La gestion des DRM en perspective

2- the bill on the royalties63(*)

The explanatory memorandum of the bill of transposition in French right of directive 2001/29 EC indicates that it asks a priori only « very limited modifications of the code of the intellectual property. It acts primarily, on the one hand, of the introduction of sanctions in the event of skirting of technical measurements of protection and identification of works and, on the other hand, the institution of an exception to the royalty in favor of certain types of technical copies carried out during the transmissions of contents on the numerical networks ». ^64(*)

The bill seems to have remained rather near to the European text^65(*), and it is the goal of a directive of harmonization of the legislations. However, one will note some changes having milked mainly with : on the one hand, recognition of new exceptions to the royalties and, on the other hand, to the coexistence of the private copy and technical measurements.^66(*)

Article 7 of the bill indicates : « effective technical measures intended to prevent or limit the uses not - authorized by the holder of a royalty or a right close to the royalty, of a work, an interpretation, a sound record, an ideogram or a program, are protected under the conditions envisaged with the present title. These provisions are not applicable to the software;

«One understands by technical measurement, within the meaning of the preceding subparagraph, any technology, device, component, which, within the normal framework of its operation, achieves the function envisaged with the preceding subparagraph. These technical measurements are considered effective when an aimed use to the preceding subparagraph is controlled thanks to the application of an access code, a process of protection, such as encoding, the jamming or any other transformation of the object of protection, or of a mechanism of control of the copy which achieves this goal of protection.

«The licenses of development of technical measurements of protection are granted to the technical manufacturers of systems or to the owners of services which want to implement interworking, under conditions equitable and nondiscriminatory, when these manufacturers or owners commit themselves respecting, in their sphere of activity, the conditions guaranteeing the operational safety of technical measurements of protection that they use ». ^67(*)

Be added to these provisions that the skirting of these devices anti-counterfeit set up in particular on CD or DVD will be compared to counterfeit (article 11 to 15) and will be sanctioned penally. It will be noted that, the law Perben II extended the sorrow for counterfeit from two to three years of prison and 150.000 to 300.000 euros of fine, and to five years and 500.000 euros when the offense is made in organized band. ^68(*)

Moreover, the directive obliges (article 6.4) the Member States to envisage: «an adapted legal protection against manufacture, the importation, the distribution, the sale, the hiring, the publicity for the sale or of the hiring, or the possession at commercial ends of devices, products or components or the provision of services which: has) are the subject of a promotion, of a publicity or of a marketing, with an aim of circumventing protection, or b) have only one limited commercial goal or a limited use other to circumvent protection, or c) are mainly designed, produced, adapted or realized with an aim of allowing or of facilitating the skirting of the protection of any effective technical measurement. ». This measurement was transposed in the Bill to article 13. ^69(*)

Also, one will look with interest a decision of the federal court of San Francisco on February 19 2004^70(*) which forbade the Company 321 Studios to continue in the United States the production and the marketing of any software allowing the duplication of video DVD.^71(*) Indeed, this decision was made because this type of software allows the skirting of the protection measures and violate thus the DMCA of 1998. This first judgment was given and the Court of New York^72(*) confirmed this approach on March 3, 2004 in another business against 321 studios. It specifies that the software published by the company 321 Studios, enfreignait the royalty. It considered that « However, prohibition off manufacture gold trafficking off any technology primarily designed to circumvent has technological measure that either controls accesses to gold protects has right off has copyright owner to gold in A work protected under DMCA, obviously is not evaded by the alternative existence gold arguably limited use «. ^73(*)

This faculty will have, it also, being given up in France at the end of the transposition of article 6.4 of the directive of May 22, 2001 on the royalty !!

On the other hand, one finds in article 8 Al 3^74(*) of the Bill a provision which differs from the directive insofar as faculty is offered to the holders of rights to limit the number of private copies, which can very clearly be made by the installation of DRM. This measurement is D `largely used right now elsewhere by the various actors of the sector of the distribution in line of contents.

One will then follow with interest the Bill when it indicates that, if technical measurements are legitimate, they should not limit the exercise of private copy.^75(*) However all the difficulty is well there : how to reconcile the logic of the fight against the counterfeit and the hacking of works with that of the exception of copy deprived at private ends or the family circle...

Indeed, technical measurements which make it possible to control the use, the destination, the distribution of works have as a finality to prevent any illicit copy of those like any violation of the other exclusive rights of the holder. The skirting of those being illegal as from the moment when, like specifies it Caprioli, that was with full knowledge of the facts accomplished.^76(*)

Thus, it would seem that in the future the user cannot exert his right of private copy quite simply any more. And, it is well the tendency to which one forwards oneself, the content providers on line initially set up of such measurements via the systems of DRM^77(*) on line for then gradually applying them and according to the evolution and of the renewal of the equipment of the consuming users/with the purchases in the trade (off line). Certain CD being already famous like noncopiables, which was the occasion for the judges besides to decide in certain businesses.^78(*) In those, most important in our opinion, and one will follow in that Eric Barbry^79(*), not being that the companies were condemned for vice hidden and fraud but that the judge imposes « to make appear in the back packing CD the following formula in character 2,5mmm « Attention, it cannot be read on any reader or car radio »^80(*) ; « the consumer by reading the mention « this CD contains a technical device which limits the possibilities of copy » cannot know that this system anti-copy is likely to restrict the listening of its disc on a car radio or a reader ».^81(*) In that, it recognizes de facto the existence of a right of technical measurements and stresses only the fact that the consumer was not clearly informed of the restrictions likely to be able to intervene during the use of the bought support.

One will also follow with much interest the continuations of the decision returned by the TGI of Paris of last 30 April.^82(*) French Union of Consumer (UFC) That To choose was déboutée by this one of its request towards Universal, the Films Alain Sarde and Studio Channel. Indeed, a private individual having bought the DVD of film of David Lynch Mulholland Drive could not make a private copy of this one because of the protection measures of the DVD. The judge indicated that the law was obsolete since, because of its seniority, « it did not take into account the recent reduction of the supports on which a work can be reproduced ». And to add that « the copy of a work published on a numerical support could only attack the normal exploitation of work ». ^83(*)

It is in the name of the fight against the hacking that these same companies of perceptions are today pointed finger by the European Commission and more particularly by its Direction in load of the respect of the right of the competition. Sixteen companies of authors, whose SACEM, which collects the musical rights, are concerned. To make short, the Commission wishes to introduce competition between the companies of authors who in particular release the rights of diffusion of the music. The agreements of Santiago and Barcelona, in 2001, stipulated that each diffuser was to negotiate, country by country, the licenses of diffusion of the music to be bought on line. This territoriality and this exclusiveness are now disputed by the European Commission which wishes to open the system and to put the companies in competition. A way like another of encouraging the paying sites in their facilitating the life. On their side, the companies of authors fear that competition of the companies entitled to grant user licenses results in cause a drop in singularly the amount of the rights in the name of the commercial attractivity

* ⁶³ It should be examined by the Parliament as of the first six-month period 2004.

* ⁶⁴ Bill relating to the royalty and the rights close in the company to information, November 12, 2003, p. 1.

http://www.culture.gouv.fr/culture/actualites/communiq/aillagon/droitdauteur1103.pdf

* ⁶⁵ Antoine Gitton, Analyzes French bill on «the royalty and the rights close in the company to information», November 19, 2003, 18 p. www.droit-technologie.org/2_1.asp?dossier_id=113

* ⁶⁶ One will limit here to the study strictly speaking measurements having an impact on the DRM.

* ⁶⁷ Ibid, p. 9.

* ⁶⁸ Law n° 2004-204 of bearing 9 March 2004 adaptation of justice to the evolutions of criminality, article 34  : «  II. The article L. 335-4 is thus modified: 1° In the first subparagraph, the words: «two years of imprisonment and 150.000 EURO of fine» are replaced by the words: «three years of imprisonment and 300.000 EURO of fine»; 2° It is supplemented by a subparagraph thus written: When the offenses envisaged with the present article were made in organized band, the sorrows are carried at five years of imprisonment and 500.000 EURO of fine «.

www.legifrance.gouv.fr/WAspad/Visu?cid=689004&indice=1&table=JORF&ligneDeb=1

* ⁶⁹ Article 13  : «  Is compared to an offense of counterfeit: «1° the fact for a person of carrying reached, with full knowledge of the facts, with a technical measurement mentioned with the article L. 331-5 in order to deteriorate protection, assured by this measurement, bearing on a work; «2° the fact, with full knowledge of the facts, of manufacturing or of importing a technological application, a device or a component or of providing a service, intended to facilitate or allow the realization, in all or partly, fact mentioned with the 1° above; «3° the fact, with full knowledge of the facts, of holding for the sale, of the loan or the hiring, of offering to the sale, the loan or the hiring, of placing at the disposal in some form that it is a technological application, a device or a component or of providing a service intended to facilitate or allow the realization, in all or partly, fact mentioned with the 1° above  ; (...)  ». Bill relating to the royalty and the rights close in the company to information, November 12, 2003, p. 12.

* ⁷⁰ www.321studios.com/PRESS/SJ%20Order.pdf

* ⁷¹ Marie-Amélie Gervais, Judgment by twice, of the editor of software «DVD X Copy» allowing the hacking of DVD, 23/03/2004, www.njuris.com/ShowBreve.aspx?IDBreve=642

* ⁷² U.S. District Judge Richard Owen, 1:03 box - cv-08970-RO, Paramount Pictures and Twentieth Century Fox Film v. 321 Studios, http://news.findlaw.com/hdocs/docs/cyberlaw/pp32130304opn.pdf

* ⁷³ Ibid, p. 3.

* ⁷⁴ Article 8 Al the 3 «holders of rights have faculty to take measures allowing to limit the number of copies  ». Ibid, p. 8

* ⁷⁵ To allow the exercise of the exceptions, the Bill returns to the contractual agreements with the users....

* ⁷⁶ Eric A. Caprioli, Devices technical and royalty in the company of information, September 2001, www.caprioli-avocats.com/cabinet_caprioli/fr/publs/edocs/Articles/dispoTech_droitAut.htm

* ⁷⁷ The whole of the rights of the user at the time of the remote loading of music on line is detailed in Chapter 2 of this study by a brief comparison of the offers of various people receiving benefits of contents on line in the sector.

* ⁷⁸ Above mentioned businesses, note n°36, p. 13-14.

* ⁷⁹ Eric Barbry, anti-copy measurements: It is necessary to inform the consumer, Article published in the daily newspaper the Echoes of September 18, 2003, www.cyberlex.org/barbry/proce_anti_copies.htm

* ⁸⁰ TGI Nanterre, June 24, 2003, Association CLCV C/SA EMI Music France

* ⁸¹ TGI Nanterre, September 2, 2003, Mrs F.M. and UFC That To choose C/SA EMI Music France and co. Auchan

* ⁸² TGI under the reference  : n° of general role 03/08/500, 3rd room 2nd section, April 30, 2004. www.legalis.net/jurisprudence-decision.php3?id_article=722

* ⁸³ The judge justifies as follows: (...) Waited indeed that the commercial exploitation of a film in the form of a DVD constitutes a mode of exploitation of many audio-visual works so that it is not contestable only this mode belongs to a normal exploitation such works; Waited until the copy of a filmographic work published on numerical support cannot like attacking the normal exploitation of work; Waited until this attack will be necessarily serious - within the meaning of the criteria retained by the convention of Bern - because it will affect a mode of essential exploitation of the aforesaid work, essential to the damping of its production costs; Waited until the safety device with which the DVD acquired by Stephan P. is equipped does not appear consequently to carry out a violation of the articles L 122-5 and L 211-3 of the code of the intellectual property; Waited finally, that it is indifferent until the virgin support acquired by Stephan P. could give place to the collection of a remuneration for private copy because the plate of this remuneration does not determine the range of the exception of private copy (...) Waited until if information specifies of the consumer on impossibility of realizing a private copy of the litigious DVD could have been reproduced on the jacket of this one, it remains that an essential characteristic of such a product the possibility does not constitute of reproducing it especially then that it cannot profit from the exception of private copy «. www.legalis.net/jurisprudence-decision.php3?id_article=722. The TGI of Paris judges legal the protection of the DVD against the private copy, May 3, 2004,

http://actu.voila.fr/Depeche/depeche_juniors_040503114237.z9h0mp78.html and Paule Gonzalès, Royalty: towards the end of the private copy, May 05, 2004, www.lefigaro.fr