Take me to the European Parliament: Is French Three Strikes Law Out?

The European Parliament reinstated yesterday Amendment 138 of the “Telecom Package” that had been rejected by the Council, which would prevent government to restrict user’s access to the Internet without prior ruling by the judicial authorities. According to the initial wording of the amendment “no restrictions may be imposed on the fundamental rights and freedoms of end users, without a prior ruling of the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights", but it was replaced by "and the right to a judgement by an independent and impartial tribunal established by law and acting in respect of due process in accordance with Article 6 of the ECHR."

France had fought hard against Amendment 138 which would protect users’ rights against the three-strikes sanctions that is at the core of the hotly debated French Internet and Creation bill. The government did not succeed of having it voted on April 9, and a new version of the bill is currently debated by the French Parliament. If voted, article L. 331-25 of the French IP Code would allow that the Internet access of a customer having infringed his obligations can be suspended “for a period of two months to one year with the impossibility for the subscriber, to subscribe for the same period another contract for access to a communication service to the public online at any operator.”

The law created the HADOPI, the « Haute Autorité pour la Diffusion des Œuvres et la Protection des Droits sur Internet » (High Authority for the Diffusion of works and protection of rights on the Internet), an independent Administrative Authority. The HADOPI is in charge of enforcing the « three strikes and you’re out” law. It would fist send an email to the user downloading protected materials, then a registered letter, before finally made the decision to cut access for two months. But the HADOPI is not an “independent and impartial tribunal established by law and acting in respect of due process in accordance with Article 6 of the ECHR" so, according to amendment 138, has no right to cut Internet access.

So, as of today, the future of the HADOPi bill is bleak. Did I hear a sight of relief?

Cette Pipe, Elle ne Fume Pas

The French are getting a trifle too PC for my taste. There is a great exhibition on Jacques Tati in Paris right now. The Monsieur Hulot character created by Jacques Tati smokes the pipe, or, at least, has a pipe in his month, although he does not appear to be smoking it (or at least, I do not remember him puffing away.) Posters announcing exhibitions are traditionally featured in Paris on the sides of the buses, and inside the metro. Well, both companies refused to feature the Tati poster as is, because Mr. Hulot smokes the pipe, and that would be the 1991 "Evin law" prohibits any propaganda or publicity, direct or indirect, of tobacco or tobacco products.

But both the SRF, Société des Réalisateurs de Films, (filmmakers society), and the Syndicat de la Critique de Cinéma (cinema critic syndicate), issued a common press release asking bith the bus and the metro companies to finance a reprinting of new posters featuring Monsieur Hulot and his pipe, claiming that "This censoring in the name of health leads to an unbearable revisionism which affects art and culture" ("Cette censure sanitaire conduit à un révisionnisme insupportable touchant l’art et la culture.) They also claim that, by presenting a distorted picture of Jacques Tati, it diverted and undermined the integrity and spirit of his work, and that constitutes an offense under the Code of intellectual property.

Indeed, the French IP Code protects the integrity of the works through the droit moral. Pursuant to Article L121-1 of the Intellectual Property Code, " An author shall enjoy the right to respect for his name, his authorship and his work. This right shall attach to his person. It shall be perpetual, inalienable and imprescriptible."

You may sign a petition against erasing Mr. Hulot's pipe here.

French Version of the the DMCA Takedown Notices

The French “Internet and Creation” bill proposes to add an article L. 336-3 to the French IP Code. This article would oblige the client of an ISP “to ensure that [his] access is not being used for purposes of reproduction, representation, or making available to the public works or objects protected by copyright or a neighboring right without the permission of the holders of these rights”.

This system is similar to the DMCA takedown notices, and the purpose of the bill is, of course, to try to discourage illegal music and films downloading. Yet, the scope of the article is very broad. Imagine accessing a blog that would illegally reproduce pictures of the latest family trip to Grandma, stored on the family computer hard drive, but used by little Billy without Big Sis permission.

The bill also creates a new independent administrative authority, the High Authority for the dissemination of works and protection of rights on the Internet (Haute autorité pour la diffusion des œuvres et la protection des droits sur internet), that would be in charge of making sure that the dispositions of the article L.336-3 are respected.

What gives? According to the riposte graduée the bill proposes to put in place, the ISP client would risk, after several warning of the High Authority, to have his Internet access shut down, three months to a year, while still having to pay the ISP invoice (Art. L. 331-28), a more enviable fate than the one he faces under the current of article 335-2, §§1 and 2 of the Intellectual Property code: “Any edition of writings, musical compositions, drawings, paintings or other printed or engraved production made in whole or in part regardless of the laws and regulations governing the ownership of authors shall constitute an infringement. Any infringement shall constitute an offence.

Infringement in France of works published in France or abroad shall be liable to a three-year imprisonment and a fine of € 300.000.”

The High Authority would also be in charge of creating a database of all the persons that have been found to infringe copyrights, and thus had their Internet access cut off.

The bill, already voted by the Senate, will be discussed at the Assemblée Nationale early next month.