Provisions regarding the technical protection of computer programs

Art. L. 331-5. – Effective technical measures intended to prevent or limit usage unauthorized by the holder of a copyright or of neighboring rights on a work, a performance, a phonogram, a videogram or a broadcast, are protected under the conditions provided under this title. Those provisions are not applicable to software;

A technical measure, as mentioned in the preceding paragraph, means any technology, device or component, which, within the normal course of its operation, achieves the protection mentioned in the preceding paragraph. Those technical measures shall be deemed effective where the use, as mentioned in the previous paragraph, is controlled through application of an access control, a protection process such as encryption, scrambling or any other transformation of the work or subject-matter, or through a copy-control mechanism which achieves the protection objective.

Development licenses of technical measures shall be granted on equitable and non-discriminatory conditions to manufacturers of technical systems or to service providers who want to achieve interoperability, where those manufacturers or providers commit themselves to respect, in their field of activity, the conditions guaranteeing the secure functioning of the technical measures they use.

Art. L. 331-6. – The rightholders mentioned in article L. 331-5 shall take, within a reasonable amount of time, if necessary after agreement with other parties concerned, measures which effectively allow to benefit from the exemptions, as defined in the subsections 2° (private-copy) and 7° (people with disabilities) of article L. 122-5 (copyright) and in the subsections 2° (private-copy) and 6° (people with disabilities) of article L. 211-3 (neighboring rights), where the beneficiary of the exemption has legal access to the work or to the phonogram, videogram or broadcast, and where the exemption does not conflict with the normal exploitation of the work or other protected subject matter and does not unreasonably prejudice the legitimate interests of the rightholder on that protected work or subject-matter.

The rightholders may take measures allowing to limit the number of copies.

The rightholders are not required to take the measures as mentioned in the first subparagraph where the work or other subject-matter is made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time chosen by them.

Art. L. 331-7. - Any dispute concerning the benefit from the exemptions, defined in the subsections 2° (private-copy) and 7° (people with disabilities) of article L. 122-5 (copyright) and in the subsections 2° (private-copy) and 6° (people with disabilities) of article L. 211-3 (neighboring rights), involving a technical measure mentioned in article L. 331-5, shall be submitted to a board of mediators composed of three qualified persons nominated by decree. Two mediators shall be selected among magistrates or civil servants who belong to, or have belonged to, a body whose independence is guaranteed by its status; they then designate the third mediator to be nominated. Their mandate lasts six years and is non-renewable.

This authority shall be seized by any person benefiting from exemptions mentioned in the first subparagraph or by any legal entity representing that person.

Art. L. 331-8. – While respecting the rights of the parties, the board of mediators shall promote a settlement. When the board sets the terms of settlement, these terms have mandatory effect; the terms shall be deposited to the clerk of the civil court of first instance ("tribunal d'instance").

In the absence of settlement, the board of mediators shall held a motivated decision dismissing the request or issue an injunction prescribing, if necessary with a daily fine, appropriate measures to ensure the effective benefit from the exemption. The fine decided by the board shall be cleared by the board.

Those decisions as well as the terms of settlement shall be made public in compliance with the respect of secrets protected by the law. They are notified to the parties who can appeal in front of the Court of Appeals of Paris. The appeal has a suspensive effect.

Art. L. 335-3-1. – The following acts shall be assimilated to copyright infringement:

1° knowingly damaging a technical measure mentioned in article L. 331-5, aiming at altering the protection granted by this measure applied to a protected work;

2° knowingly manufacturing or importing a technological application, a device or a component or providing a service, intended to facilitate or enable the act mentioned in 1° above;

3° knowingly retaining for sale, lending or rental, offering for sale, lending or rental, making available in any form any technological application, device or component, or providing a service intended to facilitate or enable the act mentioned in 1° above;

4° knowingly ordering, designing, organizing, reproducing, distributing or diffusing an advertisement, or making known, directly or indirectly, a technological application, a device, a component or a service intended to facilitate or enable, totally or partly, one of the acts mentioned in 1° or 2° above.

Art. L. 342-3-1. - The effective technical measures defined in article L. 331-5, which effectively prevent or restrict the usage of a database which the producer has not authorized pursuant to article L. 342-1, shall be protected by the provisions of article L. 335-4-1.

The producers of databases shall take, within a reasonable amount of time, if necessary after agreement with the other parties concerned, voluntary measures allowing to benefit from the exemptions defined in article L. 342-3 under the conditions provided in article L. 331-6.

Translation by Menno Briët / Anne-Catherine Lorrain