Technological protection measures ("TPMs")

Technological protection measures are the technologies, devices or components that, in the normal course of their operation, are designed to prevent or restrict uses of a work or protected subject matter that are not authorised by the rightholder. They are defined in Article L. 331-5 of the French Intellectual Property Code, which transposes Article 6 of Directive 2001/29/EC and grants them autonomous legal protection, distinct from copyright itself, provided they are effective.

Legal protection of the measures

A measure is effective where the use is controlled by the rightholder through an access code, a protection process such as encryption or scrambling, or a copy control mechanism. The measures must not have the effect of preventing interoperability, and their implementation cannot stand in the way of the free use of the work within the limits of the rights provided for by the Code. Rights-management information, which identifies the work, its author and the conditions of use, enjoys parallel protection. The legislature has entrusted the Regulatory Authority for Audiovisual and Digital Communication with the task of monitoring these measures, settling interoperability disputes and guaranteeing the benefit of the exceptions.

Sanctions for circumvention

Article L. 335-3-1 IPC penalises, on the one hand, knowingly interfering with an effective technological measure for purposes other than research and, on the other hand, more severely, procuring or offering to others means designed or specially adapted to interfere with such a measure. A similar regime sanctions the removal or alteration of rights-management information. The statute reserves the case of acts carried out for computer security purposes and, for software, the decompilation necessary for interoperability remains governed by its own provisions. The Court of Justice of the European Union holds that the protection covers only proportionate measures, where there are no other less restrictive means of achieving the same objective.

Interaction with the exceptions

Rightholders may use technological measures, but they must take appropriate steps to ensure that the effective benefit of the exceptions, in particular private copying, the exception in favour of disabled persons and the teaching exception, is not made impossible. The regulatory authority may be seised for that purpose and order the rightholder to allow the exercise of the exception. The Court of Cassation nevertheless holds that private copying is not an enforceable right allowing a user to demand the removal of a measure.

Key points

Effective technological measures enjoy protection of their own, and circumventing them or supplying means of circumvention is a criminal offence. They must neither hinder interoperability nor deprive users of the effective benefit of the exceptions. Before deploying or circumventing a measure, check its proportionality, the information given to the public and compliance with the provisions specific to software.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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