DADVSI law

Loi DADVSI (generally pronounced as ''dadsi'') is the abbreviation of the French ''Loi relative au droit d’auteur et aux droits voisins dans la société de l’information'' (in English: "law on authors' rights and related rights in the information society"). It is a bill reforming French copyright law, mostly in order to implement the 2001 Information Society Directive, which in turn implements a 1996 WIPO treaty.

The law, despite being initially dismissed as highly technical and of no concern to the average person, generated considerable controversy when it was examined by the French Parliament between December 2005 and June 30, 2006, when it was finally voted through by both houses.

Most of the bill focussed on the exchange of copyrighted works over peer-to-peer networks and the criminalizing of the circumvention of digital rights management (DRM) protection measures. Other sections dealt with other matters related to copyright, including rights on resale of works of art, copyright for works produced by government employees and exceptions to copyright for education and the handicapped, among other issues.

The law was controversial within France because of fears that it could significantly hamper free software and might also significantly restrict the right to make copies of copyrighted works for private use.

Some amendments to the bill, not present in the original version, would potentially require manufacturers to share their proprietary digital music formats with other software developers (by way of the need to provide the documentation necessary for interoperability). Because of this, a controversy arose with Apple Computer and associated US industry groups, who loudly protested in the US press; therefore, the DADVSI bill was sometimes referred to as the iTunes law or iPod law in the English-language press (see '' Interoperability and Apple controversy''), although the law is not referred to in this way in France.

Legal background

The title of the DADVSI law refers to ''droit d'auteur et droits voisins'' (authors' rights and related rights). Authors' rights, in French law, have two components:
* economic rights (''droits patrimoniaux''): the exclusive right of the author of a work of the mind to reveal this work according to his or her conditions (that is, for instance, by ceding this right to a publisher);
* moral rights (''droits moraux''), such as: the right for the author to obtain redress against others claiming to be the author of the work; these rights cannot be ceded.
This concept is reflected in the Berne Convention on Copyright.
''Copyright'' is a related concept, but pertains to Anglo-American common law; one notable difference is that copyright does not generally involve moral rights.

The legal clauses governing authors' rights and related rights form the first book of the French Code of Intellectual Property (CPI). This article will thus refer to articles from this code as CPI L''nnn''.

The notion of 'author' extends to that of composer (of music), playwright, painter, photographer, etc., though the law makes it a requirement that the work should be original (or show some supplemental originality, in the case of a derived work) in order to be protected. In practice authors often cede their rights to publishers, who then enforce the "exclusive right" and some are members of societies that enforce their rights on their behalf. The latter is ''de facto'' nearly compulsory in case of songwriters and composers, almost all of whom are members of Sacem.

Performers and publishers of audio recordings enjoy "related rights". These follow different rules and have a shorter duration than the rights of authors. In practice performers often cede their rights to publishers, or have them enforced by societies.

The exclusive right of the author is not absolute. According to WIPO treaties, local legislation may make exceptions to exclusive copyrights only if these exceptions fulfill a "three-step test": limitations and exceptions
* should only concern special cases;
* should not conflict with a normal exploitation of the work;
* should not unreasonably prejudice the legitimate interests of the right holder.

This is how the US doctrine of ''fair use'' is justified with respect to copyright treaties for instance. The 2001 European Directive on Copyright proposes a list of 10 exceptions to copyright that member states can choose to implement or not, in addition to one whose implementation is compulsory (this makes an exception for temporary technical copies, meant to address Web caches and similar systems).

Exceptions to copyright in French law are defined in CPI L122-5. Among them is the notable exception for private copies: French residents may freely make copies of works (except software) for their private use, and freely display those works within their family circle (which is interpreted to include friends), without the agreement of the copyright holder. However, French law includes a "tax on private copies" meant to address the losses incurred by copyright holders; this tax is levied on blank media (audio and video cassettes, CD's, DVD's, as well as memory and hard drives in portable media players). Normally taxation is reserved for legislation, a prerogative of the French Parliament, but a statute endowed an ad hoc commission to set the rates and conditions for this tax.

European directives are generally not directly enforceable in EU member states. They first have to be transposed into local law, generally by an act of the legislature of the member state. While they give a general framework and impose some options they may leave significant leeway: in the case of EUCD, for instance, the directive gives a list of ''optional'' copyright exceptions, and mandates ''appropriate'' legal protection for DRMs, without defining what constitutes an appropriate protection. Member states have to transpose directives within reasonable delays, or they face action by the European Commission. There may be subsequent litigation before the European Court of Justice if subsequent the implementation is deemed to be inadequate.

In March 2006, the Cour de cassation, France's highest court in civil and criminal matters, ruled in a decision nicknamed ''Mulholland Drive'' (from the name of a DVD involved). It quashed a decision by the appeals court of Versailles that ruled that Digital rights management techniques that contradicted the "right to private copy" were illegal. Legal scholars noted the following:
* the manner in which the decision was presented indicated that it was a decision meant to establish doctrine (following the civil law tradition, French courts are theoretically prohibited from judging in the general case so as to establish case law, but in practice the Cour de cassation does so in certain decisions).
* the decision cited the "test in three steps" and the yet untransposed European directive on copyright as source of doctrine, whereas, some legal scholars argue, it is up to the legislature to decide how to apply such principles when making law, not to the courts.
In response an amendment was added to the DADVSI law by the National Assembly, which established a "right to the exception for private copy." However, the scope of this right is unclear, since it was to be decided by a "college of mediators", but it was suppressed from the final text of the law.

The crux of the discussion on private copy is the nature of this so-called "right". One can interpret it weakly, as an exception to the general possibility for copyright holders to prevent any unauthorized distribution of their work, or strongly, as a prohibition for copyright holders to use technical means to prevent private legal copies.

The "three-step test" was also copied into article "1 bis" of the draft law, which updates CPI L122-5. See ''Copyright exceptions''.

Politics

The DADVSI law unexpectedly rose as a somewhat well-publicized topic in national French politics in December 2005 with the vote of the so-called "global license". Two major presidential candidates personally intervened in the controversy while others made declarations.

Legislative process

The initial draft of the law was proposed in 2003 by then Minister of Culture Jean-Jacques Aillagon (Union for a Popular Movement, UMP). Because of various circumstances, including the replacement of Aillagon by Renaud Donnedieu de Vabres (UMP), the bill was presented very late to the French Parliament and was initially to be examined in the National Assembly on December 20, 21 and 22, 2005 just before the Christmas holidays. The government (the cabinet of ministers, as represented by the Minister of Culture) had declared the law to be urgent, which means, under the Constitution of France, that the law would be examined only once by each house of Parliament; the reason given by the minister was that France was threatened by the European Commission with sanctions if it failed to implement the directive.

Despite being initially presented as a technical text the law became hotly controversial. It became perceived as criminalising Internet users for sending files of copyrighted works to each other, as well as being a threat to free software. It was also feared that it would mean, in practice, the end to the right of creating a "private copy": for instance, making a copy of a record onto digital magnetic tape for the private use of the owner of the record, which is currently authorized by CPI L122-5.
.

The examination of the draft law by the National Assembly, initially seen as a quick matter preceding the Christmas break, was marred by several incidents, the best known being the vote on the first amendment of the "global license" (see below). Supplemental sittings of the Assembly had to be allotted in March in order for the law to be fully examined. An important factor was that the schedule of full sittings of the Assembly or the Senate is almost entirely decided by the executive.

Prior to the examination of the law by the assembly in session, the draft bill had been sent to the Commission of Law, without any review by the Commission of Cultural Affairs, as would have been expected of a text presented by the Minister of Culture pertaining to artistic works; this procedure was deplored by some deputies. Deputy Christian Vanneste was commissioned to report on the law.

Deputies from the opposition ( French Socialist Party, PS, French Communist Party, PCF, Greens) as well as the junior majority coalition partner Union for French Democracy (UDF) expressed their opposition to such a highly complex law being rushed through Parliament. On December 21 they supported a motion sending the draft law back for examination in parliamentary commission. However, the Minister of Culture opposed the move stating that he hoped that the "solid parliamentarians from UMP" would not vote for the motion

— a move interpreted as a quasi-order to the deputies from his party not to vote for the motion.

An amended draft law was approved by the National Assembly on March 21, 2006, by 296 votes for, 193 against. The UMP (right-wing), which has the absolute majority at the National Assembly, voted in favour, while the left voted against it. MPs of the center-right UDF voted either against the text or abstained.

The Senate sent the bill before the Commission of Cultural Affairs who commissioned Senator Michel Thollière to report on it. The Commission heard Minister de Vabres on April 4 and recommended a number of amendments. The Senate then examined the law in session on May 4, 9 and 10, 2006, and adopted a number of amendments.

There was still considerable uncertainty on the future of the bill. Prime Minister Dominique de Villepin had the choice between letting the text go back before the National Assembly, then before the Senate for another round of examination or maintaining that the text was urgent and sending it before a mixed commission from both houses of the French Parliament to draft a compromise version to be sent to both houses to be voted upon, with the Assembly being able to have a final say. Minister of Culture Donnedieu de Vabres had promised that he would have the law sent for another reading by both houses if the differences between the texts adopted by the Assembly and the Senate were too great. He contended that those differences between the texts were small enough that the text could be sent before a mixed commission; however, some members of Parliament disagreed. The bill was rumored to be scheduled to be examined by the mixed commission on May 30, but in the end it was not.

On June 15, 2006, despite the request by 20 UMP deputies that the text should be sent to the National Assembly again, the government announced that it would send the bill before the mixed commission on June 22

The text will then be sent before both houses for final approval.

On June 22, in the morning, the mixed commission met. However, the Socialist members soon quit, claiming that the commission was a parody of democracy after discovering during the meeting 55 amendments hardening the Senate text.

Both houses of Parliament finally approved the bill on June 30, the last day of the Parliamentary session. UMP voted in favour, the Communists and Socialists against, and UDF split over it between those voting against and those abstaining from voting. Socialist deputy Patrick Bloche defended a motion of inadmissibility, claiming that the law was unconstitutional and thus that the Assembly had to refuse it; Communist deputies and president of the UDF François Bayrou announced that they supported the motion. The motion was voted down, predictably, because the UMP ruling party had an absolute majority in the Assembly.

On July 7, 2006, the Socialist deputies, 3 Green deputies, 4 Communist deputies, 2 UDF deputies ( François Bayrou, president of UDF, and Hervé Morin, head of the UDF group in the Assembly) filed a recourse before the Constitutional Council. This recourse blocked the signing of the law: the council has one month to decide on the constitutionality of the law except if the Government claims urgency, in which case it has eight days. The recourse included the following claims of lack of constitutionality, based on the ''Declaration of the Rights of Man and of the Citizen'':
* the clarity and sincerity of the legislative process were jeopardized by
** the government withdrawing article 1 after amendments that it disapproved were voted down;
** the mixed parliamentary commission significantly introducing amendments that were neither in the Assembly nor in the Senate text;
* a number of clauses of the law that infringed on the rights of citizens:
** the definition of some crimes being unclear, whereas citizens should be able to understand what is a crime and what is not:
*** exceptions to copyright were restricted by the Berne three-step test in a vague manner. These were now part of French law but ordinary citizens could only guess how to interpret this test, though copyright infringement was a crime;
*** computer programs "manifestly designed for spreading copyrighted works" were criminalized, but no definition was given as to what this means, and the exceptions to this prohibition were also vaguely defined, thus citizens could not know whether such and such program was illegal or not;
*** the voted text of the law admits "interoperability" as a valid goal for exemption from the prohibition of circumvention of DRM protection measures, but, unlike earlier drafts, did not define the word;
** no guarantee was given as to the modes of proof and investigation of the crimes defined in the law.

After the decision of the Constitutional Council the law was submitted to President Jacques Chirac for signature on August 1, 2006.

Political importance

At first sight, the DADVSI law was not meant to be a disputed legal text: it dealt with fairly technical legal points. It was, however, turned into a political hot topic featured in major newspapers and on national television.

The first draft of the DADVSI law criminalized peer-to-peer exchanges of copyrighted works (or, more precisely, copyrighted works whose licenses did not allow such exchanges). The case was made in Parliament that millions of French Internet users, especially among the young, currently traded files on computer networks and that it was thus unrealistic to turn them into felons. Since subsequent reading coincided with the examination of a controversial youth workforce clause known as the CPE, the opposition argued that the government was at war with the youth.

The DADVSI law was used as a platform for various groups or parties for demonstrating opposition to the government policies:
* Deputies for the opposition French Socialist Party supported an alternative scheme known as the "global license", despite the party's divisions on the issue. They denounced the government as repressive, especially against the younger population.
* François Bayrou, president of the center-right party Union for French Democracy (UDF), formerly inside the ruling coalition, used the opportunity to distance itself from the policies of the Union for a Popular Movement (UMP) ruling party. He denounced the parliamentary process that produced the law, which, he claimed, was forced through Parliament under the influence of the executive and lobbies.
* Nicolas Dupont-Aignan, a eurosceptic member of the UMP majority party, distanced himself from the policies of the government and opposed an "unenforceable law".
* Christine Boutin, a member of the UMP majority party and former presidential candidate (2002 French presidential election), with a political platform oriented towards "family values", claimed that it was absurd to turn millions of young people (and possibly, 'some parliamentarians') into criminals.

Lobbying

Some members of the French parliament, as well as other observers, publicly decried the intense lobbying by various groups and industries. Bernard Carayon, UMP deputy for the Tarn ''département'', denounced lobbying, pressures and even blackmail on the part of certain groups on national TV. A number of parliamentarians said they had never seen such intense lobbying from all sides, including a grassroot effort from Internet users and free software advocates which inundated them with letters and emails. At one point, Senator Michel Charasse demanded that parliamentary staff clean out corridors of loitering lobbyists.

Alain Suguenot, a supporter of the global license, UMP deputy for the Côte-d'Or département, hinted that some groups or societies supporting events had threatened to withdraw their support for events in the constituencies of deputies voting in favour of the global license. Suguenot, who is also mayor of the town of Beaune, indicated that his town would no longer support a cinema festival and would replace it by something related to computing and Internet technologies.

Minister of Culture Renaud Donnedieu de Vabres was criticized for being too close to some industry groups.
* At the beginning of the DADVSI discussion in December, Donnedieu de Vabres organised a demonstration of commercial music download platforms inside a room of the National Assembly, where deputies were given a free account with a €10 credit. Opposition deputy Christian Paul denounced this action and the demonstration was shut by president of the Assembly Jean-Louis Debré