Blog de Philippe Aigrain's blog

The three-step is a legal constuction that defines the fundamental framework applying to exceptions and limitations to copyright. It authorises States to define such exceptions and limitations provided that they apply to certain special cases, they do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. Exceptions and limitations are important as such, for instance because they are necessary to certain essential activities in our societies: criticism, education, research, etc. The efficient organisation of the funding and remuneration of creative activities also calls for putting in place mechanisms that are potentially submitted to the three-step test. The three-step test was introduced in the Stockholm revision (1967) to the Bern Convention for the Protection of Literary and Artistic Works, where it became article 9.2. It applied at the time only to the right of reproduction. It was later introduced in the TRIPS agreement whose article 13 extends its applications to all exclusive rights associated to copyright. It was reproduced in the 1996 WIPO copyright treaties (article 10 for the WCT) and reproduced verbatim in the European directive on copyright and related rights in the information society (EUCD, article 5.5), which had the effect to yet again extends its scope. Some European countries, such as France, choose to also reproduce (sometimes repeatedly) its text in their transposition of this directive.

Various interest groups have promoted more and more maximalist interpretations of the three-step test. Accepting these interpretations would in practice make more and more difficult to create or confirm limitations and exceptions, and would summit their benefit to a permanent review that would install a total legal insecurity for their exercise. Unfortunately, some legal decision such as Mulholland Drive decision of the French Cour de cassation seem to have followed these maximalist interpretations.

One must thus welcome as a major milestone the adoption by a group bringing together many of the best copyright legal specialists in Europe of a Declaration calling for a balanced interpreation of the “three-step test” in copyright law. This declaration is remarkable in its argumentation as well as in its substantive content. Read it, support it, make it known. Here is a small extract:

The Three-Step Test’s restriction of limitations and exceptions to exclusive rights to certain special cases does not prevent (a) legislatures from introducing open ended limitations and exceptions, so long as the scope of such limitations and exceptions is reasonably foreseeable;

This post is not available in English, you can read the French version

My last post received some attention and triggered a few reactions. I wrote a text denouncing a system that I judge dangerous for democracy. To describe it, I recalled the itinerary of people, their deeds, the way in which specific interests and visions of the public interest can no longer be distinguished in them. Some of these people have been hurt, in particular those playing only a marginal role in my story, for whom the juxtaposition with other people, other acts or the words I used seemed unfair. There is no point in not taking responsibility for it. I spoke of a system that corrupts policy-making because I am convinced that such as system exists. Where I am more worried is in reading some reactions that seem to take pleasure in the personal attacks. So let’s make it clear. To my knowledge, people quoted in my article haven’t done anything that is illegal (as would be corruption in the legal sense). They have done what their environment considered as normal. This is precisely where there is a serious problem. My post was about changing this environment.

This post is dedicated to Lawrence Lessig as a tribute to his decision on 17 June 2007 to switch his focus from the intellectual rights environment struggles to the fight against corruption in decision-making. I am sole responsible for the contents of the post.

This is an unusually long post, even by the standards of this blog. I urge you to read it to the end, the interesting stuff is spread all along.

On Monday 7 July 2008, two committees of the European Parliament are going to vote on proposed amendments to the telecomm packet regulation, in what is but a provisional step of a skirmish in a much bigger struggle on the regulatory environment for intellectual rights and freedoms. This is a good time to take a step back and look at another much bigger problem.

A French presidency of the European Union has just started. The last one was in the first semester of 2000. One of the events of the presidency in the cultural domain (see page 20 in linked document) was organised by Valéry Fréland, then working in a directorate of the Ministry of Foreign Affairs and Sylvie Forbin. She was then General Director of Eureka Audiovisual, an intergovernmental programme funding industry actions in the domain of audiovisual media, after a career as a diplomat, including within the French Permanent Representation to the EU. There is not much to report about this event. However, 8 years later, the same two characters participate into what has now become the worse illustration of how specific interests can corrupt decision making. Not by buying it (though we will see below that money plays a role). But by eroding all borders between policy that is made to serve specific interests and the search for public interest. This is much worse, as for-profit corruption only undermines some parts of governance, while decision-making corruption undermines democracy itself.

At the centre of this story of corruption lies one company, but please, don’t think it is a unique case (others will be quoted below): it is just the most impudent and shameless one. This company is Vivendi (formerly Vivendi-Universal). Our story takes off in the Spring 2002 but it roots are older. In 1999, Janelly Fourtou is elected as Member of the European Parliament (then UDF/F/EPP). Her husband is Jean-René Fourtou, a key figure in the French industrial gotha where the CEOs of the largest companies are co-opted in France. At the time, he is the CEO of Aventis, the company resulting from the merger of Rhone-Poulenc and Hoechst. Mr. Fourtou leads the transition of Aventis away from pure chemistry towards pharmaceutics and GMOs (through its subsidiary Aventis Crop, later sold to Bayer). It lobbies agressively for patents (including gene sequence patents). In the Spring of 2002, Jean-René Fourtou quits Aventis. A few months later he becomes President and CEO of Vivendi-Universal (VU in the rest of this text), where he is nominated to clear the mess left by its predecessor, Jean-Marie Messier.

Also in 2002 VU acquired Sylvie Forbin as chief lobbyist (direction of institutional affairs is the classical title). There are indications that she already worked for VU in September 2001. The practice of recruiting high level civil servants as lobbyists is not a monopoly of VU. Microsoft has a remarkable track-record in this respect: in 2002 it recruited the Internet and Trade Policy Adviser (italics parts corrected on 8 and 22 July 2008) in the European Commission Delegation to the US to become Government Affairs Manager. Still in 2002, Microsoft also recruited Detlef Eckert, then head of the policy unit of DG Information Society, to make him for Europe, Middle East and Africa (EMEA) Director responsible for the implementation of the Trustworthy Computing (TWC) initiative. Critics have translated Trustworthy Computing to actually mean Treacherous Computing. Detlef Eckert left the Commission on personal leave, and came back in 2006 as Senior Advisor to the Director General “Information Society and Media” of the European Commission.

Between his departure from Aventis and his arrival at VU, Jean-René Fourtou and his wife invest together large assets (probably originating from his departure bonuses) into a foundation hosted by the Fondation de l’Institut de France. They keep the raw property of the funds, leaving the usufruct to the foundation. This is a classical and legal mechanism that permits to fund a foundation while lowering one’s tax on wealth (such a tax exists in France). The foundation supports cultural exchanges between France and Morocco, where the Fourtou family has a house. In October 2002, Mr. and Ms. Fourtou instruct the foundation to arbitrate (sell) all its assets and buy 1.1 million convertible options issued at this time by VU, for a total amount of 15 million euros. In early 2003, Ms. Janelly Fourtou succeeds in being designated as rapporteur on the first IPR enforcement directive (since then adopted as 2004/48/CE), whose provisions are of a major interest for VU (in reality, the JURI committee of the Parliament discussed of the choice of the rapporteur as early as October 2002, on the basis of information on the future deposit of the text). The directive is adopted in April 2004 after some debatable tricks. The European Commission had decided (after fierce internal debate) to exclude non-commercial infringements from the scope of the directive defined in article 2.1. Ms. Fourtou proposed a compromise where she would reinclude non-commercial infringements against the deletion of patents from the scope. She reincluded patents in the scope at the last minute, so at the end we got both goodies. During the same period, Ms. Fourtou also tables some of the worse amendments to the software patents directive, later rejected by the Parliament.

In August 2004, The VU holding is granted by the French government the world consolidated benefit statute. This statute, whose granting is discretionary, opens for VU the possibility of a reimbuserment of tax credits for an amount of 3800 millions euros in exchange for neglectible counterparts. In practice, VU was reimbursed a little more than 500 million euros for each of the 2 next fiscal years (I don’t know for later years). Mr. Fourtou later precised that the negotiations towards obtaining the statute were initiatied only in Summer of 2003, an important point since if he had been informed in October 2002 of the possible granting of the statute, he could be charged for insider trading when buying the raw property of 15 millions euros worth of VU options (20 millions if one counts a further 5 millions acquired one of the couple’s sons). An enquiry was opened by the French financial market authority, that concluded there was no such insider trading.

Still in 2004, Mr. Fourtou, made President of the International Chamber of Commerce, launches a global lobbying inititiative: BASCAP for Business Action to Stop Counterfeiting And Piracy. He invites ICC members in 80 countries to lobby by all means to obtain stronger regulation at all levels from nations to international treaties. This initiative led to the ACTA trade agreement proposal in WTO. In May 2004, Ms. Fourtou is re-elected to the European Parliament, and her declaration of financial interests is still empty of any mention.

In November 2005, when they become convertible, the VU options bought by the Fourtou family are worth 20 millions more than 3 years before. Have they been converted? Did Mr. and Ms. Fourtou keep the raw property of the options or the product of their conversion? The answers to these questions do not seem to have been reported. But November 2005 sees also the last details of the DADVSI French law transposing the EUCD (2001/29/CE) directive being finalised. Sylvie Forbin, sitting in a committee of the French High Council on Copyright (CSPLA) tables what will remained known as the Vivendi-Universal amendment. It creates the possibility to impose DRMs on software providers. The legal specialists of CSPLA do some legal beautification on the text, removing its most obviously illegal aspects, and CSPLA proposes the amendment to the governement. As public outrage roars, the governement decides not to include the amendment in the law proposal. MPs of the governmental majority table it during the parliamentary debates. The minister of Culture promises not to support it … and then supports it during the debates. The amendment is now part of French law. Ms. Forbin has done her work[1].

It is then for Ms. Fourtou to act again. When the first IPR enforcement directive (2004/48/CE) was adopted, the provisions regarding criminal sanctions for IPR infringement were not included, but a hook was inserted for future work on the matter. These provisions were part of the Commission proposal, just as they are part of the ACTA draft commercial agreement, Mr. Fourtou lobbying’s baby. They went well further than the limited provisions included in TRIPS, and included goodies such as criminal sanctions for abetting or inciting to infringement of IP. Frustrated of the non-inclusion of compulsory minimum criminal sanctions in the 2004/48/CE directive, the IPR lobbies kept pushing for a new text. In July 2005, the Commission had issued directive and Council Decision proposals. Ms. Fourtou again volunteers and gets designated in 2006 as rapporteur for the Council decision part. An uncertainty on the legal basis for the texts in relation with the European Court of Justice case law led the Commission to provisionnally repeal its proposals and spared us a new blow to democracy. Let’s wait to see if we are truly spared it. A new proposal will soon be issued by the Commission, and in case it does not grant to the majors what they dream of, there is still the ACTA commercial agreement proposal to do “better”.

Now it becomes better and better. In September 2007, the new French minister for Culture and Communication, Christine Albanel, acting on orders from President Sarkozy, designates Denis Olivennes, President and CEO of FNAC, operator of one of the for-pay authorized download platforms, to head a committee in charge of reaching agreement between right holders, technology providers and ISPs on how to fight “piracy”. Denis Olivennes has a reputation of having sympathy for the left, and is the author of “La gratuité c’est le vol” (Free of charge is stealing). The committee agrees (provisionnally) on a proposal for a three-strike approach, which will be later turned into the present “Creation and Internet” law proposal. As such a proposal is in obvious contradiction with both the French and the European legal frameworks for privacy, technology neutrality, and non-liability of providers, it becomes essential to be able to remove these obstacles in the European legislation (which imposes itself to the French one).

Things don’t start well for the majors and their allies in some collecting societies. The European Parliament adopts in April 2008 an amendment that rejects the final step of three-strikes approaches (banning from the Internet) as contrary to fundamental rights. It is not that Ms. Fourtou and Ms. Forbin have disappeared. Ms. Forbin has toured MEPs on the eve of the vote. Just after it, Ms. Fourtou and 2 other MEPs who have recently left the French center-right to join President Sarkozy’s UMP party issue a press release denouncing a “very strong lobby of internet users associations” as cause to this anomalous vote. See below for more on the “everything is a lobby” argument to justify corruption of policy-making. The interests in cause will not be destabilized for long. A month later on radio, Pascal Rogard, head of the movie rights collecting society threatens Guy Bono, one of the authors of the amendment: “You have taken us by surprise, but now, be confident that you will hear from us” (my translation).

At some unknown (to me) point, Sylvie Forbin turned to be even more of an asset for Vivendi: she is the wife of Pierre Sellal (link to for pay access contents), Permanent Representative of France to the European Union. The “Perm Reps” are the real “masters” of the European Union. For what concerns the European Council, most of actual decisions on the fate of the European Commission policy proposals are made in their committees (COREPER), the Council of Ministers then formally adopting them. In the French Permanent Representation, Valéry Fréland (see above) is now conseiller for culture and audiovisual matters, a post that Sylvie Forbin occupied many years ago. He will turn to be an unusually active lobbyist for the -not yet formulated by the Commission- proposals for a European level three-strike approach. He visits MEPs, including the authors of the Rocard-Bono-Fjellner multi-party amendment. At this stage, the IP lobbies define a new strategy: let’s make things so complicate that nobody will understand them. They sprinkle Newspeak amendments here and there in the revision proposals for 5 directives constituting the telecom packet (the fundamental regulation of telecommunications in Europe). Newspeak in the sense that their effect is opposite to what they purport to aim at for an innocent reader. Here we are today. Civil society groups exhaust themselves in debunking texts that are so intricate that it takes 6 indirections in other texts to vaguely figure out what they mean. We will lose our time if we don’t clear the policy making corruption mess.

In order to have a chance at it, we must realize that their is a fundamental difference between:

• influence of policy orientation by advocates of particular visions of the general interest, and
• corruption of policy-making by private or organisational interests

Trying to influence policy by arguments on where the public good lies is core to democracy. Yes, even the civil society organisations have to stand clear on any possible conflict of interest, including the simple interest of their own survival. But the misdemeanours and improperties that have been described above are a more specific danger. They undermine the standing of the democratic idea itself. We should expose them repeatedly, any time we are faced with one of their authors.

We should consider them in all parties. Ms. Anne Hidalgo worked in Human Resource Management at the predecessor of Vivendi (Compagnie Général des Eaux) in 1996-97 when that company had already massively diversified its activity in the field of media. Whether for this reason or not [italics parts added on 7 July after I was pointed to the fact that the presentation indeuced the reader to belive there was causality, when there is no proof of it], she has since strong links with the movie production interests, and has firmly held by her responsibilities in the author rights group of the Socialist Party and as its National Secretary for culture. After the surprise vote of an amendment legalising P2P exchanges in the French Parliament on 20 December 2005, she headed the counter-strikes (against global licensing) directed at the socialists. She is rumored to be a promising politician. She would have even better chances if her party removed her from any responsibility connected to the production of the fundamental regulatory framework for creative activities and access to culture. In 2003, Microsoft recruited Thaima Samman, former parliamentary assistant of one of the leaders of the socialist party, as chief lobbyist for France. The socialists should have understood that she was recruited not only because of her undebatable lobbying talents (she was also chief lobbyist in France for the tobacco firm Phillip Morris), but precisely because of her links with them. What should have they done? Simply refused to have her represent Microsoft in any meeting or debate they organised.

Addendum a few hours later: in an environment where it is predominantly large moneyed interests that are heard, it is natural for public interest groups to search for sympathetic views in industry. Even more so when some industry players’ activities positively contribute to their vision of the public interest. However, there is a risk attached to this search. The risk of becoming part of one policy-making corruption for the sake of fighting another one. Often, public interest groups conduct a form of diplomacy with industry, and there is agreement to push for some points in the public agenda. This is OK, but only if the public interest groups make clear that they do not relinquish their views on the points of dissent and make it clear publicly. We are happy that most of Europe’s ICT-related industry does not want filtering mandates for the Internet. Great, but we have to make clear that we do not find OK to agree with them in China. ISPs do not want to be forced to conduct guerillas against their customers. We don’t want them either, but we also disagree on some ISPs discriminating against P2P traffic in terms of quality of service. We do not want to abstain from calling for a flat-rate base contribution by Internet user to the funding and reward of expression and creation distributed on the internet with freedom of non-market exchange between individuals, even though this maybe not be the preferred approach of some industry players who are otherwise sympathetic to our cause. How much public interest groups are influenced by their industry contacts or alliances must remain an object of public scrutiny. And what about people like me who own a (small) company and at the same time are policy advocates. Just the same. I may tell who wants to listen how hard I try to avoid my visions of public interest be influenced by the specific interests of my company. But it will always remain an item to be judged by others. One often hears that free software and free culture groups always fight on details, always criticise each other. But this internal exigence, this permanent debate about where to go and how is their greatest asset.

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[1] The committees of CSPLA include some civil society representatives. However, its reports did not reflect their views in this case. The CSPLA later tried to recover some public standing by taking a more open view on issues where collision with its large private interests representatives was less immediate, such as the voluntary sharing of on-line contents. It could be why CSPLA was sided in terms of elaboration of the next law (see below).

This post is not available in English, you can read the French version

This post is not available in French, you can read the French version

This post is not available in French, you can read the French version

This post is not available in French, you can read the French version

Beyond looking at the past, what can we do now? How can we give a new impetus to the European policies, put human developement and capabilities at their principle, engage them in the direction of solidarity? How can we strengthen their fragile orientation towards environemental quality? How can we open Europe to the great currents that move the world, create a positive orientation between Europe, the emerging countries and what emerges in developing countries? How can we invent Europe as a space for democratic debate, beyond what already exists in the European Parliament? How can we deeply re-orient it without breaking those aspects by which European represents already as a real progress?

If I knew how, I would have said so. We have missed so many opportunities, including the 8 years of the Bush presidency where Europe could easily have installed itself as a better mediator of world affairs. Ironically, we conclude them by the election or re-election of some late caricatures of neo-conservatism. However, there is one thing by which we (we all, politicians as well as citizens) can start: it is to declare a poliitical ambition for Europe, to recognize that that failure to have one leaves Europe’s policies to the interaction between interests and egoticisms. We can declare that we will never vote for a politician who does not tell us prominently what it will do in European policies. We can become to think in European terms (or keep doing it in case we started). The election of Barack Obama as the next President of the United States, will, I hope, open a new era in which a citizen investment in European policies will be only more necessary.

Finally, the present state of European policies and of its democratic processes is no excuse to leave them to their course. Are the National policies and democratic processes so much better?

My post is not available in English, you can read the French version

At the invitation of Squaring the Net and FING, Eben Moglen, chair of the Software Freedom Law Center and enlightening analyst of the stakes of information technology and the Internet, spoke on 5 June 2008 in La Cantine on “Culture and the Internet : what is at stake in the legal framework”. You can access the conference video below. The introductory talks and the first minutes of the conference (10′ total) are in French, the rest in English. Subtitled versions will soon be available on the Squaring the Net site.

A return to Brussels means meetin again with friends, but also finding back the dancing scene. 5 days in a row, the hungarian choregrapher Eszter Salamon and Christine de Smedt (Les Ballets C. de la B.) were presenting Dance n°1 at Kaaitheaterstudio’s. The official presentation announces an ingenious score […] in which the body constantly transforms. This description falls short of the extraordinary power of this choregraphy and of the its execution by the two dancers. We are used to bodies that constantly transform, but nothing prepares us to face bodies that are inhabited with forces that are hidden from us (wind, electricity, nerve spasms ?). What inhabits the dancers seems unhuman, remote even from the animal metaphors that come to our mind when confronted with the strangeness of a gesture. From time to time, they let out a brief human gesture, voluntarily or not. There is much emotion in this fragile parenthesis. During almost an hour, the dancers draw elaborate paths across the scene, but without interfering directly, almost ignoring each other. Then, without notice, the moves of one finish in the body of the other, in a kind of simulated fight.The performance should have stopped there or diluted itself in stillness through the lights shivers with which it starts. The cathartic conclusion with its screams and mad gestures weakens the credibility of this journey beyond our bodies. Maybe it’s to ease our going back.

My post is not available in English, you can read the French version

As announced, Squaring the Net is tabling some proposals that are alternatives to the repression of exchanges over the Internet and to the legislative or regulatory imposition of absurd business models. The most recent contribution is Mutualised schemes for the funding of and reward to creative activities

Two important votes have been decided with the minimal margin yesterday. The first one was for the election of the new General Director of the World Intellectual Property Organization. The newly elected DG will chair the organization in complex times. WIPO must either reform itself to take in account the global demands of innovation, creation, the information commons and access to knowledge or retract itself on a narrow defense and extension of proprietary mechanisms. The Australian candidate, Frances Gurry, won the vote by 42 against 41 to the Brazilian candidate José Graça Aranha. Graça Aranha represented an emerging country engaged in the development agenda and access to knowledge, but with a classically institutional personal profile. Meanwhile Gurry represents a country traditionally favorable to extending proprietary mechanisms, but with a personal reputation of independent thinking in WIPO and a track record of success with the design of the Web domain name dispute resolution mechanism. Recently the US and the European Commission have started side-tracking WIPO, going back to WTO for proposing a new anti-counterfeiting treaty (ACTA) and multiplying bilateral agreements with pro-IP extension clauses. The new DG will have to pursue the reform of WIPO in the direction of a better recognition of information commons and access to knowledge while using its contacts with the countries that supported his candidature to convince them that such a reform is also in the interest of their development. Nota : The arithmetics of votes expressed in the second round should have led logically to the election of Graça Aranha. However 7 out of 19 of the developing countries that supported the Pakistanese candidate have chosen to vote for Gurry.

Meanwhile, the French Parliament was the theater for a real surprise. The vote on a law proposal transposing in French law a European directive on the coexistence between GMO cultures and non-GMO cultures turned to a severe backlash for the government. The right-wing majority was divided in 3 groups: the first one found the law proposal not enough pro-GMO, because of an amendment (adopted at the occasion of another surprise vote) that opened the door to “GMO-free geographical zones”; the second group was sensitive to the rejection of GMO in the public opinion; finally a third group stood for the text The government refused to hold a nominative vote that would have highlighted these divisions. However, many right-wing MPs were afraid that their participation in the vote would be interpreted as supporting the text. They took refuge in absence, which led to the adoption by 136 votes against 135 of a motion refusing to consider the text. This motion was tabled by the left-wing and Green MPs and defended by the communist MP André Chassaigne who will certainly remember yesterday as a good day. Beyond the fun, let’s remind ourselves of the substance: the only problem of GMOs (more precisely the problem that leads to all the others) lies in the patentability of gene sequences and organisms containing them. Without such patents, the agro-food GMOs as we know them would simply not exist: they are nothing else that monopoly-rent-seeking patented chimeric clones (the second half of the appellation is from Jean-Pierre Berlan and Richard Lewontin, I added the first part). It is very difficult to make laws on coexistence without first reversing the laws on patentability. Yesterday’s vote is but a symptom of this difficulty.