Fordham Law Review Extract Copyright And Digital Rights Management France And Other Alternative Business Models
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Fordham Law Review Extract Copyright And Digital Rights Management France And Other Alternative Business Models Fordham Law Review Extract Copyright And Digital Rights Management France And Other Alternative Business Models Document Transcript

  • Copyright and Digital Rights Management -France and Other Alternative Business Models.IntroductionIt is the "… dawn of an equitable internet", said French Culture Minister M. RenaudDonnedieu de Vabresi in respect of proposed French legislationii dealing with copyright,interoperability and digital rights management (“DRM”), which by a narrow margin of60 – 40 and severe amendmentsiii due to industry pressure has just passediv its secondreading in France’s lower Parliamentv.If the proposed legislation does indeed become law, it will bring France’s concepts ofcopyright protection of digital information into direct confrontation with the U.S’straditional concepts of the raison d’être of copyright - as essentially a property right -now heavily protected by digital rights management technologyvi and the DigitalMillennium Copyright Act 1988vii.Unfortunately, such proprietary ideas have resulted in an uneven trade - off between therights of the copyright owner to control his work – and consequently capture the resultingrevenue stream, as opposed to the rights of the consumer to enjoy the work in such amanner as she thinks fit - having produced the revenue income. Added to the broth is themore noble and humanistic right of creating advances in technology, free from undueencumbrances, so as to serve and benefit mankind as a whole.viii© Geraldine Noel 2012
  • There can be no doubt that what is required is a rethink as to the direction that the law ofcopyright protection is headed, that the pie of the privilege to enjoy copyright must beshared more equally as between the competing parties of producer, consumer andinnovator, so that new technologies may emerge and be enjoyed by all.In this paper we shall use the term copyrightable ‘work/data’ to mean the mere, sole unitof digital data, which through human ingenuity, packaging and concept can result that isbecome, without limit, either software, music or the written and/or spoken word. Assuch, this paper is not confined to the on-line music arena, but instead is intended to beapplicable to any information that can be shared in a digital environment.ixPart OneFrance & U.S – Alternative Concepts?The legislationx currently in progress in the French Parliament, if passed, would make itmandatory that anyone creating digital rights management technology, otherwise knownas technical protection measures (‘TPM”), would have to provide others, upon request,with sufficient information about their TPM, so as to enable third parties to achieveinteroperability with their own devicesxi. In the event that creators of TPM were to refuseto provide information or sufficient information, that third party could petition the FrenchJustice Minister in order to compel its furnishing.© Geraldine Noel 2012
  • The driving catalyst behind the proposed legislation, is to force those corporations seen aseither monopolistsxii or potential monopolists – on a market share analysis - from eitherforcing others out of the market, or from preventing consumers from enjoying the breadthof opportunity that such technologies should allowxiii. This issue will not just simply goaway. Already, there are plans afoot for similar legislation to be enacted in DenmarkxivHowever, detractors of the French legislation, argue that the provision of sufficientinformation so as to allow interoperability between different technologies is just notpractically possible. That is, that it is just not possible to provide such informationwithout also providing the associated algorithms that enable DRMT to be what it is – aprotected system of managing digital information. Provision of the information, it isargued, would allow, indeed, encourage breaches of security. In response, digitalhardware manufacturers, such as Apple Corporationxv with the largest market share of theportable digital hardware market with their media player iPod™, has called the proposedlegislation “state-sponsored piracy”.xvii Andrew Orlowski, France Votes for DRM Interop, The Register on 21st March 21, 2006,at See full text of proposed legislation at: As for the proposed amendments to the nascent French legislation see:© Geraldine Noel 2012
  • iv As of March 23, 2006v Bill Rosenblatt, President, Giant Steps, ‘The French Legislation on DRMInteroperability: Right Problem, Wrong Solution, March 30, 2006, at: Micheal Schlesinger, Overview of Global Implementation of TPMS: Emerging GlobalStandards, presented before the Fordham University School of Law 14th AnnualIntellectual Property Law and Policy, on April 20, 2006, which states that globally 99countries have enacted TPMs so far and 15 countries are considering draft legislation.vii The full text of The Digital Millennium Copyright Act 1988 inserted as chapter 12 ofTitle 17 of the U.S Code, available at For a display of the competing industry attitudes in respect of DRM see Joint Study on17 U.S.C. Sections 109 and 117 Required Pursuant to DMCA Section 104, PublicHearing November 29, 2000, Summaries of Testimony, Prepared Statements, andTranscriptix E.g. see the use of web sites to share sheet music and/or guitar tablature of songs, at Supraxi See at Apple Corp currently commands 75% of the world wide digital market share. See:Rachel Swihart, Apple Sour As French Opt For Interoperability, Associated Press, March© Geraldine Noel 2012
  • 30, 2006, at 03/30/44296e4201ef5xiii See Eric Basngemant, French Parliament Passes DRM Bill. Will Apple Bolt?, March23, 2006, ARS Technica, at: Jefferson Graham, Will Interoperability Demands End Apples Digital Music Reign?,USA Today, March 30, 2006 at: See Apple Corporation at Apple spokeswoman Natalie Kerris,, March 24, 2006, at:© Geraldine Noel 2012