HadopiWorkstream:
“Exceptions to Copyright and Related Rights”
A workstream on “Exceptions to Copyright and Related Rights” was initiated by HADOPI on 24 October 2011. It was placed under the responsibility of Jacques Toubon, assisted by two experts, Christophe Alleaume and Cécile Méadel, with the goal of "answering the question as to whether the development of new digital uses calls for modifications to the definition, nature and scope of specific exceptions, with due consideration for their legitimacy", based on an assessment of how the exceptions already recognised by substantive law play out in reality.
The questionnaire that follows was developed as part of this workstream, and is addressed to all parties wishing to contribute. It is left to the contributors’ choice to answer all or part of the questionnaire, in particular when the questions addressed are strictly focused on French law.
Introduction to Questionnaire
1 | Preliminary remark –definition
The exceptions to copyright provided for in French Law primarily by Article L. 122-5 of the Intellectual Property Code (as well as by Article L. 132-4 and L. 132-5 of the French Heritage Code, on the legal deposit and Articles L.211-3 and L.332-4 of the French Intellectual Property Code, on related rights, see Appendix to this Questionnaire) are defined as cases in which the author may not prohibit the dissemination or use of his work once it has been disclosed, in some cases entailing financial compensation. The legal provisions cited above establish a limitative list of these exceptions, which are in principle to be subject to strict interpretation.
Under French law, in order to be construed as an exception, the use of a work must meet several requirements:
· the work must have been disclosed;
· the form of use must match one of the instances provided for in the aforementioned texts;
· use must comply with the three-step test set out in particular in the Bern Convention and the European Directive of 22 May 2001[1]: be limited to certain special cases, not conflict with normal exploitation of the protected object, and not unreasonably prejudice the legitimate interests of the rightholder;
· use cannot infringe the author’s moral right
2 | The Workstream’s Guiding Issue
Exceptions to copyright and related rights reflect the desire to strike a balance between the need to respect copyright and related rights, and that of allowing works to be used within delineated zones of freedom, for the benefit of users.
This balance currently appears to be challenged. . The development of new technologies, by giving rise to new ways of using works (Internet, social networks, streaming, cloud computing, digitisation, etc.) and blurring the lines between public and private use, has shaken to its foundations a right established in part for an entirely different context, and insufficiently adjusted to these new forms of use.
It is challenged in two ways. In the legal sphere, first of all, current legislation on exceptions does not take into account in a fully-satisfactory manner the technical developments mentioned and ways in which works are used today. This can be seen in the increasingly-frequent tendency to invoke forms of law other than intellectual property law, including European Union law, to circumvent the imperfections found (competition law, fundamental rights, etc.). Secondly, where uses are concerned, the ease with which a work can be appropriated and disseminated appears to go against the concept of exceptions and raises the question as to whether it is appropriate to the current setting.
HADOPI thus felt it would be useful to open up this workstream, in order to establish a comprehensive picture of the issue and, if applicable, issue recommendations to remedy the imperfections in the current system and attempt to identify a more satisfactory balance that can bring about a new consensus. This new balance would not be limited to amending and supplementing the exceptions to copyright and related rights; it could aim to institute a “right to except”, or even an “exception law”, which would in particular entail developing an independent legal system that could be invoked before the courts to the same extent as intellectual property law.
3 | Questionnaire Focus
The questionnaire below will be used to gain a perspective on the current situation, based on the responses of professionals, the public and institutional players. It will contribute to a report planned along three main avenues, to be produced by HADOPI in summer or autumn 2012.
The questionnaire is divided into three sections:
1- Taking stock of currently-recognised exceptions: extent to which the current scope and definitions of current exceptions are adequate and reality of their benefits;
2- Analysing the mechanisms governing exceptions to copyright and related rights: three-step test, lawfulness of the source, compensation system;
3- Exploring the legitimacy and social acceptability of the exceptions: legitimacy of current law, change in the scope of exceptions, discussion about the possibility of implementing an exception law.
Questionnaire[(]
1 | Part 1
Taking Stock of Currently-Recognised Exceptions
1-1 Exception for private and gratuitous performances carried out exclusively within the family circle (L. 122-5 1°)
a) Are difficulties encountered when implementing this exception? If so, how do the law and regulations need to be adjusted?
b) Do you feel that this exception, combined with the exception for transient, and temporary reproduction (L. 122-5 6°), should cover streaming?
c) Should the source used for the performance be legal?
1-2 Exception for private copying(L. 122-5 2°)
a) Are difficulties encountered when implementing this exception? If so, how do the law and regulations need to be adjusted?
b) Specifically, do you find the current definition of “copyer” and what “copying” means in the digital age satisfactory?
c) Do you think it would make sense to set a maximum number of copies allowed? Should this threshold be the same for all medium?
d) How do you see the French 20 December 2011 Act, which provides that, for private copying, a legal source is required (L. 122-5 2° now requires that any copy be made “from a legal source” in order to be eligible for exemption)?
· What drawbacks, difficulties, or to the contrary, benefits do you see to such a change?
· On the basis of what criteria should this legality be determined (should ownership of the medium of materialization be requested? Should the exception beneficiary be asked to verify the full chain of rights, or instead be content with a body of evidence ("manifestly legal")…?
· Do you think that it is possible for Internet users to carry out chain verification at the current time?
1-3 Exception provided for in respect to analyses and “short quotations” (L. 122-5 3° a)
a) Are difficulties encountered when implementing this exception? If so, how do the law and regulations need to be adjusted?
b) Is the current understanding of the concept of “short quotation” satisfactory to you?
c) How do you see the interconnection between this criterion and the intent to respect the author’s moral rights and, thus, not to distort his work with overly-short quotations? Do you feel the current balance in this area is adequate?
d) Are you satisfied with the principle of applying a different system to quotations, depending on whether they are written, musical (quotations barred) or artistic (less clear-cut)?
e) Do you find the brevity of the quotation an appropriate criterion? If so, does this hold for all types of works? What other criterion would you see as appropriate?
f) In the face of new uses, in particular digital, of works, do you see this exception as appropriate?
1-4 Exception provided for in respect to press reviews (L. 122-5 3° b)
a) Are difficulties encountered when implementing this exception? If so, how do the law and regulations need to be adjusted?
b) Should the benefit of this exception be extended to any person wishing to disseminate information, as opposed to only press agencies?
c) Should the exception be extended to new practices in terms of press reviews: information monitoring[2] and above all, “clippings” (specifically-selected and presented information)? If not, why?
1-5 Exception provided for in respect to disseminating speeches intended for the public (L. 122-5 3° c)
Are difficulties encountered when implementing this exception? If so, how do the law and regulations need to be adjusted?
1-6 Exception provided for in respect to reproducing works of art in judicial sales catalogues (L. 122-5 3° d)
Are difficulties encountered when implementing this exception? If so, how do the law and regulations need to be adjusted?
1-7 Exception provided for in respect to showing or copying works for educational purposes (L. 122-5 3°e)
a) Are difficulties encountered when implementing this exception? If so, how do the law and regulations need to be adjusted?
b) Specifically, should this be extended?
· Should the current quantitative limitations placed on articles or pages that can be photocopied be removed, and all educational use of a work be made part of the exception, for instance in the name of the students’ benefit? And in particular for new methods of teaching art history?
· Should the exclusion be maintained in respect to:
o works specially designed for educational use? (why?)
o musical scores? (why?)
o digital publications? (why?)
· Would other extensions be beneficial and possible?
1-8 Exception provided for in respect to parodies, pastiches and caricatures?
(L. 122-5 4°)
Are difficulties encountered when implementing this exception? If so, how do the law and regulations need to be adjusted?
1-9 Exception provided for in respect to acts necessary to access the content of an electronic database (L. 122-5 5°)
Are difficulties encountered when implementing this exception? If so, how do the law and regulations need to be adjusted?
1-10 Exception provided for in respect to transitional technical copies (L. 122-5 6°)
a) Are difficulties encountered when implementing this exception? If so, how do the law and regulations need to be adjusted?
b) The CJEU (4 Oct. 2011) has ruled that the provisional recording of fragments of works in the memory of a decoder or a screen (comparable to streaming) could benefit from this exception. Yet it also rules that there is no reason for the broadcast immediately following this recording to fall outside the author’s monopoly. How do you see this order?
c) Do you feel it is appropriate that software and databases are currently excluded from the scope of this 6°?
1-11 Exception provided for in respect to showings and reproduction of works for the benefit of disabled persons (L. 122-5 7°)
a) Are difficulties encountered when implementing this exception? If so, how do the law and regulations need to be adjusted?
b) Do you feel it is possible to provide that the supply of files by publishers regarding schoolbooks for disabled audiences be automatic, rather than requiring the said audiences to specifically request that supply?
c) Regarding the same files, is an open standard or a useable one preferable?
1-12 Exception provided for in respect to reproductions made by libraries, museums, archives for archiving and consultation purposes (L. 122-5 8°)
a) Are difficulties encountered when implementing this exception? If so, how do the law and regulations need to be adjusted?
b) Is it too broad? Too restricted?
1-13 Exception provided for in respect to reproducing and showing a work of art for informational purposes (L. 122-5 9°)
a) Are difficulties encountered when implementing this exception? If so, how do the law and regulations need to be adjusted?
b) Do you find it satisfactory that this exception, under which uses that do not meet the exception’s requirement, entails payment of remuneration on the basis of specific agreements or prices set in the relevant professional sectors, without the rights-holder having to be consulted?
c) Do you find it appropriate that the current differentiation, based on the type of medium, be maintained? In particular, that photos reproducing copyrighted works are not eligible for the exception?
1-14 Exception provided for in respect to the reproduction of works, based on an ”incidental inclusion”, as acknowledged by case-law
a) What is your assessment of the way in which the law addresses the incidental reproduction of works, for instance in the background of a photo, and not as the main focus: do you feel that the “exception” that appears to be established by French case-law is adequate?
b) Should this exception be incorporated into the law?
1-15 Exception provided for in respect to procedures necessary for the proper performance of a jurisdictional or administrative procedure provided by law, or undertaken for public security reasons. (L. 331-4)
Are difficulties encountered when implementing this exception? If so, how do the law and regulations need to be adjusted?
1-16 Exceptions in respect to software
a) Are difficulties encountered when implementing the exception provided for in respect to acts necessary for the use of a software in accordance with its intended purpose (L. 122-6-1-I)? If so, how do the law and regulations need to be adjusted?
b) Are difficulties encountered when implementing the exception in respect to back-up copies of software (L. 122-6-1-II)? If so, how do the law and regulations need to be adjusted?
c) Are difficulties encountered when implementing the exception provided for in respect to observing, studying or testing software (L. 122-6-1-III)? If so, how do the law and regulations need to be adjusted?
d) Are difficulties encountered when implementing the exception provided for in respect to the decompilation of software for interoperability purposes (L. 122-6-1-IV)? If so, how do the law and regulations need to be adjusted?
1-17 Exceptions in respect to databases (article L. 342-3)
a) Are difficulties encountered when implementing the exception provided for in respect to the extraction or reuse of an insubstantial part of a database’s content (L. 342-3 1°)? If so, how do the law and regulations need to be adjusted?
b) Are difficulties encountered when implementing the exception provided for in respect to the extraction or reuse for private purposes of a qualitatively or quantitatively substantial part of a non-electronic database’s content (L. 342-3 2°)? If so, how do the law and regulations need to be adjusted?