This record is a partial extract of the original cable. The full text of the original cable is not available.

221531Z Mar 06

UNCLAS SECTION 01 OF 02 PARIS 001847 
 
SIPDIS 
 
SENSITIVE 
 
DEPT FOR EB, EB/IPE, EUR/WE 
DEPT PLS PASS USTR FOR JSANFORD/VESPINEL/RMEYERS 
COMMERCE FOR SJACOBS, SWILSON, PNAAS 
 
E.O. 12958: N/A 
TAGS: KIPR ETRD FR
SUBJECT:  FRANCE'S COPYRIGHT BILL PENALIZES ILLEGAL 
DOWNLOADS; INTRODUCES INTEROPERABILITY OF DIGITAL CONTENT 
 
REF:  PARIS 8626 
 
NOT FOR INTERNET DISTRIBUTION 
 
¶1.  (SBU) SUMMARY.  A final text for France's new digital 
copyright law was voted by France's National Assembly on 
March 21, following months of fierce debate over how best to 
balance consumer rights against copyright in the Internet 
age.  The complex draft bill, designed to bring France into 
line with a 2001 EU directive, outlaws the downloading and 
copying of commercial DVDs and CDs, provides an exception 
for very limited private use, and establishes fines and 
prison sentences as punishment for offenders.  The bill, 
approved 296 to 193, further provides for the establishment 
of a "college of mediators" to decide on copyright 
exceptions.  Finally, the new law insists on the 
"interoperability" of the Apple iTunes Music Store with 
other music portals such as Sony, Virgin and FNAC, thus 
bypassing digital rights management (DRM).  What was 
originally seen as an opportunity to adapt France's 
Intellectual Property Code to the digital environment and 
combating piracy and counterfeiting has become a highly 
complex, technical text, incomprehensible even to the most 
specialized lawyers.  The debate is therefore far from over 
as the draft bill moves to the Senate in May, where 
parliamentary staff is far more knowledgeable on high-tech 
and intellectual property issues than the National Assembly. 
End Summary. 
 
The new bill: an embarrassment for the Government 
--------------------------------------------- ---- 
 
¶2.  (SBU)  The Law on authors' rights and related rights in 
the information society (called DADVSI for short in French) 
is the French Government's third attempt to transpose the 
2001 EU Copyright Directive.  Begun in 2001, the debate on 
the draft bill was characterized by mixed messages and 
confused strategies.  Before being voted by the National 
Assembly on March 21, the government had successively 
proposed watering down fines and prison sentences for 
illegal downloading, withdrawn a proposal to legalize the 
copying of a movie and music files from the Internet via a 
flat tax (which legislators had seen as popular with youth 
voters), and shrouded in confusion a proposal to make music 
files playable on any system. 
 
Penalties for  illegal downloads 
---------------------------------- 
 
¶3.  (SBU)  In its current form, the DADVSI allows for a jail 
term of up to six months and a fine of 30,000 euros (USD 
37,000) for those who supply software enabling users to 
break copyright protection on DVDs and CDs, making them 
available on the Internet. Furthermore, people possessing or 
using this software to remove copyright protection will face 
a fine of 750 euros, while hackers caught working 
individually to break the copyright on discs will face a 
fine of 3,750 euros.  The first-time offender downloading 
tunes or a film will be fined 38 euros.  U.S. industry had 
lobbied discretly to ensure that "habitual" copiers were the 
target of enforcement. 
 
Copyright Exceptions 
-------------------- 
 
¶4.  (SBU)  One of the key debates in the draft bill was the 
nature of the private copy:  was there to be legislation 
that legalized a private copy or was the "exception" to the 
law to be maintained?  The current draft bill has not 
legitimized the private copy, a concept that was upheld 
recently in a court case over illegal copying of a DVD of 
David Lynch's 2001 film Mulholland Drive. U.S. industry had 
appealed the earlier result.  France's top appeal court, the 
Cour de Cassation, ruled in February 2006 that there was no 
inherent consumer right to make copies, and that the private 
copy would remain as an exception. Previously, the 
government had offered (on shaky legal grounds) language 
that would have allowed five private copies per person. That 
language was struck following the Mulholland Drive ruling. 
 
¶5. (U) The draft bill instead will maintain the exception 
for private use. Instead, the decision will be left to a 
"college of mediators", on a case-by-case basis.  This 
"college" will also decide on copyright exceptions for 
libraries, journalists and handicapped people.  This new 
independent authority will include two magistrates, who will 
choose a third mediator, and will be responsible for 
checking the validity of each of the protection measures 
used. 
Attempting to impose a "universal" format 
----------------------------------------- 
 
¶6.  (SBU)  The new bill attempts to create a universal 
standard among commercial standards such as Sony Stage, 
Windows Media Player and Apple iTunes.  These formats, 
unlike compression formats such as MP3, are proprietary 
formats whose use is subject to a license or to the use of 
software belonging to those companies, the most obvious 
example being the format developed by Apple and intended for 
the Apple iPod player.  To address this problem and impose a 
universal system, the National Assembly bill is elusively 
calling for "interoperability" between these formats, "in 
the respect of copyright law."  It makes no reference to 
licenses but calls for all license holders (for any format) 
to make available to all technical measures necessary for 
"an open standard."  While this provision applies to all 
online music stores, Apple would undoubtedly be the most 
affected given its phenomenal market penetration in France, 
like elsewhere. 
 
Next Stop: The Senate 
---------------------- 
¶7. (SBU)    While industry observers originally thought 
France's upper house would rubberstamp the National 
Assembly's bill, the Senate is now likely to play a key role 
in the shaping of the DADVSI.  While some French National 
Assembly members have often been caught unaware of the 
international consequences of their actions, whether 
debating on the WTO negotiations or on high-tech issues, the 
Senate has proven a more acute and better-informed observer. 
The debate resumes in the Senate in May. 
 
Comment: Electioneering and Lack of Expertise 
--------------------------------------------- 
 
¶8.  (SBU)  A French lawyer from Latham and Watkins told us 
on March 20 that he had the most difficult time digesting a 
draft law which combined electioneering with consumer 
rights, leaving aside all the important issues regarding 
intellectual property and licenses.  In his view, he said 
that the government had no business insisting a company 
share its proprietary format and accused the government as 
well as consumers' groups of pandering to youth 
voters/consumers at the expense of clarity.  We surmise that 
while consumer lobbies had a high impact on the posture that 
French National Assembly members presented to their 
constituents, corporate lobbies are likely to have more of a 
say in the French Senate in May.  Ironically, France 
intended to break new ground by introducing a "universal" 
standard to be copied by all.  Instead, it merely succeeded 
in combining a series of disjointed provisions -- changed 
time and time again -- giving the final product very little 
credibility. End Comment. 
Stapleton