International report - France shifts away from three-strikes internet ban policy 16 Oct 13
Baker & McKenzie - France
In July 2013 the French government decided to abandon the anti-piracy policy that threatened persistent offenders with internet disconnection.
In June 2009 France passed a much-debated anti-piracy law, which established a three-strikes system known as the 'graduated response' to punish persistent offenders who illegally downloaded, consulted or distributed works online.
The Haute Autorité pour la Diffusion des Œuvres et la Protection des droits sur Internet (HADOPI) Law, named after the government agency which was to police the new regime, was highly controversial, especially after the Constitutional Court struck down the initial version of the law. However, this obstacle was finally overcome and France became one of the first countries in Europe to introduce this system, which was held up as an example by entertainment companies looking to spread the model worldwide.
The HADOPI Law targets not infringers, but rather the holders of internet accounts which have been used to share copyright protected material illegally. The purpose of the system is to require internet subscribers to secure their internet access and to prevent use of that access to download or share files illegally.
Under the three-strikes policy, the holder of an internet account which has been used for illegal file sharing is warned to secure that account. If new infringement occurs through the same internet account within six months of the initial notification, a warning letter is sent to the holder by registered post. If the holder ignores these two strikes, he or she could be fined and the internet connection cut off for between one month and one year (and he or she will be unable to enter a contract with another internet service provider during that time). If a new infringement takes place within one year of receipt of the second notification, HADOPI sends a third letter informing the internet subscriber that the facts make him or her liable to prosecution. HADOPI can then refer the case to the prosecutor, which can prosecute the subscriber. A criminal court may then fine the subscriber and suspend his or her internet access for between one month and one year.
Despite the major costs of implementing this system and establishing HADOPI, the system's efficiency was questioned. Until 2012, the annual cost of HADOPI was more than €12 million a year, and €32 million were spent since its launch in 2010. Over 1.6 million first warnings were sent out between October 2010 and February 2013, but only 29 cases were referred to the prosecutor. Of these, the courts order only one suspension of internet access, for 15 days, which was subsequently cancelled. In addition, while illicit file sharing on peer-to-peer networks was successfully reduced, the use of alternative services such as illegal streaming skyrocketed over the same period.
As a result, a number of proposals have been put forward to end this expensive process, including suppression of the entire three-strikes system and HADOPI itself. However, the government has not yet taken such drastic steps. Instead, the decree of 8th July 2013 (available in French here) repealed only the internet disconnection penalty. The three-strikes system remains in full force and file sharers still risk a fine up to €1,500. However, this abrogation is the first of wider changes to be announced over the coming months. At present, the remainder of the system continues to apply and HADOPI still exists.
Removal of the disconnection penalty is a step towards a change in approach for the anti-piracy struggle. As recommended in a May 2013 report, the government appears to be shifting its focus towards entities which profit from the illegal sharing of copyrighted works, rather than end users. In addition, the government is considering abolishing HADOPI and transferring all of its tasks and prerogatives to the Conseil Supérieur de l'Audiovisuel (CSA), the media regulation agency. One of the proposed alternatives would be to replace the three-strikes system with automatic fines similar to traffic fines, which would be issued by the CSA rather than the courts. Such changes should take place in early 2014 as part of a wider law on creation and culture.
This change also heralds a shift in the way that online copyright infringement is targeted in France and Europe. The move away from three-strikes systems seems to follow a wider trend in Europe, as illustrated by the fact that the UK three-strikes system (part of the Digital Economy Act 2010) still has not been implemented. Proposals to send warning letters to UK internet users who commit piracy offences have reportedly been delayed until late 2015.
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