Two important legal developments regarding DRM and digital copyright have taken place in France over the past couple of weeks. Both were positive for copyright owners. On February 28th, a high court reversed last year's appeals court decision on the legality of copy protection technology in DVDs, and the French Parliament last week decided to back off on its intent to pass legislation establishing blanket licensing for online music.
The Cour de Cassation (Supreme Court of Appeal) overturned a 2005 appeals court decision establishing that DVD encryption abridges consumers' rights to make private copies under French copyright law. The case was brought by UFC-Que Choisir (the French analog of Consumers Union in the US) on behalf of a consumer who wanted to make a copy of a DVD for a relative. The Cour de Cassation is a level below France's highest court, the Conseil d'Etat.
The Cour de Cassation's decision represents a confluence of private copying law, common throughout the European Union, and Fair Dealing/Fair Use principles derived from UK and US law. The court cited principles in the Berne Convention on international copyright law (which led to the WIPO Treaties of 1996) stating that technical protection measures should not be outlawed if the resulting copying capabilities lead to diminished markets for copyrighted works. This is the most important principle in judging Fair Use in US copyright law, and according to the Cour de Cassation, it trumps French private copying law in this case. As in US Fair Use law, the court must rule on the materiality of the market effect.
The decision refers the matter back to the Cour d'Appel (appeals court) in Paris for a retrial. The appeals court will need to consider the Cour de Cassation's legal ruling but is under no obligation to reach the same conclusion. However, if the appeals court reaffirms its conclusion that DVD copy protection is illegal, the Cour de Cassation automatically gets the case again.
The other matter concerns a bill coming up through French parliament that would revise the country's copyright law. The lower house of parliament had considered a blanket license fee of a few Euros per month to cover all Internet music downloads, an idea derived from proposals from academics and advocacy groups in the US. The entertainment industry was able to convince French parliament that the resulting licensing fees would nowhere near compensate them for the level of content usage that would ensue, so parliament has dropped that controversial provision.
The bill retains its provisions of lower penalties for first-time illegal downloaders and prison time for large-scale pirates. It comes up for a vote next Tuesday.
France has become a test bed for working out several thorny questions resulting from the intermingling of digital content, DRM, copyright levies, and two different types of copyright law regimes. Technology is progressing to the point that it becomes possible to track actual usage of digital content and compensate rights holders appropriately, instead of using outmoded blunt instruments like levies and blanket licensing fees to approximate that compensation. Our opinion that the French blanket licensing fee was ill-advised is based on this principle, not on the magnitude of payments that would result.
Technology is also progressing to a point at which it becomes necessary for the law to draw sharper boundaries around usages that are acceptable versus those that are not: If private copying among "family and friends" is a consumer's right, then how does one define "family and friends"? If DRM is used to protect those copies, then why should a consumer also pay copyright levies? Developments in the French courts and parliament will point the way toward answers to these difficult questions in the years ahead, and the rest of the world needs to watch and learn.
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