France Forges Ahead With Copyright Law

By Dugie Standeford for Intellectual Property Watch

The French Senate on 10 May approved legislation aimed at aligning the country’s intellectual property law with the European Union Copyright Directive. The Senate package differs in several key respects from the one adopted in March by the National Assembly but is equally controversial, stakeholders said.

The Senate-passed version will now be reconciled with that of the lower house of the French Parliament, with compromise language expected by late May, according to sources.

Some opponents see the proposed measure on authors’ and related rights in the information society (DADVSI) as not only bad news for France, but said it could prove an even bigger headache for industry and users alike if other countries follow France’s lead.

The battle in both houses has centred on the proposal’s digital rights management (DRM) provisions. The Assembly ultimately approved language requiring technology providers to give third parties, under certain conditions, the information needed to allow digital content to be played on interoperable platforms.

The provision – widely reported to mean that Apple Computer could be forced to make its music available to devices that compete with the iPod it makes – was greeted warmly by non-commercial Internet users (who nevertheless said they would prefer to do without DRM in the first place) but sparked concern in the music and technology sectors. Record labels worried about the lack of a statutory definition of “interoperability” and said the provision opened the door to hacking. Apple branded the proposal “legalised piracy.”

The Assembly version allowed “any and all interested parties” to seek a judicial order requiring a provider of technological measures to provide the “essential information for interoperability,” according to an unofficial translation. Senators, however, restricted that right to service providers, computer program publishers and software developers, said Francisco Mingorance, European director of public policy for the Business Software Alliance, which counts Apple as a member.

The Senate version also created a new entity, the Authority Regulating Technological Protection Measures, which, along with judges, will handle requests for access to source codes. Technology providers are theoretically entitled to compensation for use of their technology by another under the Senate text, but not that of the Assembly, Mingorance said.

Under both, those who import, transfer from an EU member country, or provide or publish software likely to process protected works containing technical protection measures must register the source code with the “governmental department in charge of the security of information systems.”

The End of the “Apple” Problem?

The Senate system for facilitating interoperability is completely different from the lower house’s, according to Olivia Regnier, deputy regional director and regional legal counsel for the International Federation of the Phonographic Industry (IFPI). The Assembly’s interoperability provisions are undefined and “very vague” and could allow anyone to hack protected programs, she said. The Senate version does not define interoperability either, but – by requiring that anyone seeking to access source code respect the original creator’s rights and protect them with a strong security system – it sets out the conditions in which interoperability can be achieved, she said.

The creation of a regulatory authority to decide requests for access to source code could “greatly solve” the Apple issue, Regnier said. But Mingorance said the mere fact that companies will be forced to open their DRM technologies – whether for interoperability or other purposes – and to release that information to a government body, will make it easier to circumvent content protections. Apple declined to comment further at this stage of the DRM debate, a spokesman said.

For individual users, the DRM authority “will be at best inefficient, at worst instrumentalised by the rights holders interest groups,” said Philippe Aigrain of the Societe Pour Les Espaces Publics d’Information, which provides a platform for discussion of participative democracy. In practice, he said, it divests judges of the power to rule on the legitimacy of uses that require circumvention, replacing judicial scrutiny with an “understaffed and under-pressure ‘authority’ that risks having only the name.”

The ‘Vivendi-Universal’ Provision

One provision adopted in slightly different forms by the upper and lower houses is “horrible for everyone,” Mingorance said. The so-called “Vivendi-Universal” provision imposes broad liability on software developers and publishers whose products are used illegally by third parties for peer-to-peer activities. Not only does it make such companies liable for daily fines for copyright infringements they may know nothing about, but it allows courts to order them to “fix” their software to stop the infringement, he said.

The Senate made DADVSI “much worse” by removing language that limited the application of the Vivendi-Universal provision, Aigrain said. It created various mandatory DRM applications – the first bill to do so – potentially opening the door for “multiple laws of the same type in many countries or at the European level.”

Requiring technology importers to hand over their DRM information to a government authority is also problematic to technology providers and, by implication, to content owners, said Regnier. IFPI expected the Senate to throw out that language, but instead it approved it. It is “very far-reaching” and legally questionable, she added.

The Conciliation Process

The two proposals are now undergoing conciliation in a joint Senate/Assembly committee, the most likely outcome of which will be legislation favouring the lower house version, Mingorance said. In either case, the French market will be “an interesting place to operate” for technology and music companies seeking to distribute their works while having to disclose how they protect their content, he said.

French copyright law currently contains all the necessary tools and protections creators need to create, protect and distribute their works as they see fit, Mingorance said. They are free to choose whether to provide their content via open source or proprietary platforms, whether or not to charge, and so forth. DADVSI will restrict the freedom of authors to select their own business models, and impose the views of one particular sector on others, he said.

“We feel very bad” about the bill, Mingorance said. It will be a “real problem” in France as well as in other countries that take the same route (so far, only Denmark has signalled interest), he said.

Compromise language is expected to be unveiled by the end of May, said Regnier, adding that France’s Constitutional Council will be asked to vet it.