After months of discussions, the French Copyright Act was finally enacted on 1 August.
The so-called DADVSI Act is 52 sections long and divided into 5 parts. Its main purpose is to implement the Directive on Copyright and Related Rights in the Information Society (2001/29). In doing so, it creates new exceptions to copyright protection and provides for the protection of technological measures and rights management information. Besides implementing the Directive, the new Act contains provisions relating to unlawful downloading on the internet and ownership of copyright in works created by civil servants.
New exceptions. The DADVSI Act provides new exceptions, in addition to those already set out in Article L.122-5 of the Intellectual Property Code (IPC), which allow the use of copyright works in certain special cases without the rightholder’s permission. Under the Act, the rightholder’s exclusive right to authorise or prohibit the reproduction of a work may be limited in respect of (among other things):
- temporary acts of reproduction, which are "transient or incidental and an integral and essential part of a technological process and whose sole purpose is to enable a transmission in a network between third parties by an intermediary" so long as they do not concern software or protected databases and have no independent economic significance;
- acts of reproduction made by publicly accessible libraries, educational establishments or museums; and
- acts of reproduction for the private use of disabled persons.
These new exceptions only apply insofar as they comply with the "three-steps test": they must be expressly provided for; they must not conflict with the "normal exploitation of the work" and must not "unreasonably prejudice the legitimate interests of the rightholder".
The DADVSI Act also provides similar exceptions with respect to related rights and database rights, with the "three-steps test" applying to these exceptions.
Technological measures and rights management information. The expression "technological measures" means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works, which are not authorised by the rightholder of any copyright or any related rights.
The DADVSI Act grants protection to effective technological measures which enable a rightholder to control the use of a protected work, on condition that they do not undermine the right of every legal user of a copyright work to make a copy for private use and for non-commercial purposes; and also that they do not hinder the interoperability of a copyright protected work with the systems which allow it to be read.
A new regulatory authority has been appointed to guarantee interoperability. If a rightholder refuses to communicate the information necessary to ensure interoperability, a software producer or operator is entitled to ask the regulatory authority to obtain it. The new authority is also responsible for ensuring that the implementation of technological measures will not undermine the right to make private copies.
Other changes. Apart from dealing with issues raised by the modernisation of rules governing collecting societies, the DADVSI Act tackles two controversial matters: the downloading of files in breach of copyright and civil servants’ copyright.
The new Article L. 335-2-1 IPC provides that the offer of any software, the sole purpose of which is to provide unauthorised access to copyright protected works, may give rise to criminal sanctions of a fine up to €300,000 and/or three years’ imprisonment. There is no express provision as to whether such a claim may be brought against internet users who download files from the internet without authorisation using software provided by professional operators.
Insofar as the copyright in works created by civil servants is concerned, the DADVSI Act dramatically modifies the previous position. Now, as long as a work has been created by a civil servant in the course of a public service commission, the copyright is deemed to be transferred to the state. This is contrary to the old principle laid down in Article L. 131-3 IPC, whereby the transfer of author rights is subject to each of the assigned rights being separately mentioned in the deed of assignment.
This article is intended merely to highlight issues and not to be comprehensive, nor to provide legal advice. Should you have any questions on issues reported here or on other areas of law, please contact one of your regular contacts at Linklaters.