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20 November 2008
Although the controversey surrounding the Bill Seeking to Protect Creative Works from Internet Piracy suggested a lengthy debate, the Senate passed the bill on its first reading after only two days of discussion.
Almost all senators voted for the bill, with only the group of Communist senators abstaining.
The aims of the bill are to stop internet piracy which can cause harm to cultural works and to create a legal framework conducive to the development of lawful distribution channels for creative works online.
The bill implements a so-called ‘graduated response’ mechanism. According to Minister for Culture Albanel, the bill seeks to respond to unlawful downloads by taking an “instructive and dissuasive” approach, replacing straightforward legal actions for breach of copyright - the penalties for which (ie, a fine of €300,000 and three years’ imprisonment) may seem disproportionate - with a procedure whereby warnings are issued and penalties are imposed progressively.
The senators also approved a mechanism by which internet subscriptions may be suspended as an ultimate penalty and rejected the alternative of imposing automatic fines.
This procedure will be placed under the responsibility of an independent administrative body, the Haute Autorité pour la Diffusion des Oeuvres et le Protection des droits sur Internet (the High Authority for the Dissemination of Works and the Protection of Rights on the Internet (HADOPI)), which will replace the Autorité de Régulation de Mesures Techniques (the Authority for the Regulation of Technical Measures).
A special committee within HADOPI will be responsible for implementing measures to prevent and penalize the online piracy referred to by the law.
An internet user who is identified by any authorized body (eg, a collecting society, a professional body or the Centre National de la Cinématographie) and whose address is provided by the internet service provider (ISP) will be sent an email reminding him or her of the provisions of the law and “asking him [or her] to comply with this obligation by warning him [or her] of the penalties that will be imposed should he [or she] breach such obligation again”.
If the email has no effect, the committee shall send to the internet user a second email setting out recommendations and a recorded delivery letter.
If these measures fail to dissuade the internet user from unlawful downloads then: (i) internet access may be suspended for a period of three months and the user will be prohibited from subscribing with another ISP during that period; and (ii) a legal injunction will be sought to allow measures preventing a repeat of the identified breach and a report will be provided to HADOPI. This measure is intended in particular to give an opportunity for enterprises to put filtering procedures in place.
These measures can be the subject matter of an agreement between the internet user and HADOPI, which may reduce the period of suspension.
In the event of suspension of access, notification of the decision will be sent to the ISP and will be recorded in a register in order to ensure its effectiveness, preventing the user from taking out a new subscription elsewhere.
The senators were convinced that this mechanism complied with the amendment introduced by Guy Bono and approved by the European Parliament in September 2008. However, they pointed out that the suspension of access should not affect access to telephone and television services available via asymmetric digital subscriber line. They also adopted an amendment making it possible to maintain access to email accounts, insofar as this is technically possible.
Finally, the senators strengthened the incentive aspect of the law by stipulating that, in the absence of any inter-sector agreements, the minister for culture could determine by decree the periods during which films are to be made available through video on demand services, as well as the conditions under which musical works are to be made available without any technical protection measures.
As the government has declared that this bill is to be dealt as a matter of urgency, it should pass after a single reading in the National Assembly.
The support of the Socialist Party for the amended bill, in accordance with the Olivennes agreements, suggests that it could become law as early as the new year. However, it is likely that Socialist deputies will wish to amend the bill further.
Once adopted, its effectiveness will depend on the number of warning emails that HADOPI can administer, as well as the reliability of data available to ISPs.
This mechanism is based on an analysis of foreign experiences, which have shown that 90% of internet users ceased unlawful activities after two warning emails. The threat of account suspension should ensure the increased effectiveness of this deterrent mechanism.
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