La gestion des DRM en perspective

B- Directive 2002/58/EC and the LEN

Directive 2002/58 be to replace directive 97/66^120(*) and to specify and reinforce, in particular, in the sector of the electronic communications right to the life deprived in the data processing in personal matter. It should be the subject of a transposition in the national law through the law on the numerical economy.

1 - Directive 2002/58/EC

One will study some provisions of this one for then seeing how and when they can be applied in France.

This directive has as an aim principal to protect the personal data^121(*) in the electronic communications when it states that it: «applies to processing the data in personal matter within the framework of the supply of services of electronic communications accessible to the public on the public networks from communications in the Community ». ^122(*)

However, if one considers the definition of « communication », it is about « any information exchanged or conveyed between a finished number of parts by means of a service of electronic communications accessible to the public. That does not include/understand information which are conveyed within the framework of a service of broadcasting to the public via an electronic communication network, except insofar as a bond can be established between information and the subscriber or identifiable user which receives it ».^123(*) And in the case which concerns us of installation of systems of DRM, cannot one see in this definition the protection of a service of music in line in remote loading ? Indeed, one can consider that there is a substantial bond between the information transmitted by the user and the reception or remote loading of the musical file ? Same manner it seems to us that that can be the case within the framework of a service of purchase/film hiring on Internet for example. Thus, general protection resulting from directive 95/46 would be to some extent reinforced sectoriellement.

The bringings together and reinforcements in terms of data protection with directive 95/46 are numerous. For example, as regards data, article 6 (E) of directive 95/46 specifies « The Member States provide that the data in personal matter must be preserved in a form allowing the identification of the people concerned for one length of time not exceeding that necessary to the finality for which they are collected or for which they are treated later on » whereas article 6 of directive 2002/58 EC indicates as regards traffic « The data relating to the traffic concerning the subscribers and the users treated and stored by the supplier of a public network of communications or a service of electronic communications accessible to the public must unobtrusive or be made anonymous when they are not necessary any more to the transmission of a communication ». The similarities are large ; directive 95/46 covering in fact the whole of the obligations imposed on Directive 2002/58.

These provisions also present and are reinforced within the framework of the confidentiality of the communications when article 5 states that « Member States (...) prohibit with any other person that users to listen to, intercept, store the communications and the data relating to the traffic y related, or to subject them to any other means of interception or monitoring, without the assent of the users concerned except when this person is legally authorized there (...) ».^124(*)

Moreover, it is interesting to raise that the CJCE is, recently, pronounced on a purely prejudicial basis on the direct effect of certain provisions of directive 95/46/EC, which fixes the applicable general framework as regards protection of the private life. However, it admitted that certain provisions were stated in a sufficiently unconditional way and specifies to be able to be called upon by a private individual and to be applied by the national jurisdictions. Also, with Caroline Carpentier, one can wonder about the possibility of applying the same reasoning, by analogy, with the provisions of directive 2002/58/EC, which could be also seen recognizing a direct effect in so far as they answer the conditions fixed by jurisprudence.^125(*)

* ¹²⁰ Considering n° 4 of the directive of July 31, 2002  : «  (...) Directive 97/66/EC must be adapted to and the technology market trends of the electronic services of communications in order to guarantee a level equal of data protection in personal matter and life deprived to the users of services of electronic communications accessible to the public, independently of technologies used (...)«.

* ¹²¹ Article 1st subparagraph 2 of directive 2002/58 of July 31, 2002  : «  The provisions of this directive specify and supplement directive 95/46/EC  ».

* ¹²² Article 3, directive 2002/58 of July 31, 2002.

* ¹²³ Article 2 (D), directive 2002/58 of July 31, 2002.

* ¹²⁴ Article 5, directive 2002/58 of July 31, 2002.

* ¹²⁵ CJCE, November 6, 2003, C-10101 business, Bodil Lindqvist  ; Yannick-Eléonore Scaramozzino, Protection Of the Intellectual Property: Data protection in personal matter and Internet, 2003, www.scaraye.com/article.php?rub=6&sr=14&a=60