Monday, March 20, 2006

The French National Assembly is to adopt a bill, known as DADVSI (« Droits d’Auteurs et Droits Voisins de la Société de l’Information », “author’s right and related rights in the information society”), tomorrow. This bill reforms the French code of intellectual property (CPI) and other laws, mostly in order to implement the 2001 European directive on copyright.

The directive mandates legal protections of Digital rights management (DRM) measures against circumvention. DRMs are “digital locks” that prevent users from freely copying or playing contents, in order to enforce the copyright of the authors, artists, publishers and producers. The initial draft of the bill, proposed by Minister of Culture Renaud Donnedieu de Vabres, made circumvention of DRMs, or even facilitation thereof, a felony (délit), with a maximal penalty of 3 years in prison and/or a €300,000 fine as with counterfeiting. Since DRMs, circumvention and facilitations were not legally defined, it was feared that the law would effectively prevent competitors from creating players, especially based on free software, compatible with major systems such as Apple’s iPod or Microsoft’s Windows Media Player — or even to prevent the creation of any free software capable of loading files with DRM capabilities, that is, potentially most future text, audio or video file formats.

The initial draft also conserved the threat of a counterfeiting felony conviction for those exchanging copyrighted files on the Internet. This was judged to be unfairly repressive and unrealistic. In France, it is commonplace for Internet users to have broadband up to 16 megabits per second in cheaply priced (€30 a month or lower) ADSL packages, often comprising VoIP phone and television ; millions of users, especially the young, are believed to use peer-to-peer file sharing software. Lawmakers, from both the majority UMP party and the opposition, found it unwise to turn millions of citizens into potential felons. As a consequence, the Minister proposed a “gradual” scheme where mere downloading of one file would be punishable by a €38 fine, which was adopted as an amendment. It remains to be seen how the law will be enforced.

With respects to DRMs, lawmakers from both the majority UMP party, the centrist Union for French democracy and the opposition adopted amendments that make it compulsory for publishers of DRM-encumbered content to give the specifications to whomever would like to implement a compatible player. This proposal was decried by some US news sources as targeting Apple Computer’s iTunes system, tied to the iPod players. It is yet unknown, though, if these amendments would apply to companies that choose not to claim the new special protection awarded to DRMs by the law, which enable them to sue those who implement software meant to circumvent their protections.

Lawmakers also expressed concerns that the proposed law would weaken existing legal exceptions to copyright, especially the right for users to make copies of copyrighted files for private use (CPI L122-5).

The lawmaking process was quite a bumpy one. In December, lawmakers adopted a surprise amendment that would legalize peer-to-peer sharing as “private copy”, much to the dismay of the Minister of Culture. The amendment, proposed by a bipartisan coalition of majority UMP and opposition lawmakers, was the first in a series that would have established a system known as the “global license” through which Internet users would have paid a flat fee in exchange for an authorization to use peer-to-peer services. The fees collected would be redistributed to authors and performers. In March, the Minister tried to withdraw article 1 of the law, which was the one that was amended to his dislike, but the next day he had to reintroduce it because withdrawing it may have been unconstitutional. The Assembly then voted the article down and adopted an Article 1 “bis”, essentially an amended version of article 1 without the legalization of peer-to-peer sharing.

The law, initially presented as an uncontroversial, technical text, soon became a hot topic. Some lawmakers, both from the opposition and the majority, decried intense lobbying by the entertainment industry. Some amendments were nicknamed the “Vivendi Universal amendment”, from the name of a major entertainment company that some lawmakers and commentators claim has inspired them. UMP lawmakers such as Bernard Carayon denounced pressures and even blackmail from some powerful lobbies.

The Assembly will very probably adopt the bill on March 21, despite the opposition of some UMP, UDF and opposition lawmakers. The bill will then be sent to the French Senate for further amendment and approval. Since the government declared the bill to be urgent, it is probably that after examination by the Senate, the bill will be sent to a mixed Assembly/Senate commission for harmonization, then finally voted. Given that some UMP and opposition lawmakers have voiced concerns about the constitutionality of some episodes of the lawmaking process, it is likely that the bill will get sent to the Constitutional Council for constitutional review. Finally, president Jacques Chirac is likely to sign it into law.