word image
Graduate thesis

Internet Service Provider­'s liabilit­y in the fight against copyrigh­t theft

14.909 Words / ~55 pages sternsternsternsternstern_0.75 Author Franziska O. in Jan. 2012
<
>
Download
Genre/category

Graduate thesis
Jurisprudence / Law

University, School

LSE London

Grade, Teacher, Year

2009, 70/100

Author / Copyright
Franziska O. ©
Metadata
Price 13.50
Format: pdf
Size: 0.73 Mb
Without copy protection
Rating
sternsternsternsternstern_0.75
ID# 12869







INTERNET SERVICE PROVIDER’S LIABILITY IN THE FIGHT AGAINST COPYRIGHT THEFT ON THE INTERNET:

DEVELOPMENTS IN FRANCE AND IN THE UNITED KINGDOM


Contents

INTRODUCTION:3

Part I: COPYRIGHT THEFT: GENERAL OVERVIEW . 5

1)Internet piracy: A Few Words. 5

2)The sorry state of cultural industries. 6

3)The music industry:7

a)The United Kingdom:8

b)France:10

4)The film industry:13

a)The United Kingdom:16

b)France:18

Part II) COMPARING DEVELOPMENTS IN FRANCE AND IN THE UNITED KINGDOM19

1)The European legal framework:19

a)The Directive on the enforcement of intellectual property rights:19

b)The E-Commerce Directive:20

c)The E-Privacy Directive:21

2)Developments in France:22

a)The need to change today’s legal framework:22

b)Chronological Developments:24

c)Hadopi, the independent government body:29

d)The mechanism of the graduated response:30

e)How can the identity of the pirate be found?. 31

f)The securitization of the line. 32

g)Filtering the contents:33

3)Developments in the United Kingdom33

a)Consultations of the Business Enterprise & Regulatory Reform and the Business Innovations and Skills department:34

b)Ofcom's Role. 35

c)Technical Measures. 35

d)Proof and Rights. 35

e)Effectiveness of these measures:36

4)The situation in other countries:36

a)The « graduated response » is mainly implemented without legal intervention, in a purely contractual form37

b)The « graduated response » without internet suspension is the most common way up to date.37

c)The « graduated response » with the cutting of the internet access is the most recent method.38

d)Countries who deal differently with the problem:39

Part III: PRACTICAL PROBLEMS OF THE SYSTEM . 42

1) One IP address, several potential internet users. 42

2)All ISPs must accept the system or it’s useless. 42

3)Methods other than peer-to-peer networks:42

4)Technical measures to avoid getting caught :44

Part IV: LEGAL OBJECTIONS. 46

1)Dispute resolution (due process of law)46

2)Fair dealing and fair use. 46

3)Presumption of guilt46

4)The amendment 46 (ex 138) of the Telecoms Package:47

5)Proportionality in the E-Privacy Directive:47

CONCLUSION49

BIBLIOGHAPHY51


INTERNET SERVICE PROVIDER’S LIABILITY IN THE FIGHT

AGAINST COPYRIGHT THEFT ON THE INTERNET:

DEVELOPMENTS IN FRANCE AND IN THE UNITED KINGDOM



INTRODUCTION:



Piracy is one of the biggest threats confronting the entertainment industry today. Every year, the industry is estimated to lose billions of dollars in revenue and faces the potential loss of hundreds of thousands of jobs. To protect itself against Internet pirates, the entertainment industry has launched the latest copyright war… Today, copyright law is no longer a complicated issue that is only of interest and concern to copyright lawyers, legal scholars, technology developers, and intellectual property rights holders.

Rather, it is a matter of public significance, affecting all of us in our daily lives. The ground has shifted. If the entertainment industry does not pay attention to the public and if it continues to use ill-advised battle strategies, it eventually might lose the war.[1]


Here we are in the opening of a paper in Copyright and Related Rights Law regarding Internet Service Provider’s liability in the fight against copyright theft. Fascinating is the only word I believe can do justice with all the wonders and qualities that this field conceals in it. It seems like there is no other space in copyrights that conceals so many dilemmas, disagreements, clashes and contradictions.

It is not for nothing that many different institutions, national, international, governmental and non-governmental, researchers, scholars and professionals all around the world, work for many years and cannot build one accepted harmonious system of rights, rules and statues in the major issue in the Intellectual Property field.


There is a moral and economical rationale which lies on the grounds of the fight against internet piracy.

The economical rationale derives from the belief that Copyright law’s main legal doctrine “must, at least approximately, maximize the benefits from creating additional works minus both the losses from limiting access and the costs of administering copyright protection.”[2].


Since Copyright Law’s purpose is to encourage creation, it must not only provide incentives and protection to the copyright owner (of the original work). It must also make the access to the original works available to the entire public so that it benefits to Culture. It should provide incentives to creation of more and more works (some of which would be derivative works).


The fundamental issue of Copyright Law is the striking of a good balance between access to works and incentives to create[3]. This directly affects the question of digital piracy. Today, Internet is part of our daily lives, present in every household, accessible to all. Music and films are downloadable for free and peer-to-peer networks develop increasingly, offering a never-ending catalogue of content.

Internet users have become used to downloading for free, to the detriment of copyright holders. Downloading does not amount to stealing in the mind of regular internet users, so habits have unfortunately become established. Governments in different countries have realized that something had to be done, to get to public awareness that the entertainment and cultural industries are gradually dying and that right holders are losing their incentives to create, thus destroying our Culture.

Since the media of downloading is the Internet access, one of the methods of fighting copyright theft is through internet service providers. These have access to the activity of their subscribers who would dread to see their access cut. So they have power to find pirates as well as to punish them. In different countries, governments have used ISPs in the fight against copyright theft.

France has launched an interesting project called “HADOPI”, and the United Kingdom is thinking of using ISPs to threaten internet users. Interesting developments in this area have recently taken place in both countries. This paper deals mainly with France and English developments in ISP’s liabilities in the fight against copyright theft. This is a a matter of contention with strong lobbies of conflicting interests from cultural industries, communication industries, consumers and governments; this is what makes this topic so interesting and topical.


PART I: COPYRIGHT THEFT: GENERAL OVERVIEW



It took a long time for the film and the music industries to realize the revolution that the internet was triggering. Today, digital films and music are part of their industries’ revenues, but they got behind in developing legal offers and this strategic delay is costing them a lot, in terms of revenue and of jobs.

In the old days, one could spend hours examining the shelves of traditional record stores to find a rare vintage recording, and willing to pay an expensive price for the joy of being able to play it at home. Today, the consumer knows he is only a few clicks away from almost any recording, and he can even have it for free! The economy is suffering from the fact that the consumer hasn’t been educated from the beginning about the fact that illegal file sharing amounts to actual theft.


Habits have changed. There is now a download market where iTunes or Amazon are important names. A revolution triggered by portable digital music devices radically changed our way of listening to music. The old hi-fi system or even the DVD player has now been replaced by a computer or an iPod; even mobile phones act as music players! Worldwide, digital sales are split between online and mobile sales.

New devices, new platforms, and new business models: we are the living witnesses of a revolution.

Download Internet Service Provider­'s liabilit­y in the fight against copyrigh­t theft
• Click on download for the complete and text
• This is a sharing plattform for papers
Upload your paper and receive this one for free
• Or you can buy simply this text


The music and film industries try to catch up on the delay they took by developing legal offers, but they face an important challenge: developing lucrative offers while internet piracy is continually increasing. Indeed, copyright theft is now the most important barrier to the development of legal digital downloads.


1)     Internet piracy: A Few Words


Internet piracy is not only peer-to-peer networks. New technologies enable new forms of file sharing such as chats like MSN Messenger, local network sharing or even blogs where people give access to tracks or web addresses. One can also send tracks with a Bluetooth technology on a mobile or send it by e-mail.

However, in terms of volume, P2P networks are still the major actors enabling copyright theft. Among the types of files shared, one can find music, films, eBooks, softwares, games . Many types of businesses are affected and have an interest in stopping the process before it is too late . (Or is it already?)


Why is it always said that P2P file-sharing networks allow copyright infringement via the swapping of illegal files? The answer to that question is simple: it is due to the very mechanism of these networks. A person wishing to download files on a computer can only do so by making available all the files on their computer.

In other words, the more users, the more important the repertoire of files is and the more accessible illegal files are. It is the user who provides the resources, i.e. the bandwidth, the computer power and the storage space. In theory, P2P networks have a very interesting business model. For example, BitTorrent, one of the most famous protocols, describes itself on Google as a “Free, open source file-sharing application effective for distributing very large software and media files”[4].

In practice, it condones the construction of an endless database for illegal file sharing.


Because unauthorized and unpaid-for copyrighted works are massively available throughout peer-to-peer networks, one question remains unanswered: why would one pay for what he can get for free with the same amount of effort? This is the problematic that these industries have been fighting. How much have they suffered yet? Important lobbies with conflicting interests prevent from reaching a uniform satisfactory solution.


France and Great Britain are among the largest content industries in the world. Of course, this is a strength for their cultural exposure. These countries also benefit from high-speed internet access, a significant advantage for their economies. These strengths should not mitigate each other but they should help each other out, in the interest of consumers who will benefit from powerful broadband and rich and diversified works. However today:

“powerful broadband” + “rich and diversified works”= internet piracy

2)     The sorry state of cultural industries


The democratization movement of using electronic media other than the CD or DVD has kept increasing over the last decade. Anyone can now download music or movies for free. It has become a mass behaviour corresponding to a large decline of traditional physical media. Today there are numerous MP3 players and numerous websites on which downloading is free and illegal.


According to the GFK institute, MP3 players’ market represented in 2006 in France around 6 million sales (+23% compared to 2005). By the end of 2006, 28% of French households owed a MP3 player, 10% of which had a player compatible with DRMs of legal platforms of downloading.


Downloading is a widespread practice: according to a study of Idate and Médiamétrie NetRatings[5], more than one internet user out of two has downloaded at least one file in the last three months (either legal or illegal), 59% of whom declare downloading mostly music. This practice is highly linked to the high penetration of high-speed internet access in households.

Most internet users who have recently downloaded files are indeed equipped with this technology. Furthermore, peer to peer networks keep developing. Idate’s study finds that 30% of internet users have used at least one P2P network in the last three months.


Data storage devices of electronic equipments improved significantly. They can reach hundreds of Giga octets and even Tera octets! No wonder why people stop burning CDs or DVDs. Consumers agree to pay more for storage devices but not for the content itself!


3)     The music industry:


The record industry is said to be the one which is suffering the most from illegal file sharing because it represents the biggest area of P2P activity. In 2007, digital sales worldwide generated revenues of approximately $2.9 billion for record companies. This figure increased by almost 34%. This number increased by 40% between 2006 and 2007. The share of digital sales in the whole music market increased by 15% in 2007 while it had increased of only 2% between 2004 and 2005.

[6]


A non-expert eye would see in these figures a positive trend for the record industry. However, there was a sharp decline for “physical sales” and digital sales’ increase hasn’t been able to compensate it.


The IFPI study shows that worldwide, ten billions of music files are illegally traded every year. It was calculated that there is a ratio of 20 illegal downloads for every digital track sold legally. Inevitably, that figure prevents the natural development of legal services and the growth of the legal market in the digital sector. There are more than 500 licensed, legal online music sites online making available more than 6 million tracks but their success is highly impaired by illegal sites and by the fact that they appeared on the market too late so that internet users were already used to downloading for free.


a)      The United Kingdom:


Legal digital sales:


In the United Kingdom, the number of tracks purchased online increased by 47% between 2006 and 2007, amounting to 77.6 million tracks. Each week, more than 200 000 titles are sold. The mobile music market is the most advanced one in the whole of Europe with a penetration of music phones of 43%. The UK has the highest percentage of consumers who use their phones to play music[7].



The BPI commissioned studies to be conducted by Jupiter. There were 6.5 million people who engaged in digital music “piracy” in the UK in 2007. The area of research was not restricted to peer to peer activity. This figure is even more worrying as a percentage: 25% of internet users in the UK are infringing copyrights.

It has been estimated that piracy will cost more than £1billion to the music industry if we add up the losses of the next five years.


Another survey realized by the British Music Rights about the way music is used by people below 34 years old showed incredible results. 63% of the participants admitted to have downloaded on illegal peer to peer networks, with an average number of 53 tracks per month (however, a few admitted they could reach up to 5,000 tracks downloaded every month!)[8].


In a separate survey conducted by Entertainment Media Research[9], 18% of the respondents indicated they thought they would be more likely to download in 2008 than the previous year. Among these, 91% explained their illegal activities because “it was free” while 42% of them claimed it was because any possible track is available online. The attraction for music file-sharing appears straightforward.


In 2007, revenues for the record industry fell by 13% to £1.02 billion. Digital sales’ growth was far less important than the 16% fall of CD sales turnover of £871 million. Doing the maths leads to a £166 million loss and a £152.4 million net decline in revenue[10].

It should be said at this point that it is difficult to find recent and harmonized figures on this matter. Depending on who commissioned the survey, the numbers can vary and the figures picked here are that who appeared to be average.


The most recent study was published in The Digital Britain Report[11]by the UK Government on June 16, 2009. It cites a loss of 213 Million Euros for the music industry alone and 180 Million Euros for the film industry. In the USA, annual losses reach 9.6 Billion Euros for the music industry and the destruction of 29.000 jobs.


b)     France:


More than one French internet user out of two has access to high speed internet. This is an unprecedented opportunity for the diffusion of culture since the invention of printing! In such a context, the issue is to stop piracy to preserve and develop cultural industries supposedly protected by copyright and related rights.


Most international studies show that France is one of the countries the most affected by illegal file sharing. A simple explanation to this is that most offers in France do not limit the debit of bandwidth, unlike in many other countries and the high penetration rate of ADSL. Therefore, according to the Equancystudy of November 2008[12], French internet users devote 512 minutes per month to file sharing (legal and illegal), while it is 301 in Germany, 264 in the US and 227 in Great Britain.

There are two types of consequences, some in the short term, and some in the long run.


Legal digital sales:


Internet piracy affects and slows down the development of legal numeric offers, thus preventing the emergence of new business models. France has an exceptionally low rate of digital sales, which accounted in 2008 for 10% if the music industry’s turnover, whereas it is 30% in the United States and 20% in Great Britain.

It is all the more surprising since legal offers are as advantageous in France as in other countries, both regarding the cost for the consumers and the number of files offered. This is what President Sarkozy considers as “the French exception” characterized both by extremely high figures on internet piracy and extremely low figures on the success of legal ways to distribute copyrighted works online.

For example, figures on the development of legal sales in the French and the German market were the same in 2002 while there is today a 44% difference to the detriment of France.


This is why President Sarkozy emphasized a lot on the urgent need to develop legal offers that would be a substitute to piracy so that creators and workers remain able to benefit from their creations and investments.


In 2007, digital revenues of phonographic producers accounted for €50.8 Millions while it represented 43.5 Millions in 2006 (so there has been an increase of 16.6%). Mobile phones revenues went from €25.4 Millions in 2006 to €28.6 Millions in 2007. The number of tracks legally downloaded more than doubled in the last two years (36.3 million tracks legally downloaded in 2007).

However, digital sales account for only 7% of the music market in 2007.


The important number of illegal files shared are said to be responsible for the initial weakness of digital sales. These figures might have triggered the urging developments that President Sarkozy has started. As we will see, he has officially declared war to illegal file sharers by trying to pass a law making ISPs active players in the fight against illegal file swapping.



The record industry’s sales turnover in France has decreased by 45% since 2002. The market lost more than €600.000, reaching only €713 millions. The workforce of phonographic labels was divided by two in the last 5 years.


The market for digital music is 6 times more important than it was three years ago but it only represents 7% of music sales in 2007. Among the revenues, 41.3% come from online downloading and 58.7% come from mobile phones.


The growth of music sales doesn’t compensate the decline in the turnover of physical sales. French producers have signed with one hundred new talents in 2007 but this figure is 44% less important than it was in 2002. Also, 300 albums from French artists were put on the market that same year and this figure is 42% less important than in 2002. These numbers do not take into account independent labels.

Since 2006, the French songs suffers more than international ones.


The CD market dropped of more than 50% in France in the last five years both in volume and in value. There was therefore a significant decrease of employment in this industry (around 30%) and of new artists signing CDs (-40%). The turnover in the film industry decreased of 35% over the same time period.


Globally, piracy’s effect for 2007 is of 1.2 billion Euros according to Equancy’s study and 5000 lost jobs and 200 million Euros per year for public finance


Legal offers of music and film has now caught up its delay so there is no reason to tolerate piracy anymore:


The « Observatoire de la musique » (Observatory of music)[13]declared in January 2009 that legal numeric offers of music, whether for free or not, is extraordinarily diversified. In 2004, legal offers for music represented 300.000 tracks. Today, internet service providers offer millions of tracks for the unlimited and perpetual right to download for 12 Euros a month.

Some streaming websites (allowing to read a file without downloading it) offer for free more than five million tracks. Those make money thanks to advertising.


New competitors enter the market of downloading platforms each month, such as AmazonMP3 France (5 million of tracks) or BeeZik (2 million of tracks). Legal numeric offers are richer today than physical offers of music ever was ! The Virgin store (the main record dealer in France) on the Champs-Elysées in Paris « only » offers a few hundreds of millions of references.

Furthermore, numeric offers are usually cheaper than CDs, and costs tend to keep decreasing. An important step in the improvement of legal offers’ appeal will be the suppression of blocking DRMs to come soon.


4)     The film industry:


For films, a comparative study of « l’Observatoire Européen de l’Audiovisuel » in January 2009 listed 258 services of video on demand (VOD), while it listed 142 in 2006 in Europe. France is the European country with the widest offer (more than 50 services in summer 2009), followed by the Netherlands (30 services) and Germany (26 services).

These offers come either from internet service providers, or from TV channels (Canal +) or platforms of film companies such as VOD MK2, Fnac, Virgin, etc. To give an example, the two widest offers are those of Canal+ and of Orange with respectively 2000 and 1000 tracks available for VOD. More than 4000 films are on the French market and this figure increased by 30% in 2007 and 50% in 2008. The cost of these services is also dropping.


The UK entertainment market was the third largest in the world in 2007, after the USA (which accounted for 41% of the world market) and Japan. After the UK come Canada, France, Germany and Australia.


Filmed entertainment revenues by country/region, US$ million, 2007[14]:

Country/region

Revenue in US$ million

Percentage of total

USA

35,517

41.3

Japan

7,839

9.1

UK

6,447

7.5

Canada

5,908

6.9

Other Western Europe

5,604

6.5

France

3,823

4.5

Germany

3,220

3.7

Other Asia Pacific

2,793

3.3

Latin America

2,303

2.7

Italy

2,107

2.5

Australia

2,110

2.5

India

1,929

2.2

South Korea

1,769

2.1

Central and Eastern Europe

1,782

2.1

Spain

1,689

2.0

China

641

0.7

Middle East and Africa

423

0.5

Total

85,904

100.0

Filmed entertainment revenues by country/region, US$ million, forecast for 2012[15]:

Country/region

Revenue in US$ million (2012)

Percentage of total (2012)

USA

44,528

40.0

Japan

10,341

9.3

UK

7,893

7.1

Canada

7,499

6.7

Other Western Europe

6,578

5.9

France

4,442

4.0

India

4,278

3.8

Germany

4,079

3.7

Other Asia Pacific

3,490

3.1

Latin America

3,182

2.9

Central and Eastern Europe

3,113

2.8

South Korea

2,632

2.4

Australia

2,708

2.4

Italy

2,586

2.3

Spain

1,746

1.6

China

1,531

1.4

Middle East and Africa

575

0.5

Total

111,199

100.0

a)      The United Kingdom:


The UK broadband market grows very quickly. There were only 3 million broadband subscribers in the UK in 2003 while there were more than 12 million in 2008. The UK has the largest number of owners of internet lines in Europe[16].


It is very difficult to find very recent statistics about piracy in the film industry. The latest studies are almost always from 2007.


The next figure shows broadband penetration and pirates behaviour.[17]


There are three ways of stealing movies:

·        Physical theft is the buying of counterfeited DVD or a home copy.

·        Secondary piracy' is the fact to watch or borrow an existing illegal copy which other people realized. It accounts for £209 million. It is the largest source of industry loss.

·        Digital piracy is the second most important source of loss assessed at £108 million in 2007.  UK downloaders are mainly male 64%, of them come from the 15-34 age bracket.

Origin of losses due to film theft

The IPSOS organization calculated that the film industry lost £404 million in 2007 because of film theft.

Loss due to…[18]

Estimated losses to film industry (£ million)

Physical theft

87

Digital theft

108

Secondary theft

209

Total losses to film industry

404

It is estimated that in 2006, the whole audio visual sector lost £459 million due to copyright infringements. This is due to a decline of the amount of people who buy cinema tickets of 13.4% and of DVD sales of 15%. Between 2005 and 2006, the proportion of people downloading and burning films increased by 26%.


b)     France:


Between November 2007 and June 2008, ALPA[19] has monitored internet traffic from France on the most important peer-to-peer networks. During this time, 450.000 films were downloaded every day from France.[20]




PART II) COMPARING DEVELOPMENTS IN FRANCE AND IN THE UNITED KINGDOM


1)     The European legal framework:


Following the adoption of the 2001 Copyright Directive[21], the European institutions have adopted another Directive[22] to enforce intellectual property rights in 2004. The European Commission’s[23] wish was to include criminal sanctions; but this was rejected by the European Parliament and the text of the Directive was further amended to limit its scope to infringements committed on a commercial scale.


a)      The Directive on the enforcement of intellectual property rights:


Article 8 of the 2004 Directive[24] provides for a right of information in the context of proceedings relating to intellectual property rights infringements, allowing a claimant to request a competent Court to order anyone, in particular, internet service providers to reveal the address and identity of persons who are strongly suspected to distribute illegal goods or services, or involved in its distribution process.

Such request must be justified and proportionate.



In this area, European and US case law differ.The United States Supreme Court developed what has come to be known as the “inducement theory” in the case MGM v. Grokster[25] in the following statement:

“[…] one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster the infringement, is liable for resulting acts of infringements by third parties”

No such inducement theory has been applied by the Courts in Europe. Therefore, to the contrary, the distributors of P2P file sharing software in Europe can never be held vicariously liable for copyright infringements committed directly by users. Moreover, the Directive doesn’t make users incur a risk of criminal liability for any such infringement.


b)     The E-Commerce Directive[26]:


By ensuring free movement of “information society services, its purpose is to contribute to a proper functioning of the internal market. “Information society services” are commercial services provided on the Internet. More precisely, it is "any service normally provided for remuneration, at a distance, by means of electronic equipment for processing (including for digital compression) and storage of data, and at the individual request of a recipient of a service”[27].


Among the mixture of requirements affecting the regulation of these services by Member States, articles 12 to 15 are of relevant interest for our purpose. In articles 12 to 14, Member States must ensure that the liability of intermediary providers is limited in some circumstances. ISPs are not liable for the illegal activity engaged in by their users unless it is shown that they had actual knowledge of them (E Commerce Directive, Art 14). However, nothing in those articles seems to prevent a Court or administrative authority from requiring a mere conduit, cache or host to terminate or prevent an infringement[28].


Therefore, the imposition of injunctions or certain graduated response regimes on these service providers seem authorized (provided to comply with the other requirements of the Directive).


Article 15 states that there shall not be a general obligation to monitor information imposed on intermediary providers but there is an imposition of certain other, more limited and specific, obligations[29].



Under the Directive, Member States must ensure that personal data is:

• Processed fairly and lawfully;

• Collected and processed only for specified, legitimate purposes;

• Collected only if it is adequate, relevant and not excessive in relation to the purposes for which it is collected;

• Accurate and kept up-to-date where necessary; and

• Kept in a form that permits the identification of individuals for no longer than necessary in view of the purposes of processing.


Under the Directive, the communication of personal data to third parties is also limited. The processing of traffic and billing data is authorized in a limited number of cases among which persons acting under the authority of fraud detection. At the moment, right holders can take action against alleged copyright infringers via ISPs in Courts in order to obtain the personal details of offenders.

Once they have the necessary information, they can then take civil action against the individual and prove the infringement. This process is time consuming and expensive.


“This is the single most important initiative to help win the war on online piracy that we have seen so far.

By requiring ISPs to play a role in the fight against piracy, President Sarkozy has set an example to others of how to ensure that the creative industries remain strong in difficultmarkets so that they can remain major economic andcultural contributors to society.”[31]

Indeed, France has become a center of attention since Sarkozy has actively decided to legislate on the matter of online piracy, involving ISP’s intervention. The most cynical ones point at his wife Carla Bruni-Sarkozy as the instigator of this war: this popular model and singer recorded her second album last summer.

Here is therefore a presentation of the « Hadopi » project (High Authority for the broadcasting of works and the protection of rights on the internet), also called “Création et Internet” which constitutes the main development in France on this matter so far.


a)      The need to change today’s legal framework:


Copyright law aims at favouring intellectual creation while protecting the author with a monopole over the exploitation of his work, no matter what the media of diffusion is. The only requirement for copyright protection is that of originality. This standard varies from countries to countries.

The French provisions are those of article L. 335-2[33], L. 335-3[34] and L.335-4[35] of the Intellectual Property Code.

Criminal sanctions apply to the person who offers to download online films recorded via a video camera in the cinema as well as to the internet user who forwards a file by email even if it was downloaded legally. Strictly speaking, they apply both to the person who makes the file available online and to the person who connects on the website to download it.

To find infringement, there should be in principle an intention to wrong the right owner. However, French jurisprudence invented a “presumption of the materiality of the act” which means that the downloading of the file allows a judge to conclude that the pirate doesn’t have good faith.


These harsh sanctions are well-adapted to mass downloading by a limited number of people. These seem however ill-adapted to regular downloading by millions of people of a few music or film files. This inappropriateness led to the result that only a few legal actions were instigated. The number of convictions is extremely low compared to the amount of infractions.


Right holders have to sue each and every individual on the grounds of counterfeiting so the main critic is its lack of efficiency. Indeed there are only a limited number of cases which can lead to legal proceedings compared to the important number of people involved in copyright infringement.


b)     Chronological Developments:

On November 23, 2007, members of the music and film industry as well as internet service providers signed the “Accords de l’Elysées) based on the Olivennes report recommending the « graduated response » to internet piracy: two emails of warning and a cutting of the internet line in case of continued offense.

In this project, the warnings and the cutting was to come from the Hadopi (Haute autorité de diffusion des oeuvres et protection des droits sur internet), an independent authority which would be created for that purpose.

President Sarkozy decided to launch the war against internet piracy by sending a letter to the (then) Minister for Culture and Communication Christine Albanel on August 1, 2007, assigning her a mission to implement a system of « protection and promotion of cultural industries covered by copyright and related rights ».

References & Links

Swap your papers