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Cablegate: France's Digital Copyright Compromise Guarantees

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

281100Z Jun 06

UNCLAS PARIS 004458

SIPDIS

SENSITIVE

DEPT FOR E, EB, EB/IPE, EUR/WE
DEPT PLS PASS TO USTR FOR JSANFORD/VESPINEL/RMEYERS
COMMERCE FOR SJACOBS, SWILSON
DOJ FOR CHARROP, FMARSHALL, RHESSE
COMMERCE PLEASE PASS TO USPTO

E.O. 12958: N/A
TAGS: KIPR ETRD PGOV FR
SUBJECT: FRANCE'S DIGITAL COPYRIGHT COMPROMISE GUARANTEES
INTEROPERABILITY

REF A) PARIS 3153 B) PARIS 1847

NOT FOR INTERNET DISTRIBUTION

1. (SBU) SUMMARY. Following the June 22 conciliation meeting of
French Parliamentarians, a compromise draft of the copyright law has
emerged to be approved by vote on June 30. The compromise text
legitimizes the use of DRM (Digital Rights Management) technologies
to protect authors' rights, but retains a requirement that companies
using these technologies provide information necessary for rivals to
develop compatible players and music stores. The compromise text
falls short of defining interoperability, but gives inordinate
powers to the new regulatory authority set up to enforce the
interoperability requirements. It remains to be seen which other
countries in the EU will want to follow the French example. Belgium
and Denmark have already indicated their enthusiasm for this French
precedent. END SUMMARY.

Forcing a political compromise
------------------------------
2. (SBU) A conciliation committee of seven National Assembly
members and seven Senators convened on June 22 to reconcile two
versions of the French Digital Copyright Bill, in particular to
address the interoperability requirements, which have been the most
controversial element of the bill. The Senate had considerably
toned down the National Assembly's "revolutionary" version of
interoperability, forcing companies to share the secrets of their
exclusive online music technology in order to allow competitors to
make compatible digital music players. Parliamentarians on both
sides of the political fence thought the divergences deep enough to
require a second reading. However, the government, which controls
the legislative process, decided to stick to its current
"fast-track" emergency procedure, which requires only one reading by
both houses. The compromise text will be subject to a final vote in
the National Assembly and the Senate on June 30, the last day of
this Parliamentary session.

Interoperability upheld, but not defined
----------------------------------------
3. (SBU) The June 22 compromise text leans more to the pro-user
National Assembly version as opposed to the more pro-owners rights,
pro-business version of the Senate. The principle of
interoperability has been treated as a "given," according to French
copyright lawyers we contacted on June 27. Therefore, the
conciliation committee preferred to focus on the practical and
effective means of "guaranteeing" interoperability, rather than on
defining it.

4. (SBU) The text establishes a new Regulatory Authority for
Technical Measures with the power to interpret and enforce the
principle of interoperability and the right to private copy. To the
original five members of the new authority, the conciliation
committee has added a sixth specialist in information technologies.
The new authority will keep its broad mandate from the National
Assembly version, allowing it to issue injunctions and fines, which
could represent up to five percent of the global pre-tax turnover of
a company, in some cases, or up to 1.5 million euros in other cases,
something no other independent authority can do under French
administrative law. The new authority also has the power to defer a
case to the French Competition Council.

-------
Comment
-------
5. (SBU) The final text is likely to pass solely with the support
of the majority UMP party parliamentarians on June 30. However, the
new legislation on Author's Rights and Related Rights in the
Information Society, originally designed to bring France in line
with the 2001 EU Digital Copyright Directive, clearly goes beyond
the directive in its defense of the right to interoperability and
private copy. The European Commission will have the last word on
whether France's transposition is in conformity with the EU
Copyright Directive. It is equally unclear whether French
implementation of the directive is in accordance with the country's
international commitments, including those stemming from the Berne
Convention. French copyright lawyers have noted that the French
text made no direct reference to any international agreement. At
this point, the French digital copyright bill raises more questions
than it answers, especially since its enforcement will ultimately
depend on future regulatory implementation and on a new authority
vested with unprecedented powers.

Stapleton

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