France's Constitutional Council has made a stringent new copyright law even harsher, modifying three articles of the law and striking out a fourth in a review of its constitutionality.
The changes mean that unauthorised sharing of copyright files such as music tracks will become a criminal offence, while those who reverse-engineer DRM (digital rights management) systems in order to develop interoperable software will face six months in prison and a fine of €30,000.
After the National Assembly and the Senate approved the law on June 30, members of the opposition Socialist Party called on the Council to rule the law unconstitutional, citing procedural irregularities in debate, and problems with 11 of the text's articles. However, their appeal backfired: the Council refused to strike down the law in its entirety, and while it accepted their complaints about four of the disputed articles, the effect of the remedies it proposes is far from what the socialists intended.
The ruling has dismayed campaigners against the law, who saw the constitutional review as a last chance to block the law before President Jacques Chirac signed it into effect.
"The decision will satisfy the major record, film and proprietary software companies. The public, the free software community, and the artists are the losers in this affair," said Christophe Espern of copyright reform campaign group EUCD.info.
Aziz Ridouan, president of the Association of Audio Surfers, wrote that as a result of French Minister of Culture Renaud Donnedieu de Vabres' repressive law "12 million French surfers risk five years in prison and a fine of €500,000 each time they download a file over the internet."
Even Deputy Christian Vanneste, a member of the government majority who steered the law through the National Assembly, regretted the ruling, writing in his blog: "The law is validated, but internet surfers have lost a few of its benefits."
Among the benefits Vanneste referred to, the text voted on June 30 allowed an exemption to the penalty for breaking DRM systems if it was done in order to develop interoperable systems, and made unauthorised file sharing a civil matter, not criminal, with a penalty of only €38.
'Unfair' on personal use
The socialists protested that Article 24 of the text made the law on copying of protected copyright works for personal use unfair. It created an exemption for the use of file-sharing software, making it a civil offence, but left other methods of copying subject to criminal penalties for piracy, defined elsewhere. Copying music for personal use is currently legal in France, and the price of all blank recording media, from cassette tapes to flash memory sticks, includes a special levy that is used to compensate artists.
Rather than modify the article to treat all unauthorised copying of protected copyright works for personal use as a civil offence, whatever the means employed, the Council struck out the article in its entirety, exposing all online copying to criminal sanctions.
The Council's decision undermines the assurances given by De Vabres, who said earlier this year that the law offered a "measured response" to file sharing, and that file sharers would no longer face prison.
The interoperability element makes it possible for competitors of, for example, Apple's iPod, to build players capable of playing music bought from the iTunes Music Store, or for others to create online music stores selling protected works that will play on an iPod.
For now, Apple refuses to license its DRM system to others, leaving those wishing to create interoperable systems no option but to reverse-engineer Apple's system by breaking the DRM protection. The June 30 punished the breaking of DRM protection by six months in prison and a €30,000 fine, but exempted those doing so to develop interoperable systems.
With so much at stake for open-source developers and others wanting to build interoperable music and video players while staying on the right side of the law, the socialists had asked the Council to define the term "interoperability" undefined in the text. But the Council, rather than clarify matters, simply deleted the word, removing the exemption and exposing open-source DRM developers to the full force of the law.