French Court: DVD Protection Incompatible with Private Copying Exception

Last Wednesday I posted on a French court decision that underlined the legality of copy protection measures. I pointed out that this decision was more about the possibility to use consumer protection law to protect consumers against such measures, rather than through copyright law itself (e.g. private copying clause). In the last paragraph I noted that a real decision about private copying would be given in a few days in another case, possibly generating more sensationalistic headlines like "Court Kills the Right that Never Was".

The decision came on Friday, but he headline is different then expected, as the title of this post makes clear. A Paris Court of Appeal reversed an earlier decision that had rejected private use as a right and now prohibited the use of copy protection measures on DVDs, being incompatible with this private use. For some background an excerpt from Natali Helberger's article on the first, reversed decision:

The personal copying exception in French copyright law, so the court says, has not the quality of a "right". Instead, the personal copying exception describes the (exceptional) case that consumers who want to make a copy for personal use are not obliged to acquire the rightsholder's permission before doing so. The court went further and argued that nothing different could apply once France had implemented the European Copyright Directive. The Directive left it to member states whether they would provide for a personal copying exception. But even if France decided to do so, the personal copying exception must, according to the Directive, not conflict with the normal exploitation of a work or unreasonably prejudice the legitimate interests of rightsholders. The court then decided that the selling of copies of DVDs was a case of normal exploitation, and rightsholders had a legitimate interest to recoup the investments made.

The latest decision apparently takes a different stand. I've not yet found the ruling, but it is an interesting one, not the least from the perspective of European law. As said, the European Copyright Directive (EUCD) leaves it to member states to ensure that consumers can benefit from copyright exemptions, if the rightsholders using the protection measures don't do so voluntarily (article. 6(4) EUCD). However, fifteen of the 21 exemptions under the EUCD do not have to be provided, amongst which private use. The national provision of a private copying exemption is not mandatory on the basis of the EUCD. This leaves much to decide to the courts, if the national legislature fails or chooses not to intervene.

In general France is taking some interesting steps when it comes to the protection of private use. This latest decision follows on an earlier one, which acquitted a 500+ movies downloader and burner on the basis of the private copying clause. French magistrates also speak out for the "MP3 generation". However, some of the court decision are not in line with each other. This seems very much a transition period that lacks clarity on which side of interests will finally be solidified.

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Also Urs Gasser
French report + English translation