1. Copyright and Digital Rights Management
-France and Other Alternative Business Models.
Introduction
It is the "… dawn of an equitable internet", said French Culture Minister M. Renaud
Donnedieu de Vabresi in respect of proposed French legislationii dealing with copyright,
interoperability and digital rights management (“DRM”), which by a narrow margin of
60 – 40 and severe amendmentsiii due to industry pressure has just passediv its second
reading in France’s lower Parliamentv.
If the proposed legislation does indeed become law, it will bring France’s concepts of
copyright protection of digital information into direct confrontation with the U.S’s
traditional concepts of the raison d’être of copyright - as essentially a property right -
now heavily protected by digital rights management technologyvi and the Digital
Millennium Copyright Act 1988vii.
Unfortunately, such proprietary ideas have resulted in an uneven trade - off between the
rights of the copyright owner to control his work – and consequently capture the resulting
revenue stream, as opposed to the rights of the consumer to enjoy the work in such a
manner as she thinks fit - having produced the revenue income. Added to the broth is the
more noble and humanistic right of creating advances in technology, free from undue
encumbrances, so as to serve and benefit mankind as a whole.viii
© Geraldine Noel 2012

2. There can be no doubt that what is required is a rethink as to the direction that the law of
copyright protection is headed, that the pie of the privilege to enjoy copyright must be
shared more equally as between the competing parties of producer, consumer and
innovator, 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 unit
of digital data, which through human ingenuity, packaging and concept can result that is
become, without limit, either software, music or the written and/or spoken word. As
such, this paper is not confined to the on-line music arena, but instead is intended to be
applicable to any information that can be shared in a digital environment.ix
Part One
France & U.S – Alternative Concepts?
The legislationx currently in progress in the French Parliament, if passed, would make it
mandatory that anyone creating digital rights management technology, otherwise known
as technical protection measures (‘TPM”), would have to provide others, upon request,
with sufficient information about their TPM, so as to enable third parties to achieve
interoperability with their own devicesxi. In the event that creators of TPM were to refuse
to provide information or sufficient information, that third party could petition the French
Justice Minister in order to compel its furnishing.
© Geraldine Noel 2012

3. The driving catalyst behind the proposed legislation, is to force those corporations seen as
either monopolistsxii or potential monopolists – on a market share analysis - from either
forcing others out of the market, or from preventing consumers from enjoying the breadth
of opportunity that such technologies should allowxiii. This issue will not just simply go
away. Already, there are plans afoot for similar legislation to be enacted in Denmarkxiv
However, detractors of the French legislation, argue that the provision of sufficient
information so as to allow interoperability between different technologies is just not
practically possible. That is, that it is just not possible to provide such information
without also providing the associated algorithms that enable DRMT to be what it is – a
protected system of managing digital information. Provision of the information, it is
argued, would allow, indeed, encourage breaches of security. In response, digital
hardware manufacturers, such as Apple Corporationxv with the largest market share of the
portable digital hardware market with their media player iPod™, has called the proposed
legislation “state-sponsored piracy”.xvi
i
Andrew Orlowski, France Votes for DRM Interop, The Register on 21st March 21, 2006,
at
http://www.reghardware.co.uk/2006/03/21/france_drm_interop/
ii
See full text of proposed legislation at: http://www.assemblee-nationale.fr/12/dossiers/
031206.asp
iii
As for the proposed amendments to the nascent French legislation see:
http://recherche.assemblee-nationale.fr/amendements/resultats.asp?NUM_INIT=1206
© Geraldine Noel 2012

4. iv
As of March 23, 2006
v
Bill Rosenblatt, President, Giant Steps, ‘The French Legislation on DRM
Interoperability: Right Problem, Wrong Solution, March 30, 2006, at:
http://www.indicare.org/tiki-read_article.php?articleId=190
vi
Micheal Schlesinger, Overview of Global Implementation of TPMS: Emerging Global
Standards, presented before the Fordham University School of Law 14th Annual
Intellectual Property Law and Policy, on April 20, 2006, which states that globally 99
countries 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 of
Title 17 of the U.S Code, available at
http://www.copyright.gov/title17/92chap1.html#107
viii
For a display of the competing industry attitudes in respect of DRM see Joint Study on
17 U.S.C. Sections 109 and 117 Required Pursuant to DMCA Section 104, Public
Hearing November 29, 2000, Summaries of Testimony, Prepared Statements, and
Transcript
ix
E.g. see the use of web sites to share sheet music and/or guitar tablature of songs, at
http://www.mpa.org/news/show/5
x
Supra
xi
See at http://www.assemblee-nationale.fr/12/projets/pl1206.asp
xii
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

5. 30, 2006, at http://www.entertainmentmanagementonline.com/vnews/display.v/ART/
2006/ 03/30/44296e4201ef5
xiii
See Eric Basngemant, French Parliament Passes DRM Bill. Will Apple Bolt?, March
23, 2006, ARS Technica, at: http://arstechnica.com/news.ars/post/20060321-6428.html
xiv
Jefferson Graham, Will Interoperability Demands End Apple's Digital Music Reign?,
USA Today, March 30, 2006 at: http://www.macnewsworld.com/rsstory/49668.html
xv
See Apple Corporation at http://www.apple.com
xvi
Apple spokeswoman Natalie Kerris, Theage.com, March 24, 2006, at:
http://www.theage.com.au/news/breaking/us-backs-apple-over-fracas-in-
france/2006/03/24/1143083947151.html
© Geraldine Noel 2012