The High Autority undertakes:
- A mission to encourage the development of the legal offer and observe the legal and illegal use of works protected by copyright or by a related right on electronic communications networks used for the provision of online public communications services;
- A mission to protect such works from infringements of said rights committed on electronic communications networks used for the provision of online public communications services;
- A mission to regulate and monitor technical protection measures and the identification of works protected by copyright or by a related right.
In the pursuit of these missions, the High Authority may recommend any legislative or regulatory adjustment. It may be consulted by the Government in respect of any bill or decree relating to the protection of literary and artistic property rights. It may be consulted, furthermore, by the Government or by parliamentary commissions in respect of any issue concerning its areas of competence.
The High Authority consists of a College and a Rights Protection Commission:
The chairperson of the College and the chairperson of the High Authority are one and the same. Notwithstanding any legislative provision to the contrary, the missions conferred upon the High Authority are likewise assumed by the College. The Rights Protection Commission is responsible for the implementation of the “graduated response” procedure, pursuant to Article L. 331-25 of the French Intellectual Property Code. Members of the College and of the Rights Protection Commission shall dischange their duties independently, free from external influence.
Hadopi was created in the wake of a transposition of the European regulatory framework for digital practices, giving rise to the foundation of the Regulatory Authority for Technical Measures, the missions of which Hadopi has taken over. Following an adjustment to the constitutional requirements, an independent public organisation was put in place with a somewhat atypical structure.
Whereas the pre-criminal, informational procedure of the “graduated response” constituted its most controversial tool, the legislator entrusted this new Authority with the implementation of an array of duties, aiming more broadly to encourage within the digital world good practices conducive to better reconciling the legitimate interests of both the creators and the consumers of works.
The undertaking of the High Authority’s legal missions shed light on new areas of activity, particularly for the protection of rights, and continues to inspire a range of ideas as to the organic and institutional evolution of the Institution and the development of its missions and procedures. Having completed its first cycle and now under new governance, the future of the Institution is full of promise.
With the transposition of European provisions to further address the effects of the digital cultural revolution, the French Government seized the opportunity to confront the development of unauthorised uses of the internet. This entailed, firstly, legally protecting the technical protection measures in place for the digital use of works and, secondly, testing a new procedure of progressive warnings designed to discourage the practice of peer-to-peer (P2P) exchange.
The European legislation:
At the turn of the millennium, the World Intellectual Property Organization (WIPO) took stock of the considerable impact of online communication technology on the creation and use of works. The Copyright Treaty was entered into on 20 December 1996 (Copyright Treaty, World Intellectual Property Organization, adopted in Geneva on 20 December 1996). The following year, the European Commission developed a draft directive on the harmonisation of certain aspects of copyright and related rights in the information society (Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society).
The statutes adopted by the European Parliament and the Council on 22 May 2001 were to take account of the diverse societal and cultural implications of the digital expansion and to strike a fair balance between the interests of the rights holders and users of works. The directive aimed to adapt the legislative provisions in respect of copyright and related rights to the technological advancements of the information society, ensuring a high level of protection of intellectual property. By the same token, Directive 2001/29/EC acknowledges the benefit of introducing exceptions and limitations to these rights. These have been determined by way of an exhaustive list and are required to pass the “three-step test” (Art. 9-2 – Berne Convention for the protection of literary and artistic works, 1886). In addition, the directive forbids the circumvention of technical protection measures designed to prevent unauthorised use of works, while also asking that Member States take appropriate measures such that these technologies do not deprive users of the benefit of the above-mentioned exceptions and limitations.
The debate in France:
In 2005, the transposition in France of Directive 2001/29/EC instigated heated debate about the bill referred to as the Law on copyright and related rights in the information society (DADVSI law). The use of peer-to-peer software for the purposes of sharing works was rapidly growing in scale. In legal terms, millions of users were committing acts of infringement, without necessarily realising it, potentially punishable by three years’ imprisonment and a €300,000 fine.
After the failure of the amendment seeking to authorise such practice by means of a new licence, entailing paying fees for internet access, the law voted for on 30 June 2006 reclassified as minor offences unauthorised uses of works via peer-to-peer sharing software, in order to ensure greater proportionality and effectiveness. Yet this provision was censured by the Constitutional Council (Decision No. 2006-540 DC of 27 July 2006), judging that it introduced an unjustified inconsistency for authors whose rights have been infringed, depending on the technical means employed.
Upon the conclusion of another notable amendment, however, the application of sanctions for infringement for publishers of software manifestly designed for the unauthorised sharing of works was provided for in the final wording of the law. Law No. 2006-961 of 1 August 2006 stipulates, furthermore, the obligation on the part of subscribers to secure their internet connection.
A first attempt to regulate technical protection measures:
Against the background of the appropriate measures referred to in Directive 2001/29/EC to avoid overreaching protection of works by way of technical protection measures, the legislator in France, again invoking the DADVSI law, decided to establish a dedicated authority, the Regulatory Authority for Technical Measures, to which disputes could be referred for settlement in cases where a technical protection measure impedes effective access to the benefits of an exception to copyright or to interoperability.
The music industry, a primary target of the DADVSI law, was quick to scale back its use of technical protection measures, at least with regard to physical media. Nonetheless, these regulatory provisions remain of great importance in the context of the massively expanding digital use of cinematographic, audiovisual and literary works.
The constitutional censure of the bill first subject to a vote in May 2009 led to a further adjustment of the provision re-establishing judicial authority to impose any sanctions in infringement proceedings resulting from the graduated response procedure.
The underlying concept:
With the DADVSI law still failing to provide for sanctions tailored to the increase in peer-to-peer practices or the obligation to secure one’s internet connection, in 2007, the French Minister of Culture and Communication launched an initiative to combat illegal downloading and to develop the legal offers of musical, audiovisual and cinematographic works.
This mission, undertaken by Denis Olivennes (Report on the development and protection of cultural works on the new networks, Denis Olivennes, November 2007), culminated on 23 November 2007 in the conclusion of the “Élysée” agreement (Élysée Agreement for the development and protection of works and cultural programmes on the new networks, 23 November 2007) between rights holders, technical service providers and the public authorities, which agreed “both to promote the legal content offer on the internet for the benefit of consumers and to implement, in accordance with individual liberties, new measures to prevent piracy”.
The public authorities, therefore, endeavoured to submit to Parliament a system of prior warnings and sanctions as a deterrence of intellectual property rights infringements on new networks by means of unauthorised sharing.Based on the principle of liability of subscribers whose internet connections are inadequately secured, this graduated response procedure was to be implemented by a dedicated public authority.
Law No. 2009-669 of 12 June 2009 promoting dissemination and creation via internet – the so-called “Hadopi 1” law – thus gave rise to the foundation of the High Authority for the dissemination of works and the protection of rights on the internet.
However, the provision granting the High Authority powers to directly impose penalties on subscribers, as far reaching as the suspension of internet access, was censured by the Constitutional Council (Decision No. 2009-580 DC of 10 June 2009).
The Council determined that freedom of communication and of expression entails freedom of access to online communications services, and that the power to prevent or restrict internet access in order to protect rights holders lies with judges alone, not with an administrative authority.
An issue of compliance:
As a consequence, Law No. 2009-1311 of 28 October 2009 on the criminal protection of literary and artistic property on the internet – the “Hadopi 2” law – no longer conferred upon the High Authority powers to impose sanctions.
The Institution is nonetheless assigned with issuing warnings to internet subscribers when referred cases liable to constitute a breach of the obligation of all subscribers to ensure the lawful use of their internet connection.
Subscribers warned by Hadopi whose internet connection continues to be used repeatedly to commit acts of infringement can be sentenced by a criminal judge to fines as high as €1,500.
These penalties are handed down by the ordinary courts, under a minor offence of gross negligence instituted by Decree No. 2010-695 of 25 June 2010 (Decree No. 2010-695 of 25 June 2010 on gross negligence for the protection of literary and artistic property on the internet). The significant provision thus introduced with regard to offenders is often still neglected, however, in the controversies that continue to focus on its original iteration.
In addition, the Constitutional Council's decision sets out a framework of principles applicable to the diverse proposals put forward, as we shall see, to consolidate the dissuasive influence of the sentencing procedure.
As had been the case for the regulation of technical protection measures, it was deemed necessary by the legislator for the graduated response to be entrusted to an authority independent of the executive branch of government and for its implementation to fall within the scope of a special collegiate body, as part of a comprehensive strategy for the performance of the various duties entrusted to the Institution.
Opting for independence:
When the Regulatory Authority for Technical Measures was created in 2006, there was a parliamentary consensus that only a special independent body could guarantee the requisite impartiality without impeding the public efficacy of the campaign. The legislator devised a versatile and progressive solution that would address the challenges faced by private individuals and small-scale organisations when referring to the courts the practices of major economic players alleged to be infringing upon their rights. It was of particular importance to retain functional independence when the role of the Regulatory Authority for Technical Measures was converted and merged into Hadopi in 2009.
Moreover, throughout the implementation of the graduated response, it was necessary for the High Authority to process in bulk the personal data of implicated subscribers. Weighing up the rights and liberties at stake, in 2009, the Senate chose to grant this new authority the status of a legal entity “in order to safeguard its independence and impartiality, and allow it to function with greater versatility” (Report No. 53 – 2008-2009 – Michel Thiollière, for the Cultural Affairs Committee, dated 22 October 2008), paving the way for it to become an independent public authority (as opposed to the Regulatory Authority for Technical Measures, which was an independent administrative authority without legal personality). The member of the Senate presenting the bill drew upon the distinctiveness of the French approach, by way of State intervention in contrast to contractual procedures abroad, “reflecting the firm guarantees of our legal framework in respect of the processing of personal data and of individual liberties”.
Unlike comparable measures in place or under development in other countries, primarily the United States and the United Kingdom, the experiment carried out in France by virtue of the graduated response hinges on cooperation among rights holders, who are responsible for reporting the unauthorised sharing of works in their repertoire, and an independent public authority taking charge of the identification of offending subscribers and corresponding issuance of notices.
In accordance with the provisions of the Hadopi 1 law, the High Authority was granted powers to impose sanctions as an outcome of the graduated response procedure, causing the legislator to provide strict guaranties of independence and impartiality with regard to the Authority's governance, something which has been preserved.
The Institution, therefore, is managed by means of two decision-making bodies: the College has overall governance of its activities and oversees the performance of its duties, with the exception of the graduated response, which falls under the purview of the Rights Protection Commission (CPD). While this division of responsibility was originally intended to reinforce the independence of members assigned with imposing sanctions, it is also in the interest of protecting personal data processed during pre-criminal proceedings. A number of protective measures concerning Hadopi’s autonomy, furthermore, determine the composition of these two bodies (conditions for the appointment of members, incompatibility criteria, non-renewable mandates, election of the chairperson, etc.).
A comprehensive strategy:
In spite of this duality of collegiate bodies, Hadopi maintains the necessary unity of strategic vision and consistency of policy and management decisions of a single legal entity entrusted with a budgetary allowance for all missions.
As spelled out in its by-laws, consultation of the Rights Protection Commission on a range of general and specific issues relating to its area of activity, is required prior to any deliberations of the College. Such organisational dialogue is all the more crucial because, in its capacity as an independent Public Authority, it is incumbent upon Hadopi to fulfil all the duties ascribed to it by the legislator. Accordingly, it must distribute its resources in due measure and adjust its activities effectively to the evolving nature of digital practices. With functional decision-making autonomy to roll out the graduated response procedure and equipped with a coherent strategy, the High Authority is well calibrated to implement the comprehensive action, expected by the legislator, to reconcile in the digital domain the defence of creativity with the needs of the public.
The Chairman of Hadopi, Christian Phéline, presented the Institution’s annual report for 2016-2017 in Paris before the Latin American Institute on 30 November 2017.
On the eighth anniversary of the High Authority, Christian Phéline, Dominique Guirimand and Pauline Blassel provided a review of the Institution’s results since 2010 and of its various tasks and activities over the course of the previous period.
The report, of which the publication and submission to the Government and to Parliament are stipulated by Article L. 331-14 of the French Intellectual Property Code, presented all of the tasks and activities undertaken by the High Authority: the observation of legal and illegal practices, the promotion of the legal offer, the provision of information for consumers, the implementation of the graduated response, the campaign against illegal services and the regulation of technological protection measures.
In accordance with Article L. 331-14 of the French Intellectual Property Code, the High Authority reports annually on its activities in a public report, which it presents to the Government and to Parliament.
The Law of 20 January 2017 on the general status of independent administrative authorities and of independent public authorities introduced new provisions in this regard.
The annual reports of the High Authority are now to be published before the 1st of June of the subsequent financial year. The Institution has hitherto published its reports in the autumn, covering a period of activity from the middle of one financial year to the middle of the next financial year, with a projected budgetary implementation for the remainder of the period in question (with the exception of the two latest reports containing current data for the period until October).
In order to fulfil this obligation to report on the past calendar year in its entirety, a new report for 2017 shall be published within the legal timeframe with a view to providing up-to-date figures based on the latest data available, taking into account the final budgetary implementation data for 2017 as well as the activities that have been undertaken in the interim.
Furthermore, Article L. 331-14 of the French Intellectual Property Code has been subject to an amendment, introducing the obligation on the part of the High Authority to report “on its activities, on the performance of its missions and on its resources” under Article 21 of the above-mentioned law: “All independent administrative authorities and independent public authorities shall submit annually, before the 1st of June, to the Government and to Parliament a report on their activities, on the performance of their missions and on their resources.”
The new wording of Article L. 331-14 is as follows: “The High Authority shall report annually to the Government and to Parliament on respect of the obligations and undertakings entered into by professional entities of the various sectors concerned. Said report shall be made public.” As such, the above reference provides the foundation for Hadopi's contribution to the evaluation of certain anti-piracy tools and policies and the use of content recognition technology.
The fight against copyright infringement on the Internet is a global challenge facing piracy practices of a largenumber of web users who moved from peer-to-peer to streaming uses and recently, towards IPTV piracy.
Many countries are concerned with the emergence of multimedia players1 pre-configured with third-partyapplications (add-ons), which enable or facilitate access to illegal content. These software packages can be installedon most terminals, in particular set-top TV boxes (sold between 50 and 100 euros). They provide a very cheapservice threatening the business model of exclusive live broadcasting rights for sports events and premium contentoffers. Their attractiveness owes much to the fact that they constitute a one-stop shop as opposed to a somewhatfragmented legal offer potentially perceived by the consumer as expensive to access the same content variety.Actions taken against them are increasing in particular in the United Kingdom, Canada, the United States andPortugal, and right holders internationally rally around an IPTV task force. In a case recently brought before theCourt of Justice of the European Union (CJEU) by the Netherlands, this jurisdiction ruled that selling such boxesconstitutes a communication act to the public.
Piracy has become a multifaceted and sprawling phenomenon, exceeding the initial question of the sharing ofcopyrighted works.
Stakeholders, as a result, are pressing hard towards the adoption of a multi-pronged approach to tackle the threatthat arises from this parallel ecosystem. Their main recommendations focus on adapting and streamlining judicialprocedures’, promoting self-regulation based on soft law and extrajudicial mechanisms, building-up synergiesbetween public awareness campaigns and targeted legal actions against large-scale counterfeiting.
However, costs and efficiency assessment of such actions lead public and private actors to reconsider anti-piracyand anti-counterfeiting actions.
Thus, the costs incurred by market players (ISPs and right holders) and the evolution of uses led several countries(Australia, Canada, United States and New Zealand) to review or even drop the implementation of multiple-stepwarning systems, all of which were devoid of a last stage including a financial penalty. Likewise, in numerouscountries, because of financial constraints, right holders do not send formal compensation notices to web users.Instead, they target big down-or up loaders of infringing materials and reinforce applicable sanctions.
In the fight against commercial counterfeiting, actions need to be efficient and financially balanced. With theprotected status of hosting providers or territorial limits, other steps are taken to involve actors who can contributeto the fight against copyright infringement by not condoning it or taking benefit from it. The efficiency of a legalaction relies on speed and accuracy of gathering evidence of the infringing character of the websites, containingcost of legal actions and preventing “mirror sites” from reappearing.
This summary proposes a typology of existing mechanisms to fight online-counterfeiting, implemented orcontemplated in the eighteen countries surveyed, depending whether they are targeting web users (by setting upa mass logic or more targeted) (1) or commercial counterfeiting (by associating digital sector market players in thefight against massive counterfeiting streaming websites, direct download, or links) (2).
- The International survey " Key lessons learned from international benchmarking" can be downloaded by clicking on this link.