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Lucia A Keegan  08/03/2006 09:47:07 AM  From  DB/Inbox:  Lucia A Keegan

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UNCLAS SECTION 01 OF 03 PARIS 005242 
 
SIPDIS 
 
SENSITIVE 
 
DEPT FOR EB/IPC AND EUR/WE 
DEPT PLS PASS TO USTR FOR JSANFORD/VESPINEL/RMEYERS 
COMMERCE FOR S JACOBS, S WILSON 
DOJ FOR C HARROP, F MARSHALL, R HESSE 
COMMERCE PLEASE PASS TO USPTO 
 
E.O. 12958: N/A 
TAGS: KIPR ETRD PGOV FR
SUBJECT: COURT UPHOLDS FRENCH COPYRIGHT LAW 
 
REFS: A) PARIS 4458 
B) PARIS 3153 
C) PARIS 1847 
 
Summary 
------- 
¶1. (SBU) The French Constitutional Court in a July 27 decision 
upheld the new copyright law, throwing out four provisions as 
unconstitutional.  Specifically, the court ruled that collaborative 
file-sharing, contravention of protected works online, and bypassing 
of technical protective measures should be treated no more leniently 
than other cases of copyright infringement.  Additionally, the court 
upheld forced interoperability, but added that there should be 
compensation. 
 
¶2. (SBU) Having survived an appeal challenging it on both procedural 
and substantive grounds, France's new copyright law will very soon 
be on the books, but it far from closes the debate -- or the 
confusion -- about the right to private copy and forced 
interoperability.  The next milestone worth watching will be the 
creation of the new Regulatory Authority for Technical Measures and 
the appointment of its decision-makers, since this new "legal 
monster" will have to decide such important unresolved matters as 
defining the principle of interoperability.  End summary. 
 
The Court Rules 
--------------- 
¶3. (SBU) Late on July 27, the French Constitutional Court released 
its much-anticipated ruling on the appeal submitted in early July by 
some 60 French parliamentarians against the new copyright law, 
originally designed to transpose the European Union Copyright 
Directive (EUCD).  Their appeal was focused on two issues: 
procedural objections as to how the law was passed with limited 
debate, and substantive objections charging that the law as passed 
catered to big companies and sacrificed consumer interests.  The 
court rejected the procedural objections and largely upheld the law. 
 In certain substantive areas, the court's ruling actually is a blow 
to those who brought the appeal, since it increased protections for 
rights-holders and raised fines for online infringement, i.e. 
illegal downloading. 
 
¶4. (SBU) Four years into the legislative process to transpose the EU 
Copyright Directive (EUCD), an originally straight-forward and 
technical effort to fight counterfeiting and piracy in the 
information society turned into a protracted battleground over civil 
liberties, privacy protection, interoperability and open-source 
software.  Although the much-debated bill cleared its last 
legislative hurdle with a successful vote in the National Assembly 
in late June, the proponents of the right to private copy and 
government-enforced interoperability felt the so-called "iPod law" 
was overly slanted toward business interests.  Not only did the 
court decision not satisfy them, but it also came down more harshly 
against file-sharing and internet-based copyright infringement than 
many expected. 
 
The court decides to leave all sides unsatisfied 
--------------------------------------------- --- 
¶5. (SBU) The Constitutional Court largely upheld the law, but ruled 
four provisions unconstitutional.  First, the court said that the 
interoperability provisions (namely those which require companies to 
ensure that digital files are playable on devices manufactured by 
other companies) need to be more clearly defined.  At issue was the 
proprietary software -- used frequently by online music stores, most 
notably Apple's iTunes -- to encrypt files so that they can only be 
played on some devices but not others.  As it emerged from the 
Court, the law would largely permit digital anti-piracy measures. 
However, device-makers could petition the soon-to-be-established 
Regulatory Authority for Technical Measures, if they fail to reach 
an agreement by direct negotiation with Digital Rights Management 
(DRM) rights-holders to share information which would allow access 
to protected files on their devices.  The regulatory authority could 
then force the technical protective measures to be shared in order 
to allow interoperability, but the Court made clear that any forced 
sharing of the technologies behind such measures should be 
compensated.  The Court decision was silent on who would decide on 
the indemnification, but one copyright legal expert thought such a 
decision would most likely be made by the civil court rather than 
the new regulatory authority. 
 
¶6. (SBU) Second, the court ruled that Articles 21, 22, 23, and 24 
were unconstitutional.  Article 21 would have exempted from 
anti-infringement provisions developers working on collaborative 
software, research or using file sharing to work on things not 
subject to royalties or any other monetary compensation.  The Court 
effectively erased this exception.  According to the court, such an 
exception would wrongly infringe the work's rights-holders, taking 
away coverage of their intellectual property just because they may 
have renounced any remuneration.  One copyright expert portrayed the 
elimination of the law's so-called "fair use" provision as a new 
problem of legal liability for file-sharers outside of the universe 
of commercial music, video, and other remunerated works.  Given the 
decision, any French developers working on such software could be 
sued by DRM software producers or copyright holders -- even when it 
concerns only software intended for non-copyrighted content. So, no 
matter whether someone in France uses peer-to-peer software for some 
distributed business model or just to share an un-copyrighted piece 
of music -- perhaps a work-in-progress willfully shared online by 
its author(s) -- it is illegal. 
 
¶7. (SBU) Articles 22 and 23 were declared unconstitutional because 
the Court ruled they unjustly lifted all penalties against bypassing 
technical protective measures, thereby removing the most basic 
intellectual property protections of such measures, when their 
circumvention is for the sake of interoperability.  The 
interoperability exception to the rule against changing (infringing) 
copyrighted works, namely technical protective measures, was 
supposed to open up competition and protect software developers. 
But the court deleted this exception by declaring it 
unconstitutional, effectively accepting arguments submitted in a 
brief to the court by the Business Software Alliance.  Much to the 
dismay of consumers and, in particular, the French Internet Music 
Users Association (Association des Audionautes), the court declared 
that hacking into a DRM just because a consumer finds that it lacks 
interoperability is unacceptable and, indeed, illegal.  Likewise, 
without prior authorization, it will not be possible to develop 
software that could interact with DRM-encumbered content.  This is 
as true for free software developers, who are sure to protest 
loudly, as it is for everyone else. 
 
¶8. (SBU) Lastly, the court ruled against Article 24, which violated 
the principle of equal protection under the law.  Legislators, 
arguing that online piracy was less serious than unlawful commercial 
reproduction of copyrighted works, had inserted a provision in 
Article 24 that would have punished internet users with fines of 
only 38 or 75 euros, scarcely more than a typical parking ticket. 
More serious penalties were to be reserved for "commercial" pirates. 
 The court struck down this provision.  As a result, online pirates 
or internet users who illegally download copyrighted materials can 
be sued under the default procedures for counterfeiting and risk up 
to five years in prison and 500,000 euros.  French Culture Minister 
Renaud Donnedieu de Vabres issued a communique criticizing this part 
of the court decision, saying he "deplored" the increase of 
sanctions against illegal downloading.  The compromise that the GOF 
had struck during the drafting of the law was designed, he 
explained, to "reserve the most serious penalties for the most 
serious crimes." 
 
A long and drawn out legislative process 
---------------------------------------- 
¶9. (SBU) This attitude was common throughout the parliamentary 
debate.  The implementation procedure of the EU Copyright Directive 
(EUCD) began normally enough in 2001-2002.  The initial draft law on 
authors' and related rights in the information society, or DADVSI in 
French, was jointly developed by the Government and the High Council 
on Literary and Artistic Work Property (also known as the High 
Council on Copyright), which represents the GOF, industry and 
consumers (but not internet users).  A change in the political 
majority from Socialist to center-right following the national 
elections of Spring 2002 and then the nomination of Renaud Donnedieu 
de Vabres as the new Culture Minister in 2004 contributed to the 
first of many delays. 
 
¶10. (SBU) By the time the DADVSI bill was finally presented to 
Parliament in late December 2005, France had already implemented the 
EU directive on e-commerce in 2004, citing as one of its goals to 
"restore confidence in e-commerce" and introducing the notion of 
"open standards."  According to a parliamentary staffer, the French 
e-commerce "precedent" encouraged the French National Assembly and 
Senate to "add their grain of salt instead of just rubberstamping EU 
implementing legislation" as they had often done in the past. 
Despite the fast track procedure chosen by the GOF, the resulting 
legislative process took another seven months and led to an almost 
complete overhaul of the original text, in what had by then become a 
highly controversial national debate. 
 
Legal monster of (yet another) regulatory body is born 
--------------------------------------------- --------- 
¶11. (SBU) Many French copyright lawyers have serious concerns about 
the enforceability of the law with its layers of provisions 
representing conflicting interests.  A new, and already much-decried 
"Regulatory Authority for Technical Measures" will be in charge of 
enforcing the right to private copy and interoperability.  When 
access to information essential to interoperability is denied, any 
publisher of computer software, any maker of a technical system, and 
any technical service operator can ask the regulatory authority to 
obtain that information from the rights holder.  Once initiated, 
they have two months to deliver the information and/or render a 
ruling.  At least that is how the law reads, but we have been unable 
to find a single defender of this new regulatory authority.  Instead 
we have a long list of lawyers and industry experts who fear this 
new "legal monster" with a poorly defined mission but extensive 
powers.  The State Council (Conseil d'Etat) will set by decree the 
rules of procedure for the new regulatory authority.  The deciding 
panel of six judges for the authority will consist of one judge from 
the State Council, one from the Court of Cassation (Cour de 
Cassation), one from the Accounting Court (Cour des Comptes), one IT 
expert appointed by the President of the Technology Academy, one 
representative of the High Council on Copyright, and one 
representative from the Private Copy Commission (set up some twenty 
years ago to monitor the right of private copy for music and video 
tapes). 
 
Comment 
------- 
¶12. (SBU) The new copyright legislation on authors' and related 
rights in the information society is now de facto law.  It will 
become law de jure once it is published in the French Official 
Journal in the coming days.  However, this is far from the end of 
the long debate over French copyright law -- a debate which is 
already being echoed elsewhere in Europe.  Despite the ruling of the 
Constitutional Court, many of the questions raised in France during 
the legislative process remain unanswered and are not likely to find 
a solution before the new Regulatory Authority for Technical 
Measures is called into play. 
 
¶13. (SBU)  During the frequently bitter parliamentary debate, the 
GOF appeased the advocates of private copy and interoperability by 
agreeing to include provisions that were in part struck down by the 
court.  Many of the surviving portions remain questionable. 
Ultimately, the new regulatory authority will have to take the hard 
decisions the Government refused to take.  End Comment. 
 
Stapleton