La gestion des DRM en perspective

Chapter 1- legal stakes related to the DRM

The acceptance of a system of GDN for the consuming users/must have as counterparts to reassure them on the whole of measurements which could installation to protect their private life. And, that they thus know the perimeter of the personal data likely to be the subject of a data-processing treatment, i.e. more precisely of the consolidations of information necessary to the execution of the contractual conditions of use of works than they will be able to buy, download, distribute.

Indeed, the essential stake which exists between DRM and PRM lies in the fact that it is at the same time necessary to be able to distribute digital components to individuals by authenticating them as such without for that making readable personal information of each system. It is in this balance that resides the right adequacy between respect of the private life and management of the numerical rights as we will see it below.

In this respect, it is interesting to read what Alan Greenspan said to the United States in 2003:

« Does yew our objectify is to maximize economic growth, are we striking the right balances off in our protection intellectual property rights? Are the protections sufficiently broad to innovation drank not so broad have to shut down follow one encourages innovation? Vague are such protections so that they produce uncertainties that raise risk premiums and the cost off capital? Do How appropriate is our current system--developed for has world in which physical have predominated--for year economy in which been worth increasingly is embodied in ideas rather than tangible capital? ». ^50(*)

and Jörg Reinbothe for the European Commission in 2002 :

« We must could rights and technology into perspective with one another. What are the desired results?

1. Content Firstly, to stimulate the creation off, and investment in, quality. This boat Be achieved by DRMs gold new business models alone (have alternate to copyright protection), goal through has balanced protection off intellectual property in combination with technological measures.

2. Secondly, we must enable legitimate accesses. This cal for prudence concerning the scope off exclusive rights and off technological measures ». ^51(*)

The protection of the private life is and remains a fundamental data in our companies and more particularly in the world electronic commercial. A study of PriceWaterhouseCoopers, in 2000, showed that two thirds of the questioned consumers: « would shop more online yew they knew retail sites would not C anything with to their personal information ». In the same way a Harris study, in date of 2002, indicates that major concerns of the Net surfers when with the risks of safety are related to: « companies trading personal dated without permission, the consequences off insecure transactions, and theft off personal dated ». ^52(*)

Ultimately, it is largely understood that the problems of the DRM are closely related to an adequate, balanced and proportioned management personal data of the various users on line.

Section 1- Between royalty and personal data protection

Since the adoption of expect Treaty ADPIC that each State must establish a protective legal status of the exclusive rights of the royalties and rights close, and especially since the adoption of Treaties OMPI of 1996, the legal protection of technical measurements became the international intellectual gun of the protection of these rights in the numerical environment. ^53(*)

Treaties OMPI of December 1996 traced, for the whole of the States, a legal model of protection of technical measurements of protection of the digital components, in particular with regard to the phase of distribution of this saving and the sphere in uses of the consumers. ^54(*)

Vis-a-vis these measurements, the principle of the respect of the private life^55(*) and data protection in personal matter remains him also a European requirement of first order like that was pointed out, in particular, with article 8 of the Charter of the basic rights like by the repeated assertions of the French national jurisdictions and in various situations. ^56(*)

§1- royalties in prospect

The European legislation enacted a whole of rules through directives in order to modernize the royalty, in particular by the Treaty of OMPI of 1996. However, those were not transposed yet what raises some difficulties in term of legislative balance. All the more, that the Commission has just proposed a new directive in this field which is the subject already of intense actions of lobbying.

With- the directive on the royalty and the French bill

The French bill prepared by the Ministry for the Culture should make it possible, if it is adopted relatively quickly, to harmonize in this field the royalties the European legislation.

1- the directive on the royalty

The transposition of directive 2001/29 EC relating to the harmonization of certain aspects of the royalty and the rights close in the company to information has as a function to ensure the integration of this international standard in the national laws of the Member States. The object of the directive precisely consists in defining a legal protection of the preparatory acts or neutralization of effective technical measurements, which they are inspecting devices of access or technical measurements control copy.

The measurements installation by the directive^57(*) are, for the case which concerns us, the exception of optional private copy, the installation of an equitable compensation and the protection of the skirting of technical measurements.

Indeed, article 5 §2 b)^58(*) lays down «faculty» for the Member States to exempt reproduction right the copies on any support by an individual for a private use and at purposes not directly or indirectly commercial, provided that the holders of rights receive an equitable compensation. ^59(*)

Concerning, the protection of the skirting of technical measurements, article 6^60(*) imposes on the Member States a new infringement : the act of skirting of «effective technical measurements». Not only the act even of skirting is aimed, but also the fact of manufacturing, of importing, of distributing, of selling, of renting, of having at commercial purposes or of making the promotion of tools having for principal object the skirting of these technical measurements.^61(*)

Thus, freedom is left to the holders of rights to set up technical measurements protecting their works. European Commission, in February 2002, having specified that an effective management of the rights within the framework of the DRM and in direct relationship to Directive 2001/29/EC was to be based on the fact that  : « Legal The framework supports uses off DRMs by protecting technical measures, and by requiring Member States to take into account the application gold non-application off technological measures when providing for to fair compensation in the context off the private uses exception for which to fair compensation is required, (Recital 35 and Article 5.2 (b))., edge facilitate the effective management off rights and exceptions. Effective Where technological measures are operational and, right holders should Be whitebait to ensure appropriate exploitation and enforcement off to their rights have well adequate returned by using DRMs. Legal The framework provides for the possibility to avoid double compensation where copyright levies and DRMs would Be used in parallel ». ^62(*)

* ⁵⁰ Paul Horn, Elliot Maxwell, Susan Crawford, Promoting Innovation And Economic Growth: Special The Problem Off DIGITAL Intellectual Property, A Carryforward by the DIGITAL Council Connections off the Committee for Economic Development, p.16, 2004, www.ced.org/docs/report/report_dcc.pdf

* ⁵¹ Jörg Reinbothe, European Commission, DIGITAL Rights Management Workshop, Legal The Framework for DIGITAL Rights Management, Brussels, p. 4. 28 February 2002

* ⁵² Alessandro Acquisti, Privacy in Electronic Trades and the Economics off Immediate Gratification

9p. 2003 www.heinz.cmu.edu/~acquisti/papers/privacy-gratification.pdf

* ⁵³ Philippe Chantepie, Technical Measurements of Protection of works & DRMS, 1ère Left: an Inventory of fixtures, January 8, 2003, p. 8.

* ⁵⁴ Ibid, p. 11.

* ⁵⁵ Article 9 Civil code  : «  Each one is entitled to the respect of its private life  »  ; article 8 of the European Convention of the Humans right  : «1. Any person is entitled to the respect of her private and family life, her residence and her correspondence. 2. There can be interference of a public authority in the exercise of this right only in so far as this interference is provided by the law and that she constitutes a measure which, in a democratic company, is necessary to national safety, public safety, the economic welfare of the country, the defense of the order and the prevention of the penal infringements, with protection of health or morals, or with the protection of the rights and freedoms of others  ». One will be able to read with attention an overall study of the concept  realized by Nathalie Mallet-Poujol, Protection of the private life and the personal data, 52p. February 2004, www.educnet.education.fr/chrgt/guideViePrivee.pdf

* ⁵⁶ Royalty and the Internet, Report/ratio of Broglie, July 2000, p. 25-26.

http://www.culture.gouv.fr/culture/cspla/rapportbroglie.pdf

* ⁵⁷ Blandine POIDEVIN, Comments on the European directive relating to the royalties, 17/07/2001

www.jurisexpert.net/site/fiche.cfm?id_fiche=1356

* ⁵⁸ Article 5 §2 b) «  2. The Member States have faculty to envisage exceptions or limitations with the reproduction right envisaged to article 2 in the following cases: (...) b) when they are reproductions carried out on any support by an individual for a private use and at purposes not directly or indirectly commercial, provided that the holders of rights receive an equitable compensation which takes into account the application or nonthe application of the technical measurements aimed to article 6 to works or objects concerned (...)  » Directive 2001/29/EC

http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=fr&numdoc=32001L0029

* ⁵⁹ It will be noted that these optional measurements are increasingly numerous in the directives in a political concern but they are in our opinion of strict interpretation i.e. without possibility of expansion or reduction, which is not always the opinion of certain States.

* ⁶⁰ http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=fr&numdoc=32001L0029

* ⁶¹ Article 6  : «  (...) Technical measurements are considered effective when the use of a protected work, or that of another protected object, is controlled by the holders of the right thanks to the application of an access code or a process of protection, such as encoding, the jamming or any other transformation of work or the object protected or a mechanism from control of copy which achieves this goal of protection (...)  ». Ibid This article was quite simply transposed to article 7 of the current French bill on the royalty.

* ⁶² European Commission, DIGITAL RIGHTS Background, Systems, Have, 14.02.2002, p. 8

http://europa.eu.int/information_society/newsroom/documents/drm_workingdoc.pdf