122 5 of the Code of intellectual property

By Béatrice Martinet, lawyer to the Court, law firm Salans

Under the terms of the front last paragraph of the new article l. 122 - 5 of the intellectual property Code, enshrined in the law DADVSI, "the exceptions listed in this article may prejudice the normal exploitation of the work or unreasonably prejudice the legitimate interests of the author". This small sentence trivial appearances, devoted for the first time in French law "rule of the triple test" or "the three steps test" limited exceptions to the monopoly of the author: in certain special cases which do not affect the normal exploitation of the work, and cause no unreasonably prejudice the legitimate interests of the author. However, this theory of the triple test, devoted for the first time in 1967 at the Stockholm Conference of revision of the Berne Convention for the protection of literary and artistic of 9 September 1886 works, and then registered in many international conventions, such as the TRIPS Agreement, WIPO Treaty or the directive of 22 May 2001 Europeanis undoubtedly American inspiration. In the us the copyright indeed system, the author of a work of the spirit cannot oppose "legitimate" of his work, defined on a case by case basis by the courts seized, or "just" use in function including four criteria (oven balance test) with respect: to the purpose and character of the use (use will more often be "legitimate" when a purpose educational or pedagogical when it is purely profit); the nature of the copyrighted work (some works by the success that they met or originality that characterizes them, are better protected than others); the volume and importance used part (use of extract is more often considered just as the full resumption of work); and the impact of this use on the market potential of the work or its value (this is the rule of the triple test requiring that use does not infringe the normal exploitation of the work and that it does not unreasonably prejudice the legitimate interests of the author).

Once we recognize an exception to the monopoly of the author, therefore, in the US system of "fair use" (or "fair dealing", similar theory in English copyright), as in the system of the "triple test", that this exception does not troubled the peaceful exploitation of the work by its holder. Yet, while this theory offers the American judge a flexibility to sanction or not conduct their context, it is involved in French law as a new deadline already strictly defined exceptions. It is also clear from the first judgment of the Court of cassation by application of the rule of the "triple test" before it is transposed into French law. In this case, known as the "mulholland Drive", Mr P. complained of had been unable to make a copy on video cassette the DVD version of the film Mulholland Drive (to see on the video player of his parents) because of the technical protection measures that were inserted on this DVD. His claim was dismissed at trial but the Court of appeal of Paris, in a judgment of 22 April 2005 that made a lot of ink, gave him reason on the grounds that such a measure was incompatible with the exception of private copying formally provided for in article l. 122 - 5 of the Code of intellectual property. However, in a decision not less commented on February 28, 2006, the Cour de cassation, applying for the first time in French of the rule of the triple test, broke this judgment on the ground inter alia that: "the exception for private copying (...)" cannot prevent the insertion in the media on which a copyrighted work of technical measures of protection to prevent copying, where it would affect the normal exploitation of the work, is reproduced which must be assessed taking account of the economic impact of such a copy may be in the context of the digital environment "."

From coming to the aid of users, the rule of the triple test is here applied to better assert the rights of the author and publishers, including in circumstances expressly covered by the Code of the IP as an exception to the right of the author. In this regard, adaptation to digital measures planned by the DADVSI Act, particularly after the censorship of the Constitutional Council, are that confirm this impression. Not only the DADVSI Act makes no exception for the benefit of the users of software "peer-to-peer", but it still guarantees the right to protect themselves with technological protection measures to the authors and producers and strengthens the sanctions applicable to publishers of illegal peer to peer sites and software developers to access these sites, or the misuse of technological protection measures. The users of these sites, one remembers that the DADVSI Act had made a commendable effort to take into account the reality of the digital, by download on peer to peer sites a single contravention and providing for a system of penalties proportionate to the importance of the download. Yet, it was one of those provisions which were censored by the Constitutional Council in a decision of 27 July 2006 on the ground inter alia that "the characteristics of the exchange of peer-to-peer networks did not justify such a difference in treatment". In the meantime, download on Internet is therefore a crime, small number of his followers.

After parliamentary debates and long debates, which were passionate and divided society, the law on copyright and neighbouring rights (DADVSI) information society - transposing in French law the European directive of 22 May 2001 No. 2001/29/EC on the harmonisation of certain aspects of the law of copyright and neighbouring rights in the information society - was finally adopted on August 1.