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Wednesday, 10 July 2013

HADOPI to disappear and the French graduated response system to be partially dropped.


Following a long awaited decision, the implementing decree revising the French graduated response to online piracy (not streaming, just peer-to-peer) has been issued on July 8th. For French readers, the (short) decree n° 2013-596 can be (legally) downloaded here

The complementary penalty consisting of a disconnection of the internet connection has been abolished. However, as FrenchKat from the 1709 blog states:
"It should however be pointed out that this decree does not appear to affect the court's power to order internet suspension (for up to one year) as a complementary penalty for those who are actually guilty of copyright infringement."
In fact this sanction should remain available to the judge if the decision is based on the "traditional" Article L 335-7 of the French IP code, created by law, which therefore could not be modified by a decree. This possibility however remains highly hypothetical.
No disconnection for you, Kat!


The three steps measure is therefore still alive but the maximum sanction for piracy is now a 1,500 euro fine, which as yet never been pronounced by a court.

The IPKat has been discussing this particular measure a lot, not only for France, and not always with kind words (see for instance here and here). It seems the final sanction consisting of a double penalty (a penalty fee and a temporary disconnection from the internet) was disproportionate and might be a threat to fundamental rights.

Aurelie Filippetti, French minister of culture and communication argued yesterday that this measure was out of proportion, constituted a threat for freedom of communication and that access to internet should not be barred to any citizen based on such grounds. She added that this measure will not be replaced by any other and that the actual system was sufficient to fight against online piracy. Finally, she stated that the fight against domestic piracy had to be reoriented towards commercial websites making huge amount of money. A press release from the minister can be found here.

In consequence, the authority Hadopi (stands for “Haute Autorité pour la diffusion des œuvres et la protection des droits sur internet”) will soon disappear and all its powers will be transferred to an old French regulation authority, the Conseil Supérieur de l’Audiovisuel (CSA).

This decision arises in times of uncertainty for the whole graduated response system since a report from Pierre Lescure (former president of TV channel Canal+) was released last month. This document ordered by French Government contained 80 propositions made to preserve the “French cultural exception”, including said transfers from Hadopi to CSA, the creation of a new tax on smartphones and the harmonization of Value Added Tax on physical and intangible cultural products. The report also aims at a more reduced timing for movie exploitation (windowing).

Comments about this report by the 1709 Blog and the original text (part 1 & 2) are both available online.

One could argue that this change is only an “effet d’annonce”, since the controversial sanction was pronounced only once.  As far as this Kat knows, only one French citizen, who did not pay attention to any of the three warning letters and did not show up for this trial before the Tribunal d’instance de Seine-Saint-Denis was sentenced to a 600 Euros fine and a 15-day disconnection.

To summarize: Hadopi has been working for two and a half years and so far, while 4.7 million IP addresses have been detected by rightholders between October 2010 and February 2013, only 29 files have been sent to the French prosecutors' office, leading to… three decisions. However this Kat remembers that, during a conference held at King’s College London two years ago, a lobbyist from an important US movie company was considering the Hadopi to be “the best system so far to fight against piracy”. 


Let's look on the bright side of life: everything is not to blame with Hadopi, as it appears that, somehow, the law did some good for legal downloading, as stated in this official document. Too many, it appears that the regulation as to be reoriented rather than totally changed in order to blame real pirates.

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