Loi DADVSI (generally pronounced as ) 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 Lnnn.
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"The article numbers refer to the numbering of the draft text. Because new articles were inserted, some article numbers are somewhat complex: "12 bis" refers to a new article after article 12 but before 13; "12 ter" appears after "12 bis" but before 13; "14 quater" appears after "14 ter" but before 15, etc. Following the vote, the articles were renumbered using strictly positive integers. 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.On March 14, 2006, on behalf of the National Assembly law commission deputy Christian Vanneste (UMP) took out the only amendment which would have permitted at least one copy, for private usage, of works that had been legally acquired (CD's, DVD's etc.) This withdrawal of the amendment was presented as in accordance with a recent court decision from the Cour de cassation stating that copying DVDs for private use was not an automatic right. This decision cited the not-yet-transposed directive and the "test in three steps" from the WIPO treaties rather a "college of mediators", composed in part of judges, would examine each issue on a case-to-case basis. See
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.