Memoire Online - La gestion des DRM en perspective

So that a work of the spirit is protected by the royalty, one needs that it is original, i.e. it is the reflection of the personality of the author, of a clean creative activity. Thus, the author of a work, in French right, has at the same time moral and patrimonial rights^243(*) on this one. However, the article L. 122-5 of CPI also fixes and in a restrictive way of the exceptions not requiring the authorization of the author for the user of work.^244(*) It will have been included/understood, it acts of « private and free representations carried out exclusively in a family circle » and of « copies or reproductions strictly reserved for the private use of the copyist and not intended for a collective use ». ^245(*)

However in compensation of the damage undergone by the have-rights the legislator instituted a remuneration for private copy taken on any support of recording virgin and distributed between having the right of works and services fixed on the sound records or the videograms.^246(*)This remuneration being distributed between the manufacturers, the importers and the people realizing of intracommunity acquisitions on the sound and audio-visual virgin supports of recording.^247(*) It is about a contractual remuneration function of the type of support whose collection and distribution are made by civil companies of collective management.^248(*)

Remuneration for private copy^249(*) of sound records being realized by the SORECOP with a mode of distribution of the perceived sums of 50% for the authors 25% for the producers of sound records and 25% for the producers of videograms. COPIEFRANCE deals with perceiving the sums due to the title of the audio-visual private copy. Operation is slightly different in measurement or the scale is 33,33%. The first third going to the companies of authors, the second at the companies of artist-interpreters, the last at the companies of audio-visual producers.

SORECOP transfers:

50% with the college of authors (SACEM-SDRM, SACD, SCAM)

25% with the college of artist-interpreters (ADAMI, SPEDIDAM)

25% with the college of producers (SCP, SPPF, SCPA).

Copie France transfers:

1/3 with the college of authors (SACEM-SDRM, SACD, SCAM)

1/3 with the college of artist-interpreters (ADAMI, SPEDIDAM)

1/3 with the college of producers (PROCIREP/SCPA).^250(*)

As example, the SACEM charges the rights of the authors of music each time there are representation or reproduction of works which it manages. It in particular authorizes, in the form of contracts, the public diffusion of protected works. It is also charged to charge the royalties near the users. The amount of these rights being given according to the service rendered by the music. It is generally about a percentage on the trading incomes when the music is the essential object and of a fixed price when the music has only one role additional.^251(*)

With the title of the year 2002, the amount of the boxed rights was 672,4 million euros, in increase of 5,4% compared to 2001.^252(*)

The principal mission of the SACEM being to distribute with the authors, adapters, type-setters, arrangers, author-realizers and with their editors the rights which return to them.^254(*) The royalties income is thus distributed in the following way: 1/3 is versed with the author, 1/3 with the type-setter and 1/3 with the editor. When this same work is reproduced on CD, an audio or video cassette, a multi-media support, the «keys» of distribution are this time based on an agreement defined as a preliminary between all having them right of work.^255(*) It distributed thus, after deduction of the overheads and the funds devoted to the social action and cultural 530,8 million euros.

The installation of a system of management of the DRM, potentially attentatoire with the free right of private copy and thus with the right of the user on the other hand will reinforce the control of the author on the exploitation of his work to the title of remuneration for private copy. Indeed, at present and as indicates it the article L. 311-5 of CPI,^256(*) one is in a contractual system of management. However, a system of GDN allows because it is its vocation first to control the use which can be made numerical works and by allowing there the installation of a system of management of remunerations proportional to the number of copies carried out.

Like points out it professor Ginsburg, the right of access would allow a greater currently possible control than that: « The reproduction right, and its corollary, the distribution right, gave the copyright owner control over the making and dissemination off copies, goal ounce has particular Copy was sold, the copyright law did not constrain the purchaser' S further provision off that Copy ». ^257(*)

More generally, it is the problems of a change of paradigm with the numerical one which is posed. European Commission A included/understood well besides when it suggests a European legislation on the governorship of the collective trust companies.^258(*)

Indeed, it notes that « the domestic market became in a big part the framework for the management and the use of the royalty and the close rights (...) Under these conditions, an effective management of the rights is necessary to ensure the correct operation of the domestic market in this field. Moreover, it should be made sure that the management of the rights adapts to the new situations, as the request increasing for Community license for the use of certain rights and ensures a balance between on the one hand, the necessary protection and remuneration of the authors and the artists and on the other hand, the requests of the commercial users ».^259(*)

This request being relayed more and more by significant actors such as Yahoo, OD2, AOL, Cisco which « asked the European ministries for the communication joined together in Ireland on last 22 April, to work with the standardization of their legislations in terms of remuneration of the artists »^260(*) so, for example, to allow them in the long term, to launch services of music to Europe.

* ²⁴⁸ On the question of the relationships to the right of the competition : CSPLA, Author's copyright and artistic and right of competition, February 2004, p. 21-28.

* ²⁴⁹ Remuneration for private copy was founded by the Law Lang of July 3, 1985 in order to compensate for the losses which generates the copy by the private individuals of sound records and the services recorded and diffused by the radios and televisions. http://saceml.deepsound.net/index.html

* ²⁵² The rights coming from the producers of sound records, of the editors of videograms, multi-media Internet, the supports as well as private copy, are in rise of 20,5%. They account for 24% of the rights of the SACEM, against 21% in 2001. Rights relating to the sales of discs: in progression of 10,2%, particularly favorable result in a very disturbed international market and in fall of- 9%. Rights of the sector of the video: record a strong progression (+35,7%), because of the sales turnover generated by the DVD. Rights coming from the exploitation of musical works starting from Internet: in evolution very favorable, especially in the field of telephony with the remote loading of ringings for the portable telephones (1,3 million euros). On the other hand the rights coming from the supports multi-media are falling. The private Copy: the total progression is +68,5%. The sound private copy represents the ¾ boxed rights. www.sacem.fr

* ²⁵⁷ Julien Lacker, works in line in compared right: rights American and French, May 2003, p. 28. www.juriscom.net

* ²⁵⁹ Royalties: the Commission suggests a European legislation on the governorship of the collective trust companies, DNN: IP/04/492, 19/04/2004,

* ²⁶⁰ Music on line: Yahoo vis-a-vis the complexity of the licenses in Europe, 27/04/2004, www.atelier.fr

La gestion des DRM en perspective

§2- DRM and Rémunération