[Bernard Lang, a prominent French computer scientist and infotech policy commentator, sent me an interesting message about the much-discussed legislative developments in France. It includes the first English translation I have seen of the proposed French law mandating open access to DRM technologies. He has graciously given me permission to post his message here, with some minor edits (mostly formatting) by me. Here is his report and commentary:]
The new French law on copyright (our own local version of DMCA), is called DADVSI for “Droit d’Auteur et Droits Voisins dans la Société de l’Information.”. “Droit voisins” stands for derived activities and works, mainly the work of performing artists – I translate it below as “adjacent rights”, not knowing a better or standard translation.
This copyright law is supposed to transpose into French Legislation the European Copyright directive of 22 May 2001.
The law was sent on a fast track procedure (meaning only one reading, rather than three, in each chamber), because it should have been passed a long time ago, and France may be fined by Brussels for being late. It has now passed the MP reading. This unique reading was supposed to take fifteen hours. It took sixty and got more publicity than the government wanted. It will be submitted to the senate in May. The current text and related documents are available online (just in case you read French and are interested).
I will not go into all details of that law, and keep to one aspect that is actually positive. The law also has many regressions that go beyond DMCA or anything accepted in other countries, such as the so-called “Vivendi-Universal” amendments, that have become articles 12-bis and 14-quater (this is temporary numbering) in the current text. These somewhat unprecise articles allow penal (12 bis) or civil (14 quater) suits against software authors whose software is “manifestly” used for illegal access to works.
The point I want to discuss is mostly in article 7, which essentially tries to turn any technical protection measure (TPM) into an open standard. We are lucky in that we have here a legal definition of what is an open standard, which specifies that the standard must be freely usable (including that it is not encumbered by IP).
One interesting fact is that this article 7 did not have most of these clauses when first voted during the debate. Then, on the last day (night ?) of the debate, after the last article, they reopened the debate on article 7 and voted the current version at 3h00 am. This was not a complete surprise, since it was known that several majority MPs were negotiating with the government.
Article 7 of the law (I am losing some technical legal subtleties in the translation, for lack of knowledge of legal vocabulary) actually creates a new article in the French Intellectual Property Code that states :
Article L. 331-5. –
Effective technical measures intended to prevent or limit uses unauthorised by the rightholder of a copyright or an adjacent right of any work, other than software, interpretation, phonogram, videogram or audiovisual program, are legally protected under the condition stipulated here.
Technical measures, in the sense of the previous paragraph, are understood as any technology, device, component, which, within the normal course of its operation, realizes the function intended in the previous paragraph. These technical measures are deemed effective when a use considered in the previous paragraph is controlled by means of an access code, a protection process, such as encryption, scrambling or any other transformation of the protected object, or a copy control mechanism, which achieves the protection objective.
A protocol, a format, a method for encryption, scrambling or transforming does not constitute as such a technical measure as understood in this article.
The technical measures should not result in preventing actual use of interoperability, not infringing copyright. Technical measures providers must give access to the information essential to interoperability.
By information essential to interoperability, we mean the technical documentation and the programming interfaces necessary to obtain, according to an open standard in the sense of article 4 of law n° 2004-575 of june 21st 2004 for trust in numerical economy, a copy of a reproduction protected by a technical measure, and a copy of the numerised information attached to this reproduction.
Anyone concerned may ask the president of the district court, in a fast track procedure, to compel a technical measures provider to provide information essential for interoperability. Only the logistic costs can be requested in return by the provider.
Any person desiring to use interoperability is allowed to proceed to decompiling steps that might be necessary to make essential information available. This disposition is applicable without prejudice to those of article L. 122-6-1. [note: this is the article regarding software interoperability that transposes into French law the part of the 1991 European directive regarding interoperability and some other provisions.]
Technical measures cannot be an obstacle to the free use of the work or the protected object within the limits of the rights set by this code [i.e. the French code of Intellectual Property] as well as those granted by the rights owners.
These stipulations are without prejudice to those of article 79-1 to 79-6 of law n° 86-1067 of September 30, 1986 regarding freedom of communication.
One cannot forbid the publication of the source code and technical documentation of independent software interoperating for legal purposes with a technical protection measure of a work.
No guaranties are offered for this translation, and I am not a lawyer :-)
Some of the stipulations of this article are a little bit unclear, because of other articles (13 and 14) that may limit certains rights, especially in the 3rd paragraph from bottom. … It is not clear which prevails.
This text does not say that TPM must be open standards, but they they should be essentially like open standards, as long as they are not covered by patents … and we are not supposed to have software patents at this time, in Europe.
Now there have been strong international reactions to this text, some of which are reviewed on my web site, in English and/or French.
I was particularly interested in the comment by U.S. Commerce Secretary Carlos Gutierrez, in an article, “Commerce chief supports Apple’s protest over French law,” from America’s Network on March 24:
“But any time something like this happens, any time that we believe that intellectual property rights are being violated, we need to speak up and, in this case, the company is taking the initiative,” AFP quoted [Gutierrez] as saying [on MSNBC]. “I would compliment that company because we need companies to also stand up for their intellectual property rights.”
This is interesting, because I have been supporting for some time the view that DMCA-like legislation was actually attempting to create a new intellectual property right, a “DRM right”, that gives exclusive rights to the initial users of a DRM format to develop software interacting with it. Of course, no one, to my knowledge, would actually acknowledge the fact. [This is similar to what Peter Jaszi and others have called “paracopyright” in the U.S. – Ed]
Interestingly, one purpose of this new IP right is to prey on cultural creation and creators by controlling the distribution channels, while pretending to offer what seems to be mostly an illusion of protection.
The limitations of the French law just restrict technical measures to be what they are supposed to be: a protective device (for whatever it is worth), without giving any control to people other than the (rightful ?) rightowners of the work.
Without interoperability as required in the French law, DRMs (or TPMs if you prefer) behave pretty much like patents on formats and distribution models, without even requiring innovation, nor official application and examination, and without a time limit or compulsory licensing.
Now, I seem to recall that an obscure American legal document stating that:
The Congress shall have Power […] To promote Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries
is the basis for the existence of IP in the United-States.
If indeed, as asserted by Mr Carlos Gutierrez, the French law will infringe on Apple’s IP rights, these rights can only be in Europe (no software patents, recall) the new “DRM rights” I have been discussing above, and that are the consequence of the DMCA.
But if that is the case, this “DRM rights” require no novelty, nor are they limited in time, even in a formal way. Hence they can only be unconstitutional.
There are other interesting comments in the press. My preferred ones are :
French on to something with iTunes law, say analysts
Reuters, ZDNet, March 20, 2006.
Analysts say the French are on to something that the rest of the world has yet to figure out: It needs to set rules for this new market now or risk one or two U.S. companies taking control of online access to music, video and TV.
France debates new tunes for iPod
Thomas Crampton, International Herald Tribune, March 17, 2006 .
The French government’s approach is bold and the only one that makes sense,” said Michael Bartholomew, the director of the European Telecommunications Network Operators’ Association, a trade group based in Brussels.
And apparently, some professional organizations are finally coming to understand on which side their bread is buttered :
France May Force Apple to Open Up iTunes as Bill Moves Ahead
Rudy Ruitenberg, Bloomberg, March 20, 2006.
“The music industry is in favor of interoperability, it would make music accessible on more platforms. It’s quite a technical and complex provision, so it’s not quite clear how it’s going to work in practice,” [Olivia] Regnier [European regional counsel for the London-based International Federation of the Phonographic Industry] said.
The irony of this is that it is the free software organizations, presented by the “cultural community” (read “those who make pots of money in the name of culture”) as the utmost evil, who have been fighting for this interoperability clause.
I remember that, while some partners and I were being auditioned by government officials, their faces expressed surprise that we worried that artists should be able to publish their work, possibly protect their work, freely and without having to submit to the technology leveraged market control of a few large companies. My feeling was that no one else had expressed that concern before.
And, as usual, France Is Saving Civilization. But for the first time, Americans recognize the fact :-)
How France Is Saving Civilization
Leander Kahney, Wired, March 22, 2006.
Well, that is all. I still have to read the week-end developments and prepare for the senate hearing of the law.