French Intellectual Property Code
In forceAny software publisher, any technical system manufacturer and any service operator may, in the event of refusal of access to information essential to interoperability, ask the Audiovisual and Digital Communications Regulatory Authority to guarantee the interoperability of existing systems and services, while respecting the rights of the parties, and to obtain from the holder of the rights to the technical measure the information essential to such interoperability. From the date of referral, the authority has four months to issue its decision.
Information essential to interoperability means the technical documentation and programming interfaces necessary to enable a technical device to access, including in an open standard within the meaning of Article 4 of Law No. 2004-575 of 21 June 2004 for confidence in the digital economy, a work or object protected by a technological measure and information in electronic form attached thereto, in compliance with the conditions of use of the protected work or object that were originally defined.
The holder of the rights to the technological measure may only require the beneficiary to refrain from publishing the source code and technical documentation of its independent and interoperating software if it can prove that this would have the effect of seriously undermining the security and effectiveness of the technological measure.
The authority may accept commitments proposed by the parties and likely to put an end to practices contrary to interoperability. In the absence of an agreement between the parties and after having given the interested parties the opportunity to present their observations, it shall issue a reasoned decision rejecting the application or issue an injunction prescribing, if necessary under a penalty payment, the conditions under which the applicant may obtain access to information essential to interoperability and the commitments it must comply with in order to guarantee the effectiveness and integrity of the technological measure, as well as the conditions of access to and use of the protected content. The penalty imposed by the authority is liquidated by the authority.
The authority has the power to impose a financial penalty applicable either in the event of failure to comply with its injunctions, or in the event of failure to comply with the commitments it has accepted. Each financial penalty is proportionate to the extent of the damage caused to the parties concerned, to the situation of the organisation or undertaking penalised and to the possible repetition of practices contrary to interoperability. The penalty is determined on an individual basis, with reasons given. Its maximum amount is 5% of the highest worldwide turnover excluding tax achieved during one of the financial years closed since the financial year preceding that in which the practices contrary to interoperability were implemented in the case of a company and 1.5 million euros in other cases.
The authority's decisions are made public in compliance with the secrets protected by law. They are notified to the parties, who may lodge an appeal with the Paris Court of Appeal. Appeals have suspensive effect.
The chairman of the authority refers to the Competition Authority abuses of a dominant position and practices hindering the free exercise of competition of which he may become aware in the technical measures sector. This referral may be made under an emergency procedure, in accordance with the conditions set out in Article L. 464-1 of the French Commercial Code. The Chairman of the Authority may also refer any other matter within its remit to it for an opinion. The Autorité de la concurrence shall forward to the Autorité de régulation de la communication audiovisuelle et numérique any referral falling within the remit of the latter authority. It shall obtain its opinion on practices referred to it in the sector of technical measures referred to in Article L. 331-5 of this Code.
