With its succession of coups de theatre, the pathetic show of the French EUCD transposition (DADVSI draft law) is going on. After the surprising adoption, on Christmas Eve, of an amendment legalising the exchange of music and video files on the Internet as private copies, compensated by a monthly fee ('global license') collected by ISPs on customers who engage in a certain amount of downloading and uploading, the French National Assembly started a renewed debate on 7 March 2006, based on a deeply modified draft text submitted by the government.
This new version includes two major modifications. The first modification is that the French government has now introduced many exceptions to the author right and related rights, which were already included in the EU Copyright Directive. This is a very welcomed progress since initial versions of the draft transposition were minimal in this respect although the new considered exceptions are still not going as further as the EUCD optional ones.
In particular, the French government prefers to deal with some exceptions through private contractual agreements, instead of guaranteeing them by law. This especially applies to the "pedagogical exception". Members of the scientific community, having found that these agreements do not ensure fair use for education and research, have then started a petition, "considering the shamefully regressive and repressive nature of these new agreements in matters of teaching and research". More than 2000 members of the French scientific community have already signed in favour of this "campaign of civil disobedience", and declared that they "have committed themselves publicly to disobey their minister and the law, and they will continue, no matter what the cost and in spite of any threats or sanctions, to show films, play records, distribute texts... in any way they deem useful and relevant".
The second main proposed modification deals with the penalty regime related to the illegal upload and download of content protected under intellectual property legislation. While still considered as an infraction rather than a lawful private copy exception, downloading such content for non commercial use is subject to the lowest fine in the French penal code (38 euros), instead of the current ambiguous regime, with a threat of high penalty for counterfeit. Uploading under the same conditions could now be subject to the second lowest fine of this code (150 euros) instead of the 3 years of imprisonment and 300 000 euros fine for counterfeit. True counterfeit, as well as upload/download for commercial usage, remains punishable by the high penalty. Penalties related to DRM circumvention, the use of software to this end, as well as the dissemination of software to this end, remain in the intial form of the draft law, while they do not exist in the current legislation, although the government has downsized these penalties compared to its earlier proposal of December 2005 (3750 euros fine, 750 euros fine, and 6 months of imprisonment with 30 000 euros fine, respectively, instead of the penalty for counterfeit).
However, almost 23 hours of preliminary discussions (7-9 March 2006) have mainly been dedicated to procedural issues, disputing the democratic and constitutional validity of the debate. After the Christmas Eve vote, on 6 March, the French government simply announced that it decided to remove the concerned article, replacing it by an amendment and arguing by the (disputed) constitutionality of this process. The day after, most likely after having received 'bad signals' from the Constitutional council (which is not supposed to intervene at this step of the process), it reintroduced this article, together with the new amendment supposed to replace it. Not only is this showing a rather unashamed treatment of the Parliament, but also this attitude confirms the lack of preparation of the French government, which nonetheless pretends to transpose in an emergency procedure a Directive adopted in 2001.
The whole story may probably be explained by the French special (and historical) conception of the 'droit d'auteur' as opposed to the anglo-saxon copyright. As a matter of fact, this is attested by the divisions inside the political majority as well as within the socio-democrat opposition raised by the adoption of the 'global license' on Christmas Eve. Since then, this 'global license' has also been the subject of an incredible lobbying and an apocalyptic debate in the media between its advocates and its opponents. Despite the discourses on the importance of cultural issues used by both sides, we may notice that, unfortunately, culture is indeed considered as a merchandise and, consequently, as a consumer issue, which contradicts the role played by France in the recent adoption of the Unesco Convention on Cultural Diversity in October 2005
In the mean time, core problems with the EU Copyright Directive are being dodged, as noted, inter alia, by the EUCD.info coalition set up since December 2002 by French members of the free-software movement.
The first part of the discussions at the French National Assembly stopped on 9 March. The debate was continued from 14 March, with a vote tentatively scheduled for 21 March 2006. Given the current chaos and the unpredictability of any decision, this report only considers the discussion undertaken until 9 March 2006, included. Future edri-gram issues will report and analyse subsequent developments.
EDRI-gram : French Parliament Is Making The First Step In Legalising P2P
(18.01.06)
http://www.edri.org/edrigram/number4.1/frenchp2p
French National Assembly Dossier, with transcription of the debate (only in
French)
http://www.assemblee-nationale.fr/12/dossiers/031206.asp
Meryem Marzouki - Implementation process of the EUCD Directive in France
(09.2003)
http://www-polytic.lip6.fr/article.php3?id_article=99
Petition: "Call for Civil Disobedience for Pedagogical Exception in France"
(only in French, 9.03.06)
http://www.politechnicart.net/exception
EUCD.info coalition
http://www.eucd.info
(Contribution by Meryem Marzouki, EDRI-member IRIS)