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Cablegate: Court Upholds French Copyright Law

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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 SENSITIVE PARIS 05242

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UNCLAS SECTION 01 OF 03 PARIS 005242

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DEPT FOR EB/IPC AND EUR/WE
DEPT PLS PASS TO USTR FOR JSANFORD/VESPINEL/RMEYERS
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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

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