Introduction
In an earlier article (Helberger 2004) we reported about the “Mulholland Drive” case – a case that was bad news for private copying. It was the case of Mr Stéphane P. in France who had bought the DVD of Mulholland Drive. Later, he had to realize that technical protection measures in place prevented him from making a copy of this film for his parents. Together with the French consumer organization L’Union fédérale des consommateurs "Que Choisir" (UFC) he started proceedings before the Tribunal de grande instance de Paris 3ème chamber (Tribunal Paris 2004). And he lost. The Paris court dismissed the plaint by saying that the private copying exception in French copyright law was not a right of consumers and, hence of no or little significance for consumers who complain about technical anti-copying protection. The court, moreover, cast some doubt on the compatibility of the private copying exception with the so-called three step test (in more detail see below) in the case of digital copies. The Paris court held that the interests of distributors in selling copies of DVDs was an act of normal exploitation, based on a legitimate interest to recoup the investments made. The pursuance of this interest may not suffer from the possibilities technology offers, namely to make a private copy, so said the court of first instance. But the last word in this matter was not yet spoken.

The case went into appeal and was decided in April of this year (Court of Appeals, Paris 2005). The Court of Appeals repealed the decision of the first instance, and it became clear that it disagreed with most points. The decision is enlightening in many respects. This article will report some of them.

Main arguments of the Court of Appeals
Private copying exception not at the disposal of rights holders
The Court of Appeals answered one nagging question that many readers of the first decision had: even if the private copying exception is not a “right”, can this mean that rights holders are free to simply ignore it? The decision from April made unmistakably clear that the private copying exception, even if it is not a “right” but “just” an exception, is still law. The Court of Appeals said that it is up to the legislator to formulate limitations to the private copying exception or the modalities of limiting the private copying exception (“cette exception légale ne peut être limitée qu’ aux conditions précisées par les textes”). The private copying exception is not per se at the disposal of private parties, such as DVD producers and distributors; they still must abide by the law even if consumers have no corresponding right. The court said explicitly that the complete blocking of any possibilities of making private copies was an impermissible behaviour under French copyright law (“comportement fautif de sociétés qui ont ‘verrouillé’ totalement par des moyens techniques le DVD en cause”).

Making the use of TPM subject to restrictions is a task of the legislator
The Court of Appeals refrained from specifying under which conditions the use of technological measures would not conflict with the private copying exception. The Court of Appeals found that Article 6 (4) of the European Copyright Directive (EUCD 2001), i.e. the provision that addresses the relationship between technological protection measures and exceptions in copyright law, did not formulate a principal obligation for rights holders to observe the private copying exception or any other exception in copyright law. Neither was it up to courts to replace the legislator in this matter determining how technological protection measures should look like in order to be in conformity with copyright law. The court also refrained from drawing any conclusions concerning the interesting question of whether technological measures that do not respect existing boundaries in copyright law still deserve the protection of the so called “anti-circumvention rules”. The decision of the Court of Appeals confirms, however, once more that the rules on the legal protection of technological measures in copyright law are still in many respects flawed and incomplete. It concludes that it is task of the legislator to bring more light in the complicated relationship between private copying and the usage of technological measures.

Three steps forward and two steps back
A second question that the Court of Appeals had to deal with was the possible conflict between the private copying exception and the three step test. The three step test permits to apply an exception in copyright law in certain special cases, namely when the application of that exception does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the rightholder (Article 5 (5) of the European Copyright Directive, Article 9 (2) of the Berne Convention) (cf. EUCD 2001 and Berne Convention). This compatibility of the private copying exception with the three step test is of considerable relevance for the validity of the private copying exception for digital media. In the initial case, the court had argued that distributing copies of DVDs was an act of normal exploitation of films, and that the possibility of making private copies in digital quality would seriously endanger this form of commercial exploitation. In practice, this would mean that the private copying exception would eventually not apply to digital private copies. The Court of Appeals countered this argument and observed, rather reasonably, that preventing a consumer from making a private copy would not imply that the consumer would purchase another DVD with the same content. Moreover, as the Court of Appeals reminded, the interests of rights holders in protecting their commercial interests and investments was already sufficiently safeguarded by the fact that consumers have to pay levies for analogue as well as for digital carrier media exactly for the reason to compensate rights holders for private copies made of a work. Insofar, no conflict between the private copy exception and the three step test could be detected, so said the Court of Appeals.

Copies for parents are private use
In a next step, the Court of Appeals had to look more closely at the question of what a private copy actually is. The opponents argued that Stèphan P., who wished to make a copy for his parents, could not invoke the private copying exception. A copy for one’s parents was not intended for the own, personal use of the person making the copy, so said the court of first instance. Again, the Court of Appeals disagreed. The possibility to make private copies is not restricted to the domestic sphere of the person making and using the copy. It can extend, to a limited extent, also to the family circle. In other words, making a copy for one's parents could be covered by the private copying exception. In this context it is worth mentioning that in most member states a substantial body of national legislation exists on what constitutes private copying, how many copies can still be considered private copying and whether the person copying and using the copy must be identical (for an overview, see Euro-Copyrights.org; cf. sources).

The ability to make private copies is a legitimate expectation
The decision is also ground-breaking insofar as it touches upon aspects of general consumer protection law. The Court of Appeals clarified that the possibility to make copies for private use constitutes an essential characteristic of a DVD. It, thereby, approached one of the crucial and still unsolved questions concerning the relationship of general consumer protection law and copyright law: whether general consumer protection law can be invoked in order to protect legitimate or reasonable expectations that consumers might have on grounds of copyright law, such as the possibility of making copies for private use.

As Schaub (2005) explained, the notion of legitimate or reasonable expectations is key to the application of consumer protection law. Consumer expectations would play a crucial role in determining whether a certain product or a contract relating to it is lawful. So far it was unclear , whether consumers could reasonably expect being able to make private copies of a DVD, applying to the rules provided by general consumer protection law on contracting, unfair commercial practices, defective products and labelling. The question was denied by the court of first instance. As opposed, the Court of Appeals made very clear that the notion of legitimate expectations can also include expectations that flow from copyright law. This is an important step towards improving the legal standing of consumers, as users of copyrighted works. According to the Court of Appeals, expecting to being able to make private copies is not silly at all.

Bottom line
The decision of the Court of Appeals is an important step towards strengthening the position of consumers as regards the use of technical anti-copying measures. It also adds considerably to the ongoing debate about the relationship of technical anti-copying protection measures and the private copying exception. Probably its main conclusion is that the legislator has to clarify this relationship, and that the private copying exception is not at the free disposal of rights holders. This finding may also be interesting for a related question, namely whether the private copying exception can be limited contractually. One example are the user conditions of Apple iTunes, according to which a consumer who purchased a playlist is allowed to copy it at most to seven devices. For the time being, it is still an open question whether iTunes is entitled to impose its particular definition of what private copying is on consumers. Following the decision of the French court, one could argue that the decision of what private copying entails and where its limits are is reserved to legislators and judges, not to private parties. Moreover, the appeal decision prepares the grounds for the application of general consumer protection law in cases where consumers find that the products they have bought prevent them from using this product in a way that is in conformity with copyright law. The court expressed explicitly that consumers can reasonably expect being able to make private copies from a DVD they buy.

Sources
About the author: Natali Helberger is senior project researcher at the Institute for Information Law, University of Amsterdam. She specialises in the regulation of converging media- and communications markets, electronic control of access to information and the interface between technique, media and intellectual property law. Contact: + 31 20 525 3646, helberger@jur.uva.nl

Status: first posted 25/08/05; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=132