France developed important body of case law
That there is a conflict between DRM use and consumer interests has been demonstrated over the past three years by the number of cases about CDs and DVDs that could not be played on car radios, PCs and laptops or could not be copied and ripped because of installed technical protection measures. Over the course of three years, French courts have developed the argument that the ability to play a CD or a DVD on different devices, including the radios from different brands of cars or different kinds of computers, constitutes an essential characteristic of a CD or DVD.

Consequently, where phonogram or DVD producers failed to warn consumer about possible incompatibilities between content and consumer hardware, the former could be held liable because of misleading behaviour towards the consumer (Tribunal de Nanterre 2003a, Tribunal de Nanterre 2003b). More complicated, and less promising for consumers, was the situation regarding DRM and private copying. Unforgotten is the finding of The Tribunal Paris in one of the earlier DRM cases in France, that there was no "right to private copying" (Tribunal Paris 2004 – the "Mulholland Drive" case). This was a black day for the private copying exception. Worse, it delivered the content industry a standard argument which is still regularly evoked by CD and DVD producers when defending their policy of letting the private copying exception die a forceful, electronic death. However, the last word in this matter was not yet spoken, and a year later the Court of Appeals concluded that there may be no right to private copying, still the private copying exception formed a restriction to the exclusive exploitation rights conferred to right holders, and as such was not at the disposition of DRM users (Court of Appeals, Paris 2005).

There was a new decision on 10. January 2006 about DRM and private copying, on which we will report here. The timing of the case, one might want to add, could not have been better: presently pending before the Assemble Nationale, the French Parliament, is the long-overdue proposal for a revised copyright law that implements the provisions of the European Copyright Directive from 2001, including the section on the swelling conflict between technological protection measures and copyright law. The present article will have a closer look at how the Tribunal de Grande Instance de Paris approached the matter. In a subsequent article (Helberger 2006), we will have a closer look at the pending reform of French law and the implementation of the provisions in the European Copyright Directive (EUCD) that is meant to solve the conflict between copyright exceptions and DRM, Article 6 (4) of the European Copyright Directive.

Christophe R., UFC Que Choisir / Warner Music
This latest case involved Christophe R. and UFC Que Choisir against Warner Music France and the music store Fnac. Christophe R. bought a CD by Phil Collins, "Testify", to discover later that he could not play it on his laptop, nor could he make copies from the CD. All this, according to Christophe R. and UFC Que Choisir, was because of some form of incorporated electronic copy protection. The plaintiffs' arguments – conflict with the "right to private copying" (since the decision of the Paris Court in 2004, it seems to have become standard among defendants of the consumer side, to refer to a "right to private copying", but then in quotation marks) and misleading behaviour – are familiar from earlier cases (see Tribunal Paris 2004, also Tribunal Bruxelles 2004). And again, the defendants insisted that UFC Que Choisir had no active legitimation to bring the case to court, that a right to private copying was non-existent, that the private copying exception would have to be interpreted in the light of the so-called three step test and, this is a new one, that informing consumers about the fact that burning the CD was impossible was futile as copying technology was in a state of constant flux – how could a decent producer keep track and label his products accordingly?

Thankfully, the Paris Court dealt rather curtly with the argument of a lack of legal standing of UFC Que Choisir (not accepted) and the argument of lack of playability (accepted). It then ventured, without further delay, bravely onto a terrain that causes grown-up politicians and law makers to mumble excuses, look in a different direction or at their shoes and do their best to change the topic. I am speaking of Article 6 (4) of the European Copyright Directive. Article 6 (4) of the European Copyright Directive is the provision in the European Copyright Directive that addresses the conflict between DRM and copyright's exceptions. I say "addresses" and not "solves", because all that Article 6 (4) of the EUCD does is to determine rather vaguely that "Member States shall take appropriate measures to ensure that right holders make available to the beneficiary of an exception or limitation … the means of benefiting from that exception or limitation."

Court says: Users of DRM have to respect private copying exception
The Tribunal de Grande Instance Paris, after having defended once again the private copying exception and explaining patiently why it was not in conflict with the three-step-test, stressed the need to interpret French law in the light of the European Directive (see already Court of Appeals, Paris, 2004). The court's interpretation of Article 6 (4) of the EUCD led it to the conclusion that technological protection measures must respect certain exceptions, including the private copying exception. With the understatement that is so characteristic of French judges, the court then expressed in a few words the essence of much scholarly writing and ranting over the past years by observing matter-of-factly: "the application of anti-copying protection devices by phonogram producers causes the statutory limitations of the authors' exclusive rights to authorise or prohibit reproductions to fade" ("La mesure de protection adoptee par le producteur du phonogramme fait disparaître la limite fixée par le législateur au droit exclusif de auteurs d'autoriser ou d'interdire la reproduction de leurs oeuvres"). Indeed.

The court continued with admirable straightforwardness to conclude that it is task of the DRM user, here: the phonogram producer, to make sure that private copying remains possible, despite the application of technological protection measures. In this point, it differed from the findings of the Court of Appeals in the "Mullholland Drive" case. There, the court did not read a principal obligation for rights holders to observe the private copying exception or any other exception in copyright law in Article 6 (4) of the EUCD. Consequently, the Appeals Court refrained from requiring compliance of DRM and the private copying exception, a matter that the court then left for the legislator. It restricted itself to postulate that 'the complete blocking of any possibilities of making private copies was an impermissible behaviour under French copyright law' (Court of Appeals, Paris 2005). In the Christophe R. case, the court was less hesitant and condemned Music Warner to refrain from using technological protection measures on "Testify" that do not allow for private copying. For each day of failure to comply with the order Warner Music will receive a monetary fine. In this concrete case, the conflict between TPMs and private copying was settled, at least for the time being (note: the case can still go on appeal).

Remains only the question what about all other CDs that are not by Phil Collins, produced by Warner Music, bought by Christophe R., called "Testify" and apply private-copying-hostile DRM? The decision of the Tribunal de Grande Instance has binding effect only between the parties immediately concerned. The answer can be read in Article 6 (4) of the EUCD: it is, indeed, up to parliament to settle the conflict.

Bottom line
Until now, France left it to its judges to face frustrated consumers and eloquent industry representatives and to sort out complaints about CDs or DVDs that would not play on a car radio, a PC, a laptop, and/or that could not be copied or ripped. French case law went through different phases: from a "no right to private copying" over explicit invitations to the legislator to take the matter into his hands, up to a ban on DRM that restrict private copying altogether. One thing is for certain: in the end the legislator will have to step in and face the matter. This is already because of the obligation in Article 6 (4) of the European Copyright Directive. So far, the pending proceedings in France to – finally – implement the European Copyright Directive into French law are not too promising. But this is yet another story…

Sources
  • Helberger, Natali (2006): Vive la Balance! Pleading for a French revolution of copyright. INDICARE Monitor, Vol. 2, Numer 12, February 2006; http://www.indicare.org/tiki-read_article.php?articleId=181
  • Senftleben, M. (2004): Copyright, Limitations and the Three-Step Test, Kluwer International, Den Haag, 2004
  • Tribunal de Grande Instance de Nanterre (2003a): Tribunal de Grande Instance de Nenterre 6ème Chambre, judgement du 24 juin 2003, Association CLCV / EMI Muisc France, available at: http://www.legalis.net
  • Tribunal de Grande Instance de Nanterre (2003b): Tribunal de Grande Instance de Nanterre 6ème chambre, judgement du 2 Septembre 2003, Francoise M. / EMI Music France, Auchan France, available at: http://www.legalis.net
  • Tribunal Paris (2004): Tribunal de Grand Instance de Paris 3ème chambre, 2ème section, Stéphane P., UFC Que Choisir/Société Films Alain Sarde et, Judgement du 30 avril 2004, available at http://www.legalis.net
  • Tribunal Bruxelles (2004): Tribunal de première instance de Bruxelles, L'ASBL Association Belge de Consommateurs TestAchats/SE EMI Recorded Muisc Belgium, Sony Music Entertainment (Belgium), SA Universal Music, SA Bertlesmann Music Group Belgium, SA IFPI Belgium, Judgement du 25 mai 2004, No. 2004/46/A du rôle de référes
  • Court of Appeals (2005): Coud d'Appel de Paris 4ème chamber, section B, arrêt du 22 avril 2005, Stéphane P., UFC Que Choisir / Universal Pictures Video France et autres, available at: http://www.legalis.net

About the author: Natali Helberger is senior project researcher at the Institute for Information Law (IViR), Amsterdam. She specialises in the regulation of converging media- and communications markets, electronic control of access to information and information services and the interface between technique and law, European media and intellectual property law. Ms. Helberger participates in the INDICARE project as legal partner. Contact: helberger@ivir.nl

Status: first posted 01/03/06; licensed under Creative Commons; included in the INDICARE Monitor of February 2006
URL: http://www.indicare.org/tiki-read_article.php?articleId=180