The French government's revision of its protectionist anti-downloading law gives users the right to a judgement but increases the level of surveillance. Will it yet again find itself at loggerheads with EU law?

 

The French government, desparate to please the creative industries is rushing through a new version of its Creation and Internet law to penalise Internet file-sharing and downloading of copyrighted content .  The re-draft, nicknamed Hadopi 2, retains much of the 3-strikes concept, but  it has been forced to make alterations in light of  the Conseil Constitutionel decision which declared certain elements of the law to be in breach of fundamental rights. On the other hand, it seems to extend the scope to cover not just peer-to-peer file-sharing but files transmitted over any type of electronic communications network. 

If I understand it correctly, the re-work alters the basis of the law  from

contract law back to copyright law. It specifies the penalties  which may be applied for copyright infringement and deals with the criticism of the law, that a judge and not a public authority - the Hadopi - should be able to impose such penalites.

 

The Hadopi, it seems, will still be set up, but will act as intermediary  between the  rights-holders, the ISPs and the courts. The main penalty will now be a fine of 1500 Euro.  However there is also a "peine complémentaire " of suspension of Internet access for up to a year, where the user has to maintain the subscription payments even though they get no benefit from the service. The literal translation of ‘peine complementaire' is ‘complementary punishment'.

 

However, questions are being raised in the French media about two of the articles in the re-draft. Article 3 implies that the sanctions may be applied to an infringement carried out on any electronic communications service, and thus could refer to emailed files, bulletin boards, Twitter, Facebook, Skype, MSN and the list goes on. It will not be limited to peer-to-peer file-sharing which was the original target (although it was always my interpretation that the Creation and Internet law could be more widely applied nd would certainly have applied to so-called user-generated content sites).  The concern is that now the door is wedged open for  widespread surveillance of all Internet  communications , with consequent implications for privacy.

 

Article 3 bis (nouveau) reintroduces the obligation to control ( the concept on which the Creation and Internet law was originally based), albeit  in a slightly different form. It contains the notion of ‘négligence caractérisée '  ( my best translation is ‘marked' or ‘distinctive' negligence). It seems to mean that the subscribers who's connection has been used to commit a copyright infringement because they  failed to secure their Internet access, may be penalised. The fine is 3500 Euro or one month's suspension (another peine complémentaire ). According to a report in Liberation , subscribers who install government-approved software which will be designed to stop copyright infringements, will be exonerated from the fine.

 

The report adds that no-one knows yet how this software will work. This is not surprising. The only way it can work is either to open every packet to see whether there is a copyrighted file inside, which implies scanning against a database supplied by the rights-holders and collecting societies; or it would have to work on file type where there would be a high chance of false positives. The former would be the most accurate (but would slow down the average pc quite seriously and represent an intrusion in that respect). The latter would be an intrusion on people's ability to work or enjoy their leisure time.

 

The law must be checked alongside the EU Telecoms Package. The re-draft means that it no longer breaches Amendment 138 in sense that the infringements will be determined by a court.

However,  Amendment 138 can be interpreted to mean that the fundamental right is a right to access and distribute any Internet content, services and applications, then the law would still be in breach.

Also, there is now Article 1.2a of the Universal Services and Users Rights directive. This article states that ‘national measures regarding end-users' access to and/or use of services and applications ‘ must respect the right to privacy. Somehow, surveillance of all forms of electronic communication in search of a copyright-infringing song,  would seem to me  to be an infringement on the citizen's right to a  private life and correspondence.

 The clause was inserted into the Telecoms Package by the UK government representatives in Brussels, presumably with the French permanent representative looking on.  Is this therefore a 'marked negligence'l? Or is the French Ministry of Culture as incapable of proof-reading as their colleagues in the Department for Business, Innovation and Skills*? 

 

The law passed the French Senate on July 9 and is due to go to the Assemblee Generale next week.

 

The full name of the law is Project de loi relatif à la protection pénale de la propriété littéraire et artistique sur internet . ( click link to download pdf).

 

*See my article in the Digital Britain section on the UK government and Amendment 138. 

 

This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2009), Hadopi 2:  a marked negligence http://www.iptegrity.com 14 July 2009.