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LEGAL BACKGROUNDER The title of the DADVSI law refers to ''droit d'auteur et droits voisins'' (author's rights and related rights). Author's right, in French law, has two components:
This conception is reflected in the Berne Convention On Copyright . '' Copyright '' is a related concept, but pertains to Anglo-American law; one notable difference is that copyright does not generally involve moral rights. The legal clauses governing author's rights and related rights form the first book of the French Code of Intellectual Property (CPI). This article will thus refer to articles from this code as CPI L''nnn''. The notion of author (extends to that of composer (of a music), playwright, painter, photographer, etc., though the law makes it a requirement that the work should be original (or show some supplemental originality, in the case of a derived work) in order to be protected. In practise, often, authors cede their rights to publishers, which then enforce the "exclusive right"; sometimes, authors are members of societies enforcing their rights on their behalf. Performers and publishers of audio records enjoy "related rights". These follow different rules, and have a shorter duration than the rights of authors. In practise, often, performers cede their rights to publishers, or have them enforced by societies. The exclusive right of the author is not absolute. According to WIPO treaties, local legislation may make exceptions to exclusive copyrights only if these exceptions fulfil a " Three-step Test ": limitations and exceptions
This is how, for instance, the US doctrine of '' Fair Use '' is justified with respect to copyright treaties. The 2001 European Directive on Copyright proposes a list of 10 exceptions to copyright that member states can choose to implement or not to implement, in addition to one whose implementation is compulsory (which makes an exception for temporary technical copies, meant to address Web Caches and similar systems). Exceptions to copyright in French law are defined in CPI L122-5. Among them is the notable exception for private copy: French residents may freely make copies of works (except software) for their private use, and freely display those works within their family circle (which is interpreted to include friends), without the agreement of the copyright holder. However, French law includes a "tax on private copy" meant to address the losses incurred by copyright holders; this tax is levied on blank media (audio and video cassettes, CD, DVD, as well as memory and hard drives in portable media players). Normally, taxation is reserved for legislation, which is normally voted by the French Parliament, but a statute endowed an ad-hoc commission to set the rates and conditions for this tax. European directives are not directly enforceable in EU member states. They first have to be transposed into local law, generally by an act of the legislature of the member state. While they give a general framework and impose some options, they may leave significant leeway; in the case of EUCD, for instance, the directive gives a list of ''optional'' copyright exceptions, and mandates ''appropriate'' legal protection for DRMs, without defining what constitutes an appropriate protection. Member states have to transpose directives within reasonable delays, or they face action by the European Commission . There may be subsequent litigation before the European Court Of Justice if a transposition is deemed to be inadequate. In March 2006, the Cour De Cassation , France's highest court in civil and criminal matters, ruled in a decision nicknamed '' Mulholland Drive '' (from the name of a litigious DVD ). It quashed a decision by the appeals court of Versailles that ruled that Digital Rights Management techniques that contradicted the "right to private copy" were illegal. Legal scholars noted the following:
In response, an amendment was added to the DADVSI law by the National Assembly, which established a "right to the exception for private copy". However, the scope of this right is unclear, since it is to be decided by a "college of mediators". The crux of the discussion on private copy is the nature of this so-called "right". One can interpret it weakly, as an exception to the general possibility for copyright holders to prevent any unauthorized distribution of their work, or strongly, as a prohibition for copyright holders to use technical means for preventing private, legal, copy. The "three-step test" was also copied into article "1 bis" of the draft law, which updates CPI L122-5. POLITICS Legislative process The initial draft of the law was proposed in 2003 by then Minister Of Culture Jean-Jacques Aillagon (UMP). Due to various circumstances, including the replacement of Aillagon by Renaud Donnedieu De Vabres (UMP), the bill was presented very late to the French Parliament , and was initially to be examined in the National Assembly on December 20 , 21 and 22, 2005, just before the Christmas vacations. The government (the cabinet of ministers, as represented by the Minister of culture) had declared the law to be urgent, which means, under the Constitution Of France , that the law would be examined only once by each house of Parliament; the reason given by the minister was that France was threatened by the European Commission with sanctions if it failed to implement the directive. Despite being initially presented as a technical text, the law became hotly controversial, being perceived as criminalising Internet users for sending files of copyrighted works to each others, as well as being a threat to for the private use of the owner of the record, which is currently authorized by CPI L122-5. On March 14 , 2006 , on behalf of the National Assembly law commission, deputy Christian Vanneste (UMP), took out the only amendment which would have permitted to copy at least once, for private usage, work which had been legally acquired (CD, videogram, etc.) This withdrawal of the amendment was presented to be in accordance with a recent court decision from the '' Cour De Cassation '' stating that copying DVDs for private use is not an automatic right; this decision cited the not-yet-transposed directive and the "test in three steps" from the WIPO treaties. A "college of mediators", composed in part of judges, will examine each issue on a case-to-case basis. See 1 . The examination of the draft law by the National Assembly, initially seen as a quick affair just before the Christmas break, was marred by several incidents, the best known being the vote of the first amendment of the "global license" (see below). Supplemental sittings of the Assembly had to be alloted in March in order for the law to be fully examined. Prior to the examination of the law by the assembly in session, the draft bill had been sent to the Commission of Law, without any review by the Commission of Cultural Affairs, as would have been expected of a text presented by the Minister of Culture and pertaining to artistic works; this procedure was deplored by some deputies. Deputy Christian Vanneste was commissioned to report on the law. Deputies from the opposition ( PS , PCF , Greens ) as well as the junior majority coalition partner UDF deplored that such a highly complex law was being rushed through Parliament. On December 21, then supported a motion for sending the draft law back to examination in parliamentary commission. However, the Minister of Culture opposed the move, stating that he hoped that the "solid parliamentarians from UMP" would not vote the motion {Link without Title} — a move interpreted as a quasi-order to the deputies from his party not to vote the motion. An amended draft law was approved by the National Assembly on March 21 , 2006 , by 296 votes for against 193. The UMP (right-wing), which has the Absolute Majority at the National Assembly , voted in favour, while the left voted against it. MPs of the center-right UDF voted either against the text or Abstained themselves 2 . The Senate is scheduled to examine the law in session on May 4, 9, and 10, 2006. The Senate sent the bill before the Commission of Cultural Affairs, which commissioned Senator Michel Thollière to report on it; the Commission heard Minister de Vabres on April 4. The Commission recommended a number of amendments. The text is then likely to go before a mixed commission from both houses of the French Parliament, and then be submitted to final votes — unless the ''gouvernement'' lifts urgency, which would involve further readings by both houses. After the final parliamentary vote, the law will be submitted to President Jacques Chirac for signature; however, since a number of parliamentarians have announced that they wish to get constitutional review on the law, it is likely that the law will be submitted to the Constitutional Council before presidential signature. Political importance At first sight, the DADVSI law was not meant to be a disputed legal text: it deals with fairly technical legal points. It was, however, turned into a political hot topic featured in major newspapers and national television. The first draft of the DADVSI law criminalized peer-to-peer exchanges of copyrighted works (or, more precisely, copyrighted works whose licenses did not allow such exchanges). The case was made in Parliament that million of French Internet users, especially among the young, currently traded files on computer networks and that it was thus unrealistic to turn them into felons. Since subsequent reading coincided with the examination of a controversial youth workforce clause known as the CPE , the opposition argued that the government was at war with the youth. The DADVSI law was used as a platform for various groups or parties for demonstrating opposition to the government policies:
Since Bayrou, Dupont-Aignan and Boutin are probable contenders in the 2007 Presidential Election , one may argue that DADVSI was one of the first rounds of the presidential campaign. Lobbying Some members of the French parliament, as well as other observers, publicly decried intense lobbying on the part of various groups and industries. Bernard Carayon , UMP deputy for the Tarn '' Département '', denounced lobbying, pressures and even blackmail on the part of certain groups. Alain Suguenot , a supporter of the global license, UMP deputy for the Côte D'Or département, hinted that some groups or societies supporting spectacles had threatened to withdraw their support to spectacles in the consistuencies of deputies voting in favour of the global license; Suguenot, who is also mayor of the town of Beaune , indicated that his town would no longer support a cinema festival and would replace it by something related to computing and Internet technologies. Minister of Culture Renaud Donnedieu de Vabres was criticized for being too close to some industry groups.
Pascal Rogard, in turn, denounced on his blog the action of "hidden lobbies" that, under the guise of defending the right to private copy or free software, were in reality against copyright and artistic creation. Some amendments to the law (150/151, 267) were called by some parliamentarians, as well as some other observers, the "Vivendi-Universal amendments", because they were allegedly inspired by the entertainment giant. The free software advocate group EUCD.info denounced the fact that the lobbyist for some industry group was allowed into the "four column hall", a room in the Assembly building whose access is normally restricted to deputies and journalists. Confusion Minister Donnedieu de Vabres was criticized by parliamentarians for lack of preparation. For instance, François Bayrou , head of the center-right UDF party, criticised how the minister submitted a last minute pair of amendments of seven pages completely changing the criminal penalty system applicable to illegal copies of copyrighted material, and for creating a de facto "police of the Internet". He pointed out that modifications of such an importance should be examined in commission. On January 3, 2006, in his yearly speech of wishes adressed to the President Of The Republic , president of the National Assembly Jean-Louis Debré (UMP) denounced the usage, by the government, of the procedure of urgency, which he claimed was used excessively often. He also denounced how the government frequently sent hastily redacted draft laws to Parliament, then had to send amendments in order to correct its own texts; specifically mentioning DADVSI, he deplored that the government had sent two four-page amendments in the middle of the examination of the text, alluding to the same amendments that Bayrou had denounced. {Link without Title} In its March 15, 2006, edition, the '' Canard Enchaîné '' investigative weekly reported that Debré had complained that Donnedieu de Vabres was "a zero, who put us in the shit and, from the start, dragged us into an adventure". THE DRAFT LAW AND THE PROPOSED AMENDMENTS The "Global license" One alternative proposal to the original draft law was, instead of criminalising Peer-to-peer users, to make peer-to-peer exchanges legal, in exchange for a fee on broadband Internet subscriptions, which would go to fund the artists and authors. This is known as the "global license" or "legal license". No specific amount of fee was discussed in the law, but it was meant to be approximately €7 per month for a broadband connection. French broadband connections typically cost €30 a month for rates up to 16 megabits per second, digital TV and unlimited VoIP phone calls to France and even foreign countries. Proponents of the law contended that:
Opponents contended that:
In the evening sitting of the Assembly on March 21, the first of the series of amendments establishing the global license (identical amendments 153 as proposed by UMP deputy ) was voted by a 30-to-28 margin [http://www.assemblee-nationale.fr/12/cra/2005-2006/109.asp], much to the dismay of Culture Minister Donnedieu de Vabres (seen blowing out of anger in the Assembly's video broadcast). The global license proved difficult to handle for the government. It was initially thought that the minister would request another examination of the controversial amendment by the Assembly; however, the head of the UMP group in the assembly, Bernard Accoyer , stated that the French Parliament had demonstrated that it was not a ''chambre d'enregistrement'' (a chamber for registering the wishes of the executive) and pointed out that the text was only at the beginning of its examination by Parliament, which has two houses, which seemed to suggest that he expected the amendment to be struck down in the Senate. {Link without Title} The examination of the text by the National Assembly resumed in March. The Minister of Culture announced that the government would use its prerogative to withdrawn its own draft law in order to withdraw article 1 of the law, which was the article to which amendments 153/154 applied, and propose in its stead a "1 bis" article. This move was supported by President of the National Assembly Jean-Louis Debré , who exceptionally presided the sitting; Debré cited precedent for such actions to deputies questioning the constitutionality of the action. However, the next day, the government announced that it would not withdraw the article, following from a communication by president of the Constitutional Council Pierre Mazeaud that the move's constitutionality was unclear. The Assembly then proceeded with the remaining amendments to article 1, then, expectedly, voted down article 1, then examined article "1 bis". The "global license" was thus removed from the text. Interoperability and Apple controversy The DADVSI law grants legal protection to Digital Rights Management "technical protection methods" (defined in article 7); that is, it contains clauses criminalizing circumvention of DRMs (articles 13 and 14). The initial draft law was heavily criticized for the vagueness and wide scope of the anti-circumvention clauses. It was feared that:
Since the personal computing software industry in France is heavily dominated by a few companies (such as Microsoft and Apple Computer ), which also provide DRM systems, it was feared that the law would reinforce these dominant positions, and also prevent competition from free software. Politicians across all French political parties have declared free software to be important for France, since it provides competition in a field dominated by extra-european corporations. It is officially considered instrumental in controlling the IT expenses of public administrations. For these reasons, politicians from several parties (among whom Alain Carayon and Richard Cazenave from the ruling right-wing UMP , François Bayrou , president of the center-right UDF ) have pushed amendments aimed at ensuring interoperability of DRM systems. These amendments were adopted by the Assembly. These amendments state that:
It is unclear, though, whether these clauses would apply to DRM providers that would not choose to avail themselves of the specific legal protection that the law grants to DRMs. That is, it is unknown at this point whether a licence agreement clause claiming that no part of a system, format or protocol is deemed to implement a DRM could exempt DRM providers from having to provide interoperability information. These clauses proved controversial, mostly in the US press, where analyses provided by various interest groups claimed that they were directed at Apple's Carlos Gutierrez declared that it would look at the law closely and support intellectual property rights, a comment widely interpreted to be supportive of Apple. {Link without Title} The reaction from Apple and the US government was highly controversial in France. The Odebi league, a citizen's action group defending the rights of Internet users, told Apple to "mind its business and not meddle into the French legislative process" and pointed out that "if Apple wishes to do business in France, it has to respect the rights that the French enjoy" [http://tf1.lci.fr/infos/multimedia/0,,3292089,00.html ; the league also issued a communiqué titled ''Guterriez go home'' . Deputy Paul published a communiqué meant to explain the intents of French lawmakers to Americans, without the media filtering. It is unclear what result these US interventions will have. NOTABLE CHARACTERS AND GROUPS Notable characters in the political debate included:
Pressure groups:
REPRESSED ACTS Downloading music is now punished of a 38 euro fine (150 euro if giving access to the downloaded copy on a peer-to-peer program). In the December version, they were punished even more harshly, with as much as 3 years of prison and a 300,000 euro fine - a sentence which now applies itself to someone editing or diffusing software allowing "illegal downloading of protected works" (this has been called by detractors the " Vivendi amendment", as a sign of the influence of the music industry lobbying). The Socialist Party and the Greens declared that this disposition endangered the possibility of Free Software . The minister of culture Renaud Donnedieu De Vabres said that "the record of infractions will be operated by the peer-to-peer programs which downloads the IP Address of the criminal". Someone detaining software allowing to bypass Technical Protection Measures (TPM) may have a 750 euro fine; a " Hacker " who decrypts TPM data risks a 3,750 euro fine. People diffusing such software risks six months of prison and a 30,000 euro fine. Private copies are illegal. A college of mediators, at least partly composed of magistrates, will define the precise definition of this measure (the number of private copies permitted under fair use; if DVD copying will be permitted under certain conditions). However, the notion of " Interoperability ", excluded of the December 2005 text, has been finally voted. Editors of protected products are encouraged to allow various uses of the product (copying to CD MP3 legally downloaded, for example). However, it is unknown how this "principle" will be composed with the prohibition of private copies 3 . REFERENCES
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