VZCZCXRO4027
RR RUEHAG RUEHDF RUEHIK RUEHLZ RUEHROV
DE RUEHFR #7633/01 3351403
ZNR UUUUU ZZH
R 011403Z DEC 06
FM AMEMBASSY PARIS
TO RUEHC/SECSTATE WASHDC 3508
RUCPDOC/DEPARTMENT OF COMMERCE WASHDC
INFO RUCNMEM/EU MEMBER STATES COLLECTIVE

UNCLAS SECTION 01 OF 02 PARIS 007633 
 
SIPDIS 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: ETRD ECON EFIN KIPR FR
SUBJECT: French Digital Copyright Law Demarche 
 
REF: A) STATE 190838 B) PARIS 6811 B) PARIS 5242 
 
¶1. (SBU) Summary: Per Ref A, Embassy officers have reiterated USG 
concerns relating to the proposed decree (Ref B), which would 
implement France's controversial new copyright legislation.  We will 
use the upcoming visit of DUSTR Veroneau December 8 to underscore 
the importance of this issue for the U.S.  French government 
officials continue to tell us they are open to concrete suggestions 
to minimize the impact on industry but time is growing short.  We 
understand the draft decree will be reviewed by an inter-ministerial 
committee starting the week of December 4 and that it could be 
approved by the Conseil d'Etat as early as January 2007.  End of 
Summary. 
 
¶2. (SBU) Embassy officers delivered Ref A demarche on the draft 
implementing decree of France's copyright law to Ministry of Culture 
cabinet advisor Marc Herubel on November 28, and to Trade Minister 
Lagarde's EU adviser, Eric Peters on November.  Additional meetings 
are scheduled with President Chirac's staff and with the Industry 
Minister's Legal Adviser.  We also briefed representatives of the 
Business Software Alliance (BSA) November 27.  In response to our 
concerns, Herubel explained that while he is open to suggestions 
regarding the draft decree, it could not contain any language 
contradicting or adding to the substance of the law.  He noted that 
the new Technical Authority will develop "jurisprudence" on a 
case-by-case basis and it is anticipated this will be elaborated 
further by decisions of the Cour d'Appel de Paris (appeals court) 
and the Cour de Cassation (court of last resort). 
Herubel informed us that an inter-ministerial process to review and 
approve the decree will commence December 4.  He added that there 
would be no other or additional decrees regarding the implementation 
of the law, with the exception of the decrees nominating the members 
of the TMRA (Technical Measures Regulation Authority).  Herubel 
concluded that Culture Minister de Vabres would like the new 
authority to be fully operational by the end of January, but Herubel 
doubts this will be the case. 
 
¶3.  (SBU) In our meeting with Herubel, he said that access of 
consumer groups to the TMRA would be limited to questions of 
"exceptions" to copyright, which in France also include the "right 
to private copy."  He confirmed that consumers groups would not have 
standing before the TMRA regarding interoperability issues. 
Finally, regarding trade secrets, Herubel explained that his 
Ministry had decided to allow the TMRA to determine the process of 
protecting trade secrets.  He noted that such decisions, either to 
keep documents confidential or not, would not be subject to appeal. 
(Note: France does not have legislation protecting trade secrets 
comparable to that which exists in the U.S. End note.) 
 
¶4.  (SBU) Herubel suggested three specific areas where U.S. comments 
could be helpful: 
 
-- As the TMRA will enforce the principle of interoperability based 
on the findings of "rapporteurs," who will determine whether 
specific technical measures are indeed sufficient to protect 
copyright, Herubel said specific language could be introduced 
detailing what are "permissible technical measures" (see Article 14 
of the law, L. 331-7); 
 
-- The guidelines on the scope of action of the TMRA and the 
rapporteurs are outlined in Art 331-19, para 1 and 4 of the draft 
decree.  Herubel welcomed our suggestions on guidelines/principles 
that could be used by the new authority to determine the efficiency 
and integrity of Digital Rights Management (DRM) systems. 
 
-- On compensation, Herubel suggested that we provide him with 
language to be added to Art 331-19, para 2 of the draft decree 
defining how to measure and determine what would be "just" and 
appropriate (e.g. true economic value) compensation. 
 
¶5.  (SBU) Eric Peters, a member of Trade Minister Lagarde's cabinet, 
explained that while the Ministry of Culture has the lead on the 
issue, the start of the inter-ministerial process will provide other 
Ministries, such as Trade and Industry, an opportunity to review and 
influence the proposed decree.  Peters and his staff will review the 
decree to determine in particular its compatibility with EU 
directives and WTO commitments.  Peters asked that we remain in 
close touch with the Trade Ministry in the coming weeks on this 
issue. 
 
¶6.  (SBU) Comment:  Although we were told by industry that European 
Commission officials have indicated concern with the French law, we 
understand the French have heard very little from the Commission. 
Continued sensitization of Brussels by a broad spectrum of U.S. and 
European industry of our concerns would be helpful.  BSA has 
informed us that in its view much more pressure needs to be exerted 
on the French to effect real change.  Additional guidance on these 
issues, as well as those identified by Herubel (compensation, 
permissible technical measures, DRM integrity/efficiency guidelines) 
would be appreciated.  We will continue to press our broader 
concerns with contacts throughout the French government as the 
inter-ministerial process reaches its end-game.  But we also take 
 
PARIS 00007633  002 OF 002 
 
 
note of Herubel's comment that many key questions are likely to be 
decided by jurisprudence that will evolve from decisions of the TMRA 
and the French courts. 
 
STAPLETON