DADVSI - Legal Background

Legal Background

The title of the DADVSI law refers to droit d’auteur et droits voisins (authors’ rights and related rights). Authors’ rights, in French law, have two components:

• economic rights (droits patrimoniaux): the exclusive right of the author of a work of the mind to reveal this work according to his or her conditions (that is, for instance, by ceding this right to a publisher);
• moral rights (droits moraux), such as: the right for the author to obtain redress against others claiming to be the author of the work; these rights cannot be ceded.

This concept is reflected in the Berne Convention on Copyright. Copyright is a related concept, but pertains to Anglo-American common law; one notable difference is that copyright does not generally involve moral rights.

The legal clauses governing authors’ rights and related rights form the first book of the French Code of Intellectual Property (CPI). This article will thus refer to articles from this code as CPI Lnnn.

The notion of ‘author’ extends to that of composer (of music), playwright, painter, photographer, etc., though the law makes it a requirement that the work should be original (or show some supplemental originality, in the case of a derived work) in order to be protected. In practice authors often cede their rights to publishers, who then enforce the "exclusive right" and some are members of societies that enforce their rights on their behalf. The latter is de facto nearly compulsory in case of songwriters and composers, almost all of whom are members of Sacem.

Performers and publishers of audio recordings enjoy "related rights". These follow different rules and have a shorter duration than the rights of authors. In practice performers often cede their rights to publishers, or have them enforced by societies.

The exclusive right of the author is not absolute. According to WIPO treaties, local legislation may make exceptions to exclusive copyrights only if these exceptions fulfill a "three-step test": limitations and exceptions

• should only concern special cases;
• should not conflict with a normal exploitation of the work;
• should not unreasonably prejudice the legitimate interests of the right holder.

This is how the US doctrine of fair use is justified with respect to copyright treaties for instance. The 2001 European Directive on Copyright proposes a list of 10 exceptions to copyright that member states can choose to implement or not, in addition to one whose implementation is compulsory (this makes an exception for temporary technical copies, meant to address Web caches and similar systems).

Exceptions to copyright in French law are defined in CPI L122-5. Among them is the notable exception for private copies: French residents may freely make copies of works (except software) for their private use, and freely display those works within their family circle (which is interpreted to include friends), without the agreement of the copyright holder. However, French law includes a "tax on private copies" meant to address the losses incurred by copyright holders; this tax is levied on blank media (audio and video cassettes, CD’s, DVD’s, as well as memory and hard drives in portable media players). Normally taxation is reserved for legislation, a prerogative of the French Parliament, but a statute endowed an ad hoc commission to set the rates and conditions for this tax.

European directives are generally not directly enforceable in EU member states. They first have to be transposed into local law, generally by an act of the legislature of the member state. While they give a general framework and impose some options they may leave significant leeway: in the case of EUCD, for instance, the directive gives a list of optional copyright exceptions, and mandates appropriate legal protection for DRMs, without defining what constitutes an appropriate protection. Member states have to transpose directives within reasonable delays, or they face action by the European Commission. There may be subsequent litigation before the European Court of Justice if subsequent the implementation is deemed to be inadequate.

In March 2006, the Cour de cassation, France’s highest court in civil and criminal matters, ruled in a decision nicknamed Mulholland Drive (from the name of a DVD involved). It quashed a decision by the appeals court of Versailles that ruled that Digital rights management techniques that contradicted the "right to private copy" were illegal. Legal scholars noted the following:

• the manner in which the decision was presented indicated that it was a decision meant to establish doctrine (following the civil law tradition, French courts are theoretically prohibited from judging in the general case so as to establish case law, but in practice the Cour de cassation does so in certain decisions).
• the decision cited the "test in three steps" and the yet untransposed European directive on copyright as source of doctrine, whereas, some legal scholars argue, it is up to the legislature to decide how to apply such principles when making law, not to the courts.

In response an amendment was added to the DADVSI law by the National Assembly, which established a "right to the exception for private copy." However, the scope of this right is unclear, since it was to be decided by a "college of mediators", but it was suppressed from the final text of the law.

The crux of the discussion on private copy is the nature of this so-called "right". One can interpret it weakly, as an exception to the general possibility for copyright holders to prevent any unauthorized distribution of their work, or strongly, as a prohibition for copyright holders to use technical means to prevent private legal copies.

The "three-step test" was also copied into article "1 bis" of the draft law, which updates CPI L122-5. See Copyright exceptions.