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Features - Sign Of The (Digital) Times: France’s Struggle With A New
Copyright Law
By Dugie Standeford for Intellectual Property Watch
In the global search to find a balance between copyright protection
and consumer rights in the digital age, France recently has emerged
on the front lines with a possibly precedent-setting approach.
The French National Assembly completed work 16 March on a legislative
package aimed at aligning France’s intellectual property law with the
European Union Copyright Directive. Debate closed on 400-plus
amendments to the proposed measure on authors’ and related rights in
the Information Society (DADVSI) ahead of a 21 March vote on the
entire bill, according to a parliamentary spokesman. Because some
provisions have proven so controversial, content owners and civil
liberties advocates will likely continue to monitor the bill closely
as it moves to the Senate.
Debate on the amendments began in the lower house in December. A
brouhaha broke out between powerful consumer groups and the recording
industry over a proposal to ban unencrypted peer-to-peer (P2P)
transfers. Discussion then bogged down over a compromise proposal to
allow consumers to pay a monthly “global licence” for unlimited
downloads from P2P networks – in effect legalizing P2P. The assembly
rejected that measure and talks on the bill resumed in March, said
Olivia Regnier, deputy regional director and regional legal counsel
for the International Federation of the Phonographic Industry (IFPI).
Soon more contention arose – this time over plans to require online
music sellers to make their content available in files compatible
with any music player, or interoperable. The media reported that
Apple would be forced to provide its popular iTunes music download
service to competitors’ devices and speculated the company might pull
its music out of France.
Interoperability and i-Tunes
Americans for Technology Leadership, a free-market industry group
with members such as Microsoft, blasted the proposal. Its immediate
effect could be the removal of iTunes from France, said ATL Executive
Director Jim Prendergast. In the long-term, he said, consumers will
lose even more if the trend continues and “other countries can
dictate what technology companies do with their own intellectual
property and how they can design their own products.”
IFPI members, who favour interoperability, support the goal of the
provision, Regnier said. However, interoperability should not be
mandated at the expense of the integrity and security of digital
rights management (DRM) technology, and hacking should not be
permitted under any circumstances, she said. DRMs are used by rights
holders to control use of digital content.
Imaginons un Reseau Internet Solidaire (IRIS), non-profit
organization that seeks to defend and expand the rights of
noncommercial Internet users, also supports interoperability of
platforms but would prefer that DRM not exist, said IRIS’s Meryem
Marzouki. However, some amendments to the DADVSI showed movement on
the part of lawmakers. In December, they approved language saying
DRMs should not prevent interoperability, so long as the
interoperability does not violate intellectual property rules,
Marzouki said. A related provision allowed the French competition
authority to mandate access in open standard form to technical
information to ensure interoperability. “This is progress, since
interoperability is now required by law,” she said.
Last-minute negotiations resulted in changes to the interoperability
provisions. The new version bans hacking but puts the responsibility
on technology providers to give third parties the essential
information they need to enable interoperability, Regnier said.
Instead of the competition council, courts now have the authority,
under emergency procedures and the threat of a daily fine, to require
that information needed for interoperability be made available, said
Marzouki.
It is unclear at this point whether Apple will interpret the revised
interoperability clause as obliging it to make its files compatible
with other platforms, Regnier said. The text is long and very
technical, and IFPI is digesting it to assess its possible impact.
“But at this stage, as far as the music industry is concerned, the
text of this measure will respect the security of technology and does
not seem to open the way to abuses,” she said.
The interoperability proposal is revolutionary, Ovum Research Analyst
Jonathan Arber wrote on 15 March. The success of iTunes is that it is
closely tied to – and works as a marketing tool for – the iPod,
Apple’s ubiquitous portable player. Apple is not likely to be willing
to make an exception to that symbiosis for France, and there would be
nothing to stop non-DRM-protected files from being downloaded in
France and shared around the world.
An Apple pull-out from France “may be bad news for Steve Jobs
[Apple’s CEO]” but it is “great news for French consumers” seeking
more choice in digital content, Arber said.
The draft bill may also still contain two major modifications over
earlier versions, Marzouki said. One incorporates many of the
exceptions to copyright and related rights contained in the EU
directive, though not the optional ones.
Progress on Penalties
A second sign of progress appears in the bill’s penalty provisions,
Marzouki said. Although downloading remains an infraction rather than
lawful private copy exception, noncommercial downloads are subject to
the lowest fine in France’s penal code, €38 (about US$46), instead of
the threatened high sanction for counterfeiting. Unauthorized
uploading could now be subject to a €150 (or US$183) fine instead of
the three years’ imprisonment and €300,000 (US$366,000) fine for
counterfeiting.
Illegal commercial downloading and uploading remain subject to the
high penalties, Marzouki said. Distribution of DRM circumvention
software now carries a penalty of €30,000 (US$36,600) and six months’
jail time, while possession of hacking software is punishable by a
€750 (US$915) fine. Those caught trying to hack DRM technologies
could be fined €3,750 (US$4,574). These penalties were “downsized”
from earlier proposals where they were punished as counterfeiting,
she said.
But lawmakers also adopted one “very dangerous” provision that makes
the penalty for counterfeiting applicable to any editor of P2P
software who purposely encourages illegal file-swapping, Marzouki
said: “This creates a major insecurity and objectively criminalizes
P2P software.”
DADVSI’s interoperability provision has reportedly provoked a rift
between the Assembly and the Senate. Senator Michel Thiolliere, the
designated speaker for the bill, was recently quoted as saying the
proposal will likely be squelched. However, he also criticized Apple
for abusing DRM to protect its market share.
This work is licensed under a Creative Commons License. All of the
news articles and features on Intellectual Property Watch are also
subject to a Creative Commons License which makes them available for
widescale, free, non-commercial reproduction and translation.
William New, the author of this post, may be reached at wnew@ip-
watch.ch.
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