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Does Good Digital Rights Management Mean Sacrificing the Private Copy?

DRM, or Digital Rights Management, refers to the technology used to secure digital works and the management of access rights to those works.

Through the use of four components – the encoder which encrypts the files protected by copyright, the streaming server which provides access to the files, the reader which decrypts the coding, and the management software which determines to whom the rights belong and how they are to be distributed – DRM architecture permits:

  • On one hand, the tracing of file users’ activity, in order to verify if access to the files in question is authorized, and to determine whether the user is complying with applicable copyrights.
  • On the other hand, to proscribe or limit access to the digital work or copies thereof.

The second of these “lock” functions was addressed in the May 22, 2001 Community Directive 2001/29/CE, harmonizing certain aspects of copyright law with apposite legal rights in the domain of software and digital information, and subsequently by the Bill on Conversion (“DADVSI”) (on the matters of copyright and related digital information rights), presented November 12, 2003.

In effect, these two texts officially establish the protection of “effective technical measures intended to prevent or limit uses not authorized by a copyright owner, or owner of a related right, of a work, performance, audio recording, video recording, or program outside the software application.”

Do these measures sound a death knell for the right of a legal user to make a personal (backup) copy of digital materials?

To be sure, the DADVSI Bill, which echoes the terms of the Directive, reaffirms the right to a private copy, which the management technology ought not to encumber 1. However, this right to a private copy is subject to all of three conditions, two of which are completely subjective, directly inspired by Article 9.2 of the Berne Convention, namely:

  • The beneficiary of the right to a private backup copy must be entitled to legal access to the work in the first instance;
  • Creation of the private backup copy should not encumber in any way the normal exploitation of the work by copyright holders; and
  • The creation of the private backup copy must not create any unjustified prejudice or injury to the legitimate interests of the copyright owner.

What are we to understand is meant by “normal exploitation of the work”? This question is left to liberal interpretation by the judge, which may lead to contradictory rulings. The “Mulholland Drive” Affair is an excellent illustration of these contradictions in the judicial interpretation of “normal exploitation.” While the Cour d’Appel (Court of Appeals) in Paris considered, in its April 22, 2005 injunction, that a private copy of a DVD could not be seen as impeding the normal exploitation of the work, the First Civil Chamber of the Cour de Cassation (French Supreme Court), in its February 28, 2006 decision, affirmed to the contrary that, taking into account the economic importance of DVD distribution toward defraying the costs of movie production, a private copy did represent an imposition on normal exploitation by the copyright holder.

Thus, the French Supreme Court, in reviewing the arguments upheld by the judges in the lower court 2, held that the economic impact of an additional (private) copy must be taken into account in the digital domain. The court did not address the conflict here with the terms of Article L.122-5 of the Intellectual Property Code (CPI), under which “the author many not prohibit copies or reproductions retained for the sole purpose of private use by the copying party, which copies are not intended for use by any other party.”

Indeed, the particular person who purchased the DVD and who is expected to be the copying party falling within the ambit of CPI Art. L.122-5, has no justifiable need for making multiple copies of his DVD for private use. Nonetheless, such a position on the part of the judges raises the question of the legitimacy of the tax on blank recording media 3.

As the Director of Studies and Communication of the UFC “Que Choisir” 4 has highlighted 5, since “blank DVD royalty taxes are the highest in France,” if it’s “the place where the gamut of rights is weakest,” we reach a certain paradox which leads us to look again at lowering the remuneration derived from the tax on blank media for private copies.

Far from the Anglo-Saxon common law system of “precedents,” our system does not allow us to treat the holding of the French Supreme Court as stating an immutable principle of interpretation of the idea of “normal exploitation of the work.” To the end of alleviating these problems in interpretation, the DADVSI Bill endeavors, in its Article 9, to introduce an Article L.331-7 in the CPI according to which any disputes with regard to mechanisms constraining the benefits of the private copy right will be submitted to a panel of mediators.

This panel of mediators has as its stated objective the determination of how the DRM should be applied in each case, in order to safeguard to some extent the right to a private copy while trying to arrive at a reconciliation, and, in the end, to establish either an injunction or a proscription on the part of the person who alleges himself to be a legitimate beneficiary of the right to a private copy. Still, will a panel of mediators, composed of magistrates or independent functionaries 6, enjoy a sufficient legitimacy and perception of authority in the digital community to carry itself as authoritative on the questions of digital rights management?

Notes
(1)Article 8 du Projet de loi DADVSI du 12 novembre 2003.
(2)TGI Paris, 30 avril 2004 (disponible sur juriscom.net, legalis.net, foruminternet.org) , GTA Juillet 2004 , Doctrine : « Exploitation normale d’une œuvre numérique : vers le Fair Use américain ? » Benoit de Roquefeuil, Ariane Delvoie.
(3)Many European countries tax blank recording media and redistribute those imposts as royalties to copyright holders, based on the presumption that many or most copies produced on these media are of copyrighted content.
(4)French Association for the protection of consumers.
(5)« Copie Privée sur les DVD : l’UFC- Que choisir prêt à repartir à la bagarre en appel », Estelle Dumout, ZDNet.fr, 1er mars 2006 (http://www.zdnet.fr/).
(6)Article 9 du projet de loi DADVSI du 12 novembre 2003.Cass civ.du 20 02 2006.

Alain Bensoussan

Dès 1978, Alain Bensoussan, avocat à la Cour d’appel de Paris, spécialiste en droit de la propriété intellectuelle, en droit de l’informatique ainsi qu’en droit des relations internationales, a fondé un cabinet dédié au droit des technologies avancées.

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