Protection of technological measures following the implementation of the Infosoc Directive in France and Sweden - Emphasis on the exception for private copying

Abstract: The emergence of the Internet has created a new legal climate where borders have become increasingly diffused. A risk of unlawful use of material distributed on the Internet is more than a threat&semic today it is reality. The range of unlawful material is immense and copyright holders are missing out on important revenues. Consequently, the Directive on Copyright in the Information Society of 22 May 2001 discusses the way certain technological measures shall receive legal protection and thus any unlawful circumvention of such measures shall be sanctioned. The balance of interest between right holders of protected works and users of such works is a fiercely debated issue. A distortion in the balance is inevitable in the digital environment, where unlawful access to protected works has increased enormously using networks like peer-to-peer. In order to regain the balance between the two interest groups, a protection of technological measures, illegalising circumvention and preparatory acts to circumvention of such measures, was implemented in the Infosoc Directive. By transposing the Directive, Sweden and France joined the harmonised European position concerning technological measures. The ambiguity of the Directive results in divergences in the implementation process. Whereas Sweden chose not to protect access control after initial access, i.e. after a work has been lawfully acquired, France offers a protection for all access controls, thus making all circumvention of technological protection measures illegal. The possibility of making copies identical to the original creates a window of opportunity for extensive copying for private use. This risk actualises the discussion of where to set the boundaries when copies of a great commercial importance are reproduced. Some commentators consider a legal protection for technological protection measures a necessity in order to comply with the new digital climate. Others believe that the actual control of the right holder is strengthened through the application of technological protection measures, and thus a distortion of the balance of interest between right holders and users is at hand. At the creation of the Infosoc Directive, the question of private copying did not cause many polemics since it was a facultative exception left to the appreciation of the Member States. The exception was already present in French and Swedish law, but has been somewhat modified following the implementation of the Infosoc Directive. Whilst Sweden decided to exempt the exception for private copying in the presence of a technological protection measure, France inaugurated a Regulatory Authority, having as one of its purposes the guaranteeing of the benefit from the private copy exception. Thus, the future of the private copy exception in a digital environment is dubious.