La gestion des DRM en perspective

B- Directive IP Enforcement84(*)

Recently, the European Parliament adopted by 330 votes for and 151 votes against the directive on the application of the rights of ownership intellectual and industrial suggested on January 30, 2003 by the Commission the purpose of which is in particular to reinforce the fight against piracy and the counterfeit. ^85(*)

This one, then, was adopted by the Council of Ministers on April 26, 2004, for an effective application in 2006. ^86(*)

It will be noted that the Parliament in particular wanted to endeavor to sanction only the infringements carried out at commercial purposes when the directive indicates to considering 13 (a) : « the measurements envisaged in article 7, paragraph 2, with article 9, paragraph 1, and with article 10, paragraph 1 (a), of this directive should apply only to acts made on a commercial scale, without damage of the possibility that have the Member States to also apply these measurements to other acts.^87(*) The acts made on a commercial scale are those which are perpetrated in order to obtain an advantage economic or commercial direct or indirect, which excludes in theory the acts which are the in good faith acting fact of ultimate consumers ".

But the fact will be also mentioned that the Commission asks so that there be able to be one « (...) right of information, which makes it possible to obtain precise information on the origin of the goods or the litigious services, the distribution systems and the identity of the thirds implied in the attack ».^88(*)

In the same way, article 9 precise : « The Member States take care that, within the framework of an action relating to an attack with a right of ownership intellectual and in response to a justified and proportioned request of the applicant, the competent courts can order that information on the origin and the distribution networks of the goods or the services which carry reached to a right of ownership intellectual is provided by the contravener and/or any other person (...) » and to continue while indicating to subparagraph 2 to what this information will relate : « names and addresses of the producers, manufacturers, distributers, suppliers and other former holders of the goods or the services, as well as wholesalers recipients and retailers ». ^89(*)

It seems that this article 9 is inspired directly by the US legislation, also discussed (DMCA), which is used to obtain information in personal matter of the users of networks of file sharing to the contempt of the rules of respect of the private life. Moreover, Peter Schaar, Directeur of the equivalent of the CNIL in Germany (BnD) do not say anything others when it indicates that : «According to our interpretation, the suppliers of access and the shelterers belong to those which will have to yield with this rule, [the police chief declares,] what could involve a serious attack with the secrecy of the correspondences».^90(*)

Thus, the debate on the obligations of the FAI would be started again, they should in particular have a duty « to communicate the identity of the users (...) some are the laws of protection of the life deprived into force ».^91(*) But, it is true also that the Parliament specified by an amendment that « this does not constitute however a general obligation of monitoring of the thirds ».

Peter Schaar, stresses that « exact contours of this provision are still vague, so that it could as well target the pirates engaged in an industrial process of illegal copy, than of the private individuals who exchange private copies of work. In his opinion, this text is completely disproportionate ". ^92(*)

On the other hand, it would seem that the French government is not of the same opinion when he states in particular that this directive, once transposed « will support in particular the conditions of meeting and establishment of the evidence of the counterfeit, including through better information of the public authorities, the variety and the effectiveness of the provisional measures decided by the judge, as well as the civil and pecuniary sanctions in order to better compensate the damages. Supported actively by the French authorities, this directive will have to be supplemented by a national penal shutter, which is being prepared by the Member States, and will be the subject of a transposition as fast as possible ». ^93(*)

* ⁸⁴ European Commission, Directive of the EP aiming at ensuring the respect of the rights of ownership intellectual, 30.1.2003, 58 p., http://europa.eu.int/eur-lex/fr/com/pdf/2003/com2003_0046fr01.pdf

* ⁸⁵ The Parliament adopts the directive IP, Tuesday March 09, 2004, www.ratiatum.com; Yannick-Eléonore Scaramozzino, IP Enforcement Directive, 2004 http://www.scaraye.com/article.php?rub=6&sr=14&a=83 counters this Directive, Philippe Aigrain, http://www.sopinspace.com/~aigrain/fr/index.html#execution

* ⁸⁶ http://europa.eu.int/comm/internal_market/fr/intprop/news/

* ⁸⁷ A possibility remains nevertheless open, provision «  optional  » which leaves perplexed when with the final nature of these directives of harmonization of the national legislations within the European Union.

* ⁸⁸ Considering the 21, Council of the Union European, Proposal for a Directive of the European Parliament and the Council relating to measurements and procedures aiming at ensuring the respect of the rights of ownership intellectual - Text approved by the Permanent Representatives Committee, February 16, 2004, p. 7. Considering 22bis indicating as for him  : «  Without damage of any other measurement or measures corrective existing, the holders of the rights should have the possibility of asking an injunction against an intermediary whose services are used by a third to attack the patent right of the holder  ».

* ⁸⁹ Ibid, p. 17.

* ⁹⁰ Estelle Dumout, intellectual Property: Cnil German denounces a European draft Directive, Monday February 2, 2004, www.zdnet.fr/actualites/internet/0,39020774,39140024,00.htm

* ⁹¹ The Parliament adopts the directive IP, Tuesday March 09, 2004, www.ratiatum.com

* ⁹² Estelle Dumout, intellectual Property: Cnil German denounces a European draft Directive, Monday February 2, 2004, www.zdnet.fr/actualites/internet/0,39020774,39140024,00.htm

* ⁹³ Directive on the respect of the rights of ownership intellectual: the French government greets this Community projection in the fight against the counterfeit, Paris, April 30, 2004,

http://www.industrie.gouv.fr/infopres/pdf/dircontrefa300404.pdf