Bibliography
Battisti, M. (2004), “ Accès à l’information et droit d’auteur: une
solution équilibrée est-elle encore possible? Débat de l’interassociation,
Paris 22 mars
Beard, L., Budd, V.,
Haller, A., Schuler, M., Silver, I., Wimmers, J. (2004), “Harmonization of
Copyright law in the European Community: A comparative overview of the
implementation of the Copyright Directive (2001/29/EC) in
Férnandez-Molina, J.C.
(2003), “Laws against the circumvention of copyright technological protection”.
Journal of Documentation, Vol 59, No 1, pp. 41-68.
JO (2006), “Loi no 2006-961 du 1er août 2006
relative au droit d’auteur et aux droits voisins dans la société de l’information”.
Journal Officiel de
Oppenheim, C. (2005),
“Legal issues for information professionals VIII: understanding the recent
changes to copyright law”. Serials, Vol 18, No 3, pp. 186-191.
Schöpfel, J. (2004),
“Transitions – news on the access to digital information in
Schöpfel, J. (2005),
“Between open access and copyright: document supply in
Watkins, J. (2003),
“Changes in the
All web
sites visited in July and August 2006.
The author
Joachim Schöpfel is Head of the E-publishing and
Document Supply Department at INIST-CNRS and Lecturer on Scientific Information
at the
[1] For background information
see Beard et al. (2004), Férnandez-Molina (2003) or Watkins (2003).
[2] See the full text of the new
law at
http//www.legifrance.gouv.fr/imagesJOE/2006/0803/joe_20060803_0178_0001.pdf
[3] “Interoperability is used to
describe the capability of different programs to exchange data via a common set
of business procedures, and to read and write the same file format and use the
same protocols.” (Wikipedia)
[4] See http:// www.droitauteur.levillage.org
[5] See the documentation on the
Ministry’s site at http://www.culture.gouv.fr/culture/actualities/dossiers/davsi/index-droits05.html
[6] See for instance the
synthesis by the Journal du Net at
http://www.journaldunet.com/diaporama/0606-dadvsi-europe2
[7] Six experts nominated for six
years by the government
[8] via their agreement with the
French Copyright Centre CFC
[9] Oppenheim (2005) offers a formula
to assess the financial risk involved in undertaking certain actions in an unspecific
legal environment with facts open to interpretation. His formula puts together
(a) the subjective probability that what is being done is infringement, (b) the
chance that the copyright owner will find out, (c) the probability that the
copyright owner chooses to take legal action, and (d) the likely damage plus
costs that might be awarded against the infringer if the case were to come to
Court.