What's so special about French EUCD transposition?

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)