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List:       dmca-discuss
Subject:    [DMCA_Discuss] What's Up With the New French Copyright Law?
From:       Seth Johnson <seth.johnson () realmeasures ! dyndns ! org>
Date:       2006-04-28 10:48:57
Message-ID: 4451F319.9598CD0D () RealMeasures ! dyndns ! org
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(Website text pasted below.  -- Seth)

-------- Original Message --------
Subject: [FC-discuss] EUCD / DADVSI : what is going on with the
new Frenchcopyright law ?
Date: Fri, 28 Apr 2006 11:25:15 +0200
From: Jean-Baptiste Soufron <jbsoufron@gmail.com>
To: Public discussion list <discuss@freeculture.org>

The new french copyright law is just about to be studied at the
High House of Parliament. Its name is Droit d’Auteur et Droits
Voisin dans la Société de l’Information (DADVSI) which means
Authors Rights and Neighboring Rights within Information Society,
and its content is heavily debated over the Internet. Given the
high number of questions I get on this topic, I thought a short
explanation of the whole thing might be an interesting piece for
english speaking readers.

> http://soufron.typhon.net/article.php3?id_article=132

Do not hesitate to ask questions or commentaries.

Best,

Jean-Baptiste Soufron
cersa-cnrs paris 2
+33 (0)6 17 96 24 57
http://soufron.typhon.net



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---

> http://soufron.typhon.net/article.php3?id_article=132


EUCD / DADVSI : what is going on with the new French copyright
law ?


Par Jean-Baptiste Soufron, vendredi 28 avril 2006 à 01:52 ::
Mesures Techniques de Protection, DRM ::#132 ::rss


The new French Copyright law is just about to be studied at the
High House of Parliament. Its name is Droit d’Auteur et Droits
Voisin dans la Société de l’Information (DADVSI) which means
Authors Rights and Neighboring Rights within Information Society.
And its content is heavily debated over the Internet, but it’s
not always easy to find english information about it. Given the
high number of questions I get on this topic, I thought a short
explanation of the whole thing might be an interesting piece.

DADVSI history

First of all, it’s important to understand that this DADVSI text
was originally a mere transposition of the 2001/29/CE European
Copyright Directive from 2001 (EUCD).

This European legislation is available here : (EUCD english pdf
http://europa.eu.int/eur-lex/en/consleg/pdf/2001/en_2001L0029_do_001.pdf)

At first, this european text was itself a transpotion of the 1995
WIPO treaties. It was simply designed to grant legal protection
to Digital Right Managements. But since its introduction in front
of the Parliament in 2005 December, the text evolved following
various amendments proposed by lobbyists from all sides. It now
looks like a very complicated text, with various levels of
complex provisions impacting on DRM as well as on flat rate
levies system, interoperability, fair use law, etc.

The original text of the DADVSI is here : (in french
http://www.assemblee-nationale.fr/12/projets/pl1206.asp)

The current version of the text is here : (in french
http://www.assemblee-nationale.fr/12/ta/ta0554.asp)

DADVSI importance

Legal frameworks surrounding the music industry and file sharing
are transforming at a fast pace across the world. The French
debate is of uttermost importance In this worldwide movement for
three reasons.

First because contrary to many other countries, french people
managed that it ends up as a real national debate. Public got
passionate over what is happening. Representatives did not
hesitate to vote against their own government, or to propose
amendments that could infuriate groups like Apple. Newspapers
rand daily papers about this fight.

Second, France is probably one of the only countries where groups
like Association of Audionautes managed to get at the forefront
of the political campaign. They not only achieved impressive
success in getting public attention through newspaper, tv, and
internet. But they also found their way in Courts, in Parliament,
and with the government. Thanks to their work, several Court
trials decided that downloading and uploading was legal under the
fair use provision of French Law, Legislators understood the
importance of interoperability, major Artists associations became
sensitive to the issue of leaving their public free instead of
trying to uphold some illusionary DRM business models.

Third, it is necessary to remember that France was one of the
first country to create a modern intellectual property regime.
The difference between moral and economical rights were already
present in the 1793 French Law. Artists associations begun
collecting and redistributing music revenues around 1950, private
copying provisions were added in 1957, and levies were created
between 1975 and 1985. And last but not least, interoperability
provisions begun to appear in 2002. Actually, French have
experience on all these modern issues. They were one of the first
to implement it, and looking at the French situation is certainly
the right way to understand both the legal and economical
consequences of solutions like flat rate levies, or
interoperability provisions. And if we add that French are able
to influence EU legislation, the evolution of their system should
be studied even carefully.

DADVSI process

First of all, it is important to understand the actual
legislative process. Last December, the government proposed a law
to transpose the 2001 European Union Copyright Directive.

Once again, this first DADVSI text is here : in french

This text was amended by the Assemblée Nationale (Low House) from
December to March.

The impressive list of amendments is here : (in french and in
html
http://recherche.assemblee-nationale.fr/amendements/resultats.asp?NUM_INIT=1206)

or here (in pdf
http://www.assemblee-nationale.fr/12/pdf/amendements/adts_1206.pdf)

The debate was first supposed to last only for a couple of days,
but Representatives from both sides begun rising issues about
civil liberties, privacy protection, interoperability, etc. This
took the government by surprise, but they finally managed to get
their text adopted even in a heavily modified version. This text
is now in the hands of the Sénat (High House) that should study
it from May 5th to May 9th, and amend it again. Once it will have
been voted by the two Houses, the final text will then be studied
by the Constitutional Court that will certainly decide to modify
it for one last time.

The DADVSI webpage on the website of the Low House of the
parliament is here : (in french with the projet of law, its
amendments and the various official reports
http://www.assemblee-nationale.fr/12/projets/pl1206.asp)

And the DADVSI webpage on the website of the High House of the
parliament is here : (in french with additional reports and new
amendments http://www.senat.fr/dossierleg/pjl05-269.html)

DADVSI content

So, as one can easily understand, the current version of the law
will still evolve. But the current text is incredibly complicated
and it will probably keep impossible to enforce. It was supposed
to transpose the 2001 EUCD, but it now implements so many new
provisions that have no relations whatsoever with the original
European text. For example, the sanction system is absolutely
inapplicable as such. It suppose several sanction levels going
from euros 38 to euros 300 000 under the dual assumption that it
will be possible to monitor every citizen, and that judges will
actually accept to enforce it even when it’s contrary to very
common civil liberties provisions like due process of law, or
innocence presumption.

Same thing for the "iPod" provision. Representatives decided to
amend the text. They wished to mandate DRM producers to grant
RAND licenses of their DRM Software to any user who would need it
for interoperability. This provision is very unlikely to be
accepted by the High House or the Constitutional Court, but it is
worth noting that France was the first country to implement the
notion of Open Standards in its legislation with the 2002 Loi
pour la Confiance dans l’Economie Numerique (LCEN). This iPod
provision only translates these principles from e-gov to the DRM
context.

Here is the text in french :
-  Les mesures techniques ne doivent pas avoir pour effet
d’empêcher la mise en œuvre effective de l’interopérabilité, dans
le respect du droit d’auteur. Les fournisseurs de mesures
techniques donnent l’accès aux informations essentielles à
l’interopérabilité.
-  On entend par informations essentielles à l’interopérabilité
la documentation technique et les interfaces de programmation
nécessaires pour obtenir dans un standard ouvert, au sens de
l’article 4 de la loi n° 2004-575 du 21 juin 2004 pour la
confiance dans l’économie numérique, une copie d’une reproduction
protégée par une mesure technique, et une copie des informations
sous forme électronique jointes à cette reproduction.
-  Tout intéressé peut demander au président du tribunal de
grande instance statuant en référé d’enjoindre sous astreinte à
un fournisseur de mesures techniques de fournir les informations
essentielles à l’interopérabilité. Seuls les frais de logistique
sont exigibles en contrepartie par le fournisseur.

Which means in english :


-  DRMs cannot forbid effective interoperability, with respect
for copyright. DRMs providers grant access to informations that
are essential for interoperability.
-  Informations that are essential for interoperability means the
technical documentation and the programmation interfaces that are
necessary to reproduce in an Open Standard any content protected
by a DRM, and a copy of these informations.
-  Anyone can use a procedure of urgency to ask the president of
the Tribunal de Grande Instance to mandate DRMs providers to give
the essential informations necessary for interoperability. Only
transportation costs will be exigible.

And the same problem is arising when it comes to the so-called
"vivendi" provision claiming that Software developers should be
sued and condemned heavily when their work is used to exchange
content over Internet.

It comes like this in french :

Est puni de trois ans d’emprisonnement et de 300 000 € d’amende,
le fait :

1° D’éditer, de mettre à la disposition du public ou de
communiquer au public, sciemment et sous quelque forme que ce
soit, un dispositif manifestement destiné à la mise à disposition
du public non autorisée d’œuvres ou d’objets protégés

Meaning in english : Whatever its form and when (meaning that
this is true for distributing the source code as well), the
voluntary edition or distribution of any system obviously
designed to allow the non-authorized distribution of protected
content shall be punished with 3 years of jail, and a fine of
€300 000

The result ?

Given the over-extensive range of this provision, a few French
companies already managed to leave the country, and some others
are thinking about it.

But there is a more ambitious agenda about a global licensing
system.

France has a long-lasting history of cultural levies. We begun
discussing around 1975, and we created a flat rate tax system
called "Redevance Copie Privée" in 1985. This idea was based on
the assumption that private copying on VHS or audiotapes was
perfectly legal, but that it was a downstream market, and that
Artists should get something from it. Then, in order to ensure
that they would get a revenue from the increasing sales of VHS
and audiotapes, a system was organized around a "Private Copying
Commission" composed equally from consumer unions, producers,
industrials and artists. They extended this flat rate tax to
digital storage supports in 2001. The system worked well enough
to generate a mere euros 200 millions in 2003. It was also
adapted and transformed to fit other contexts like books and
photocopying, radio, movie theaters, etc.

So far, in December, we were able to convince some
representatives from both sides of the Parliament. They proposed
various amendments implementing levies rather than criminal
sanctions. The proposed system was called "Licence Globale",
adapting the photocopying flat rate tax to Broadband access. And
for the first time in recent French history some of them got
voted by the Low House against the project of government owning
the House majority. They eventually got rejected in March, but we
hope to be able to get them back in May. Anyway, we will push
forward a new legislation after the next Presidential Election to
take place in April 2007

An explanation of the "Licence Globale" is available on the
website of the public-artists alliance : (in french
http://www.lalliance.org/pages/2_1.html)

We are quite confident that a similar system will have to be
implemented in the end. People are not afraid of Criminal
sanctions. Not to mention that such a law would be heavily
challenged in Courts. Despite its young age, the Association of
Audionautes already has a good history of judicial, helping 200
prosecuted people, and winning more than 20 cases in less than 2
years. Downloads will not stop, but artists will get nothing
unless there is some mechanism to get things right.

For example, here is the website of the Association of
Audionautes, featuring many Court cases that were won by its
members : (in french and in english
http://www.audionautes.net/blog/)

And if you want to help them to defend more people, do not
hesitate to give them a donation : (donation for audionautes
http://www.audionautes.net/pages/donner/cb.php)

But the government is not really supportive of these goals. It’s
a luck that other interest groups are opposing him.

The French government wrote one of the strongest DRM legislation
in the world, and since the DMCA go back to 1995, they don’t even
have the excuse of addressing new issues. When Free Software
associations explained them that some provisions of this law
could put a stop to Free Software development, they showed their
total lack of knowledge on this subject by answering that they
understood these questions but that it was a new problem since
Free Software did not exist in 2002, at the time they drafted
their project. For real.

In the same way, the government refused to back up any amendments
resulting in an effective education exception. These were
proposed in order to allow the use of online content for
education purposes, but the government answered that they were
actually negotiating licenses with authors association, and that
they preferred to go that that way rather than regulate it. The
result ? A license with a limited number of quotations authorized
in a PhD paper. A contract where the government authorizes
authors associations to get logins and passwords to access any
education or research computer facilities. Whatever the topic of
research, they should be granted the right to search for
counterfeinting content, etc.

I wrote a piece about this with my friend David Monniaux, a
french computer science maverick :

http://soufron.typhon.net/article.php3 ?id_article=127

On the opposite, french consumer unions and some authors
associations invited us to work with them. To understand this, it
is important to realize that the amount of the private copying
tax was close from 200 millions euros in 2003, and that it’s only
expanding with the rise of digital storage. So what happened is
that some associations are now redistributing that private
copying tax, instead of redistributing sales products. It’s also
important to note that 25% of this tax is dedicated to the
support of new creation through sponsorship.

DADVSI future

Now a question would be to know if such a legislation might be
able to pass in the other countries, like in the EU or the US.

It’s completely possible. Actually, it helped France to protect
its culture for the last 20 years. But another solution might be
to open catalogues of rights by suppressing exclusive rights.
That would create a system where artists are certain to get paid
when their work generates some value, but they would not have the
possibility to negotiate or say "no" anymore.

_______________________________________________

USC Title 17 Sec. 107. - Limitations on exclusive rights: Fair use 

This material is distributed to those who have expressed a prior interest in \
receiving the included information for research and educational purposes.

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