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European IP Bulletin, Issue 22, May - Copyright
Copyright
4. France: a Step Backwards for Digital Rights Management Implementation
In Stéphane P and Association UFC v Universal Pictures Video France (22 April 2005), the French Court of Appeal confirmed the validity of the private copy exception, whereby consumers may make a private copy of a work strictly for their personal use. In doing so, it reversed the judgment at first instance but, more importantly, it restricted the use of Digital Right Management systems (DRM) which do not allow the user to make copies intended for private use.
The appellant bought a DVD of the movie “Mulholland Drive”. He wanted to watch it at his mother’s house but she only owned a video recorder. He decided to copy the DVD onto a VHS cassette but was prevented from doing so by DRM protection. He made a complaint to UFC, the consumers’ body, and they decided to act jointly against Universal Pictures Video France. After the first decision went against them, both decided to appeal.
The French Court of Appeal noted that the circumstances had to be considered under the framework laid down by Article 9(2) of the Berne Convention and Article 5(5) of the Infosoc Directive (2001/29/EC)(“the Directive”), as they define the necessary requisites to grant exceptions to copyright infringement. The “three-step-test” establishes that an exception can be granted only in special cases, when it does not represent an obstacle to the normal exploitation of the work, and when it does not prejudice the legitimate interest of the right holder. The Court of Appeal found that those conditions were fulfilled.
Moreover, the Court of Appeal referred to the alleged violation of Article L111-1 of the French Consumers Code. The Court stated that while the packaging of the DVD did contain the copy prohibited label, the characters were far too small and essentially insufficient to fulfil the obligation to inform consumers of the obligations not to copy.
In ruling in favour of the Appellants, the Court of Appeal warned against the use of such technological measures preventing such private use copying.
Interestingly, as well as providing judgment in the case at hand, the Court also offered a clarification of the French legal framework in respect of copyright. It pointed out that the Directive delegates to the Member States the establishment of national exceptions under the condition that “the right holders receive fair compensation” (Article 5(b)). The French Intellectual Property Code was found to comply with the European provisions, including the levies imposed on blank digital (CD and DVD) and recording equipment. Levies are designed to redistribute income to authors who cannot obtain returns for unauthorised copies. Levies have so far not been adopted in the UK, where they have encountered severe opposition.
5. BBC Creative Licence on Archive Copyright
On 13 April 2005, the BBC along, with other British broadcasters, launched an online initiative, which will allow people to legally download, manipulate and share film. The BBC, Channel 4, the British Film Institute and the Open University have joined to create the Creative Archive Licence.
The Creative Archive Licence will allow people to download and use footage and audio files for non-commercial purposes. Each user will agree to abide by the licence conditions before gaining access to any of the available material. The scheme aims to:
- Pioneer a new, more refined approach to rights in the digital age
- Encourage the establishment of a public domain of audio-visual material
- Help stimulate the growth of the creative economy in the UK
- Establish a model for others in the industry and public sector to follow
- Exemplify a new, open relationship between the four partners in the pilot schemes and other industry players
It is hoped that pilot download schemes will help fuel creative activity across Britain as people utilise the footage in personal projects, classroom presentations and their own artistic creations.
The long-term aim is that some of those creations can be uploaded back on to the website from where the content was obtained, to be shared with others across the internet.
During the pilot, the BBC plans on making footage from natural history and factual programmes available to view, edit and share under the Creative Archive Licence. There is however, a commitment to add extracts from other genres in due course.
The British Film Institute will offer selected footage in a number of categories, including silent comedy, early literary adaptations, newsreel footage and archive footage of British cities in the early 20th century.
The Open University will make available video and audio teaching material from a range of genres including geography, science and history, as well as footage from the popular Open University and BBC series Rough Science during the pilot scheme.
Channel 4’s content will include specially commissioned establishing shots and general views (GVs) available via Channel 4's broadband documentary channel, FourDocs, alongside copyright-cleared video clips for Video Jockeys currently available via its IDEASFACTORY creative careers site and other material from Channel 4 Education.
The Creative Archive Licence is inspired by the Creative Commons System, a US system that offers a flexible range of protections and freedom for authors and artists.
Since the BBC is licence fee funded, it is releasing the content only to UK internet users, using a technology called GeoIP filtering which will ensure the content will only be available to UK hosts.
6. Dutch Industry Anxious Over Proposed MP3 Tax
The Stichting Thuiskopie foundation has proposed a tax on MP3 players that could soon become law unless the European Commission intervenes. The tax, which aims to compensate right holders for lost royalties from private copying of music, images and movies, will be based on the amount of storage at €3.28 per gigabyte. This would increase the price of a 40Gb Apple iPod by more than €130. The levy will be administered by the foundation, which already collects levies on blank recording media such as CDs, and DVDs imposed under the 1912 Copyright Act and the 1933 Neighbouring Rights Act.
The proposed tax could severely affect sales of MP3 players and there are fears that although the current scope of the legislation is limited to hard drive MP3 players, it could be extended to other media storage devices such as PC hard drives. Consumers argue that because most iPods have Digital Rights Management (DRM) protection, meaning that access is limited to authorised users, they will be paying twice for the copyright once the tax is in place. In addition, where MP3 players are not DRM protected, the levy might lead to infringement of copyright by users who may argue that they will have already paid for the copyright through the levy.
Consumer electronics companies such as Apple, Sony and Philips are concerned that the tax could hit sales and also fear that the proposed tax will deter hardware companies from launching new products in Europe.
There are also proposals in Belgium for a similar levy on MP3 players while Germany already imposes a levy on PC hard drives. In Canada, MP3 players are taxed at the rate of CDN $15 for players with 1 to 10 GB and CDN $25 for those over 10GB.
The Information and Communications Technology industry and consumer groups are currently lobbying against the introduction of the tax and as there is no indication of intervention by the European Commission, is it only a matter of time before a decision is made by the Dutch parliament.
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