La gestion des DRM en perspective

2 - The LEN

The LEN^126(*) has for main goal the transposition of European Directive 2000/31/EC of June 8, 2000 on the electronic trade. This law also aims at partly transposing European Directive 2002/58/EC from July 12, 2002 on the personal data protection in the electronic communications.

May 13, 2004, the senators adopted, following the equal Joint Committee and after the examination in public by the French National Assembly on 6 last May, the bill for confidence in the numerical economy^127(*) which specifies, in particular, the obligations of the people receiving benefits.

Indeed, if at the beginning weighed on those on a general obligation of monitoring, the senators reconsidered this provision and the people receiving benefits are henceforth subjected to no general obligation to supervise information which they transmit or store. Nevertheless, the judge will preserve the possibility of imposing such a measurement of monitoring, targeted and temporary. ^128(*)

The notification with the FAI or the shelterer becomes obligatory becoming of this fact an obligatory stage before a possible action at law.^129(*) It obliges to notify before seizing the judge. The deputy minister considers that is to the person receiving benefits to decide if it takes action pursuant or not at the request of withdrawal of the denounced contents, and to find itself then if necessary in front of the judge if it does not take action pursuant.

In the same way, the initial provisions concerning filtering of the contents they were also modified. The text provides that « the legal authority can prescribe in summary procedure or on request (...), all measurements suitable to prevent a damage or to put an end to a damage caused by the contents of a service of communication to the public on line ».^130(*) The most convincing example of application of this measurement being the fight against the illegal exchange of musical files on the Web sites or the networks of P2P.

However, already, of interpretations different from these measurements divide the industry of the disc and the Association of the Suppliers of Access and Services Internet (AFA). Herve Rony « fear that the FAI are useful of this modification^131(*) for saying only, if the legislator removed this provision, it is that it had itself of the hesitations on the fact that measurements of filtering could have a direction. They will use that to justify their alleged impotence to set up the measurements requested by a judge ».^132(*) Whereas the AFA interprets the text like the suppression of «the possibility for the judge of ordering with a supplier of access to block the access to contents on line by its subscribers (...), the Senate «having made the choice rely on the capacities that the legal judge draws from the common right». ^133(*)

It will be also noted that the concept of public communication of the article 1st was modified compared to the text forwarded to the senate and that it is refers to « the exercise of this freedom can be limited only in required measurement, on the one hand, by the respect of, freedom and property of others, the pluralist character human dignity of the expression of the currents of thought and opinion and, on the other hand, by the safeguard of the law and order, the needs for national defense, the requirements of public utility, the technical constraints inherent in the means of communication, like by the need, for the audio-visual services, to develop the audio-visual production » and to continue by specifying that « the audio-visual services include/understand the services of audio-visual communication as defined in article 2 of this law as well as the whole of the services placing at the disposal of the public or a category of public of audio-visual, cinematographic or sound works, whatever the technical methods of this provision ». ^134(*)

The reference to the protection of the royalties being seems T it limpid insofar as it is well specified that it is a question of protecting from audio-visual works, cinematographic. It is well here the starter of a parallel with the concept of protection of works through technical measurements such as they will be enacted through the bill on the royalties.

* ¹²⁶ The Law on the Numerical Economy (LEN) http://ameli.senat.fr/publication_pl/2003-2004/144.html and www.senat.fr/leg/pjl03-144.html This Bill which should be definitively adopted at the end of April 2004 had a at the very least chaotic course: the text of the preliminary draft of law on the numerical economy goes back to mid-November 2002, the adoption in the Council of Ministers of January 15, 2003; the text adopted in first reading by the French National Assembly of February 26, 2003. Then, the text adopted by the Senate in first reading comes on June 25, 2003. Then, the text adopted by the French National Assembly in second reading on January 8, 2004 (Articles 1 to 14 - Articles 15 at end). Lastly, the text of the bill was forwarded to the Senate on January 9, 2004.

Complete file  : www.assemblee-nationale.fr/12/dossiers/economie_numerique.asp. The Law on the Numerical Economy finally was on adopted May 13, 2004 (Senate: Examination and adoption of the bill for confidence in the numerical economy Thursday May 13, 2004. final text n° 75 (2003-2004)

http://www.assemblee-nat.fr/12/dossiers/economie_numerique.asp)

* ¹²⁷ Ultimate episode, the parliamentary groups PS and PC announced that they will seize together the constitutional Council on certain provisions of the LEN, Estelle Dumout, Prochaine stage for the LCEN: the constitutional Council, May 13, 2004, www.zdnet.fr

* ¹²⁸ In the bill such as adoptee on May 13, 2004, that becomes article 6, Bill for confidence in the numerical economy www.senat.fr/pl/75-0304.pdf. Article (à) of the bill transmitted by the Senate in second reading, April 8, 2004, http://ameli.senat.fr/publication_pl/2003-2004/144.html.

* ¹²⁹ Ibid, article 6-5.

* ¹³⁰ Ibid, article 6-8.

* ¹³¹ Modification of the article 2bis8: «  The legal authority can prescribe in summary procedure or on request, with any person mentioned to the 1 and 2, all measurements suitable to put an end to a damage caused by the contents of a service of public communication on line, such as those aiming ceasing storing these contents or, failing this, at ceasing giving access of them  ». Text n° 144 (2003-2004) transmitted to the Senate on January 9, 2004, http://www.senat.fr/leg/pjl03-144.html the text adopted by the senate on April 8, 2004 indicates  : «  The legal authority can prescribe in summary procedure or on request, with any person mentioned to the 2 or, failing this, with any person mentioned to the 1, all measurements suitable to prevent a damage or to put an end to a damage caused by the contents of a service of communication to the public on line  » http://ameli.senat.fr/publication_pl/2003-2004/144.html. It is this text which was adopted on May 13, 2004, article 6-8, Bill for confidence in the numerical economy www.senat.fr/pl/75-0304.pdf.

* ¹³² Stephan Length, «We will be able to go in justice to ask a FAI to act against piracy», 09/04/2004, www.01net.com

* ¹³³ Guillaume Deleurence, the LEN more reconciling with regard to the FAI, 09/04/2004, www.01net.com

* ¹³⁴ Article 1st of the Bill for confidence in the adopted numerical economy on May 13, 2004, www.senat.fr/pl/75-0304.pdf.