France vs Apple, Round Two

A joint committee of members of France’s low and upper houses of parliament have approved a compromise draft of the copyright bill which originally threatened to unravel the DRM model. The compromise is heavily watered down and Apple’s worst fears have been allayed but they remain troubled and have inferred that they may still yet leave the French market.

The most controversial aspects have been removed, including the legitimization of hacking into DRM. But some of the compromise proposals sound unworkable and also a little naďve.

Firstly new regulatory authority proposed by the bill will have the power to force Apple et al to license their file formats to rivals only if their usage restrictions are “additional to, or independent of, those explicitly decided by the copyright holders.” Though DRM clearly helps Apple’s business in many ways, it is originally the technology of choice of the record labels not the digital music companies. Record labels have opted for a DRM model online in order to protect their content.

The great irony is that it was precisely because of Apple’s insistence on more liberal usage rights that we have a much more consumer friendly generation of DRM usage rights than existed before iTunes. The French legislators clearly either don’t know (or forgot) that the pre-Apple European digital music market was characterized by a PC centric model that didn’t allow for ANY transfer to portable devices. Not even an iPod. Once again Apple is taking the brunt of blame when a significant portion lays squarely on the shoulders of the record labels.

Another twist is that it has been reported that the above clause is interpreted by some lawyers to mean that Apple et al

“could avoid sharing their FairPlay and ATRAC3 formats, providing they obtained permission from the artists whose music they sell.”

Either this means that the above clause doesn’t refer to copyright holders (artists typically sign publishing rights away to music publishers who collect and exploit on their behalf and sign recorded works rights away to record labels) or alternatively there is further detail that explicitly brings artists into the licensing equation. If the latter is the case then it betrays a lack of knowledge of the digital music value chain and would be all but unworkable.

Artists simply don’t get involved in digital license negotiations (though some have complained about this) nor have any legal role in doing so, and to do so would be close to unworkable. Just consider the amount of artists that would need to talking to for the 800,000 plus tracks in France’s ITMS, bearing in mind the additional burden of many of those artists no longer working as musicians and the others who are dead. So let’s just hope this is a misinterpretation and the compromise is actually not talking about bringing artists into the equation.