DADVSI - Copyright Exceptions

Copyright Exceptions

Droit d'auteur (the Author’s rights) is an exclusive right of the author. However, there exist in French law a number of legal exceptions to this exclusive right, somewhat similar to the US notion of fair use. These are listed in CPI L122-5, and article 1/1 bis of the DADVSI law alters these exceptions.

The law first expands the exceptions:

• It introduces an exception for education, starting from January 1, 2009: it allows the representation or the reproduction of short works or extracts of works not meant for educational use if the following conditions are meant:
  • these are used solely for purposes of illustration of analysis within education and research, excluding all recreational activity
  • the public is strictly restricted to a majority of pupils, students, teaching and research staff directly concerned
  • no commercial use is made
  • a negotiated remuneration compensates these uses for copyright holders.
• It explicitly allows for transitory and technical reproductions, e.g. web caches.
• It allows specialized facilities for the handicapped to freely reproduce and represent works, e.g. by making audio recordings, Braille versions. The electronic files used for such works may be deposited at an administration for safekeeping.
• It allows public libraries, museums and archives to freely reproduce works for purposes of conservation or preservation of onsite consultation.
• It allows the information press to freely show a reproduction of a work of art (sculpture, painting, architecture…)
  • for purposes of immediate information,
  • if the work of art is directly in relation with the information
  • provided that the author is clearly identified
  • excluding works that themselves aim at reporting information (so a newspaper cannot claim to be able to copy freely press photographs)
  • within reasonable bounds (number of illustration, format).

However, article 1/1 bis also introduces the Berne three-step test directly into French law:

The exceptions enumerated within this article cannot hamper the normal exploitation of the work, neither can they cause an undue loss to the legitimate interests of the author.

This clause is highly controversial. Members of the opposition such as Patrick Bloche have argued that the Berne three-step test may be imposed onto states, so that their legislation conforms to the test, but not onto individual citizens. They argue that the vagueness of this test makes it impossible for citizens to know what is allowed and what is disallowed, whereas counterfeiting of copyright works may be a felony offense, and thus that the law is unconstitutional because it is unintelligible. (In December 2005, the Constitutional Council of France declared clauses in a tax bill to be unconstitutional because they were unintelligible. )

A notable and exception has been raised by the General Prosecutor of Paris, who allowed bank FINAMA (part of the French insurer GROUPAMA) to scupper a $200 million software piracy trial for the sake of bank secrecy.

In France, the Cour de Cassation and an Appeal Court have dismissed an EUR 520 million software piracy case, ruling that U.S. Copyright certificates were not providing any protection and that software sold by its author during a decade in more than 140 countries does not deserve the "originality" criteria because it was "banal", prior art in the market segment being already available .

In the light of this judicial decision, the jurisprudence is unclear as there is little software able to claim being the first of its kind.