Copyright Infringement at the Digital

Valérie Laure Benabou Prof. Université Versailles-Paris-Saclay

• I. Specificity of on-line infringement • II. French answers and their efficiency

I. Specificity of online infringement

Digital Analog International National S y Massive infringement (quantity Limited infringement s of works/ territorial scope) t e Amateurs (digital copy is Professional (reproduction was made m necessary to any act of by professional distributors) i consumption ) c

Disruption Appearing business models Existing business models

New intermediaries Known intermediaries Differences between Analog and Digital World • Dynamic • Fast-speed evolution of the framework  Technology (P2P ; downloading/uploading ; streaming, linking, PVR/nPVR)  Business (Itunes-Amazon/Deezer-Spotify/Youtub/Mega UpLoad-Pirate-Bay)  Consumption habits (sharing/ advices/mobility-portability)  Law (national answer/European/International ? Cooperation/competition ?) Why Online Copyright Infrigement is Specific ? Actors contributing to counterfeiting Content providers of users illegal goods

Infringement

«Normal infringement » Intermediaries

Content providers of users illegal files or stream/users

Infringement

« On-line infringement »  Until 2010 : online legal services for protected contents seemed unattractive in comparison with illegal services as regards : • price • breadth of titles and content offered, • ease and timeliness of access • restrictions (use of Digital Rights Management software).

 Since 2010 : Development of legal, cheaper, faster and more comprehensive services • Spotify and Deezer in music, Netflix, Blinkbox, Hula et al for film and TV, and Amazon for e-books. • Vast choice of legal online music services in European countries and English speaking countries. • Services are growing quickly (territorial scope & incomes) • Consumers’ satisfaction with the legal is improving (e.g. in France 64% of consumers consider the offer ‘satisfactory’) • (See Sandvine Global Internet Phenomena Report : https://www.sandvine.com/trends/global-internet-phenomena)

Legal offer/Illegal offer Evolution Ex. Spotify • Diversity of situations / responses worlwide • Diverse developments of technology (broadband, mobile phone) • Diverse uses and habits of consumption • Despite its worldwide dimension, online enforcement of copyright has been characterised by a lack of shared approaches between countries, at the EU or WIPO level.

Lack of International or European Solution • In Europe, insufficient legal framework as regards on line infringement : • D. 2004 Enforcement is not specific to digital • D. 2000 E-commerce does not address specifically copyright infringement and provides for a non-liability regime • D. 2001 Infosoc grants exclusive rights but poor answers as to enforcement (except art. 8)

European Insufficient Legal Framework (see previous presentation) • Brazil (BR): Lei Azeredo (1999) and Lei Carolina Dickermann (2012) • Canada (CA): voluntary agreement from 2000, CMA (2012), formalised notice and notice regime to come into force in 2015. • Italy (IT): Agcom (Dec 2013) • South Korea (KR): key revisions of the South Korea Copyright Act (2006, 2009), revision of Telecommunications Business Act (2011) • The Netherlands (NL): voluntary Notice and take down Code of Conduct (2008) • Spain (SP): Ley Sinde (2009) and Ley Lassale (2011) • United Kingdom (UK): DEA (2010) but not implemented yet. First court injunction blocking infringing website under the 97A Copyright Designs and Patents Act in 2011. PIPCU established in 2013 and Creative Content UK established as alternative to DEkA (2015). • US: DMCA (1998), establishing safe harbours for service providers, CCI established the CAS, which includes graduated response notifications (implemented in February 2013) • France (FR): Act for Copyright and Neighbouring Rights in the Info Society (2006), Hadopi Laws (2) (2009) Implementation per country

II. French answers and their efficiency

• Measures against online copyright infringement can be either dedicated legislative programmes either feature as one part of a set of wider legislation responding to a range of copyright and internet-driven issues.

 IP-driven • Implementation of the 2001 Infosoc Directive : 2006 (DADVSI Act) • Implementation of the Enforcement Directive : 2007 Act (Not dedicated to mere copyright but all IP) • HADOPI laws (first invalidated, then a second) : 2009 (out of any implementation of EU text)  Internet-driven • Protection of private data (and role of the CMS) : 2004 Act (implementation of the 1998 Directive) • Liability of intermediaries : 2004 LCEN (implementation of the e- commerce Directive) Origins of the measures  Educative/preventative • Actions aimed at individual consumers and subscribers • ‘graduated response’ system developed by the HADOPI aimed at educating and preventing alongside with punishment • promoting legal online offers better by signposting to sites that are ‘clean’ and legal (HADOPI mission as to labels : failure) • Filtering (cooperation with ISPs or search engines) / Black-listing or degrade the ranking of the infringing sites

Purposes of the solutions  Mitigating and punitive • Some actions are designed more clearly to mitigate the effects of, and stop infringement: • ‘notice and takedown’ procedures that order the takedown of infringing material (Hosting providers LCEN) • Injunctions towards the ISP in order to block the access to the content/website or deletion of illegal copies (L. 336-2 CPI and injunctions ) • « follow the money » approaches that target advertising and financial intermediaries are all aimed at reducing the supply of such material (no specific measure) • Punitive sanctions • Criminal offences for on-line infringement (fines, prison) • Damages • Cutting off internet access altogether (Formerly in the HADOPI but finally withdrawn in the law) Purposes of the solutions First attempt to involve ISPs Beginning of the 2000’s

Failure : DADVSI Vivendi provision (against File-Sharing Softwares)

Second attempt to involve ISPs Mid 2000’s

Failure : HADOPI Three Strikes/ Graduated response

Third Attemp to involve intermediaries Search/ Paywal Follow the money approach (pending) Diversity of solutions : Voluntary measures or legal sanctions First attempt to involve ISPs Beginning of the 2000’s

Failure : DADVSI Vivendi provision (against File-Sharing Softwares) What’s

Second attempt to involve ISPs Mid 2000’s next ??

Failure : HADOPI Three Strikes/ Graduated response

Third Attemp to involve intermediaries Search/ Paywal Follow the money approach (pending) Diversity of solutions : Voluntary measures or legal sanctions • Different strategies developed by the rightholders to fight against the phenomenon Historically, • First target : providers of file-sharing software (The ‘Napster’s age’) : “Vivendi” provision of the DADVSI, 2006 • Second target : Internet Service Providers (ISP) (the involvement of ISPs in counterfeiting struggle) HADOPI, 2009 • Third target : end-user (the graduate response) HADOPI, 2009 • Now : Involvement of the “new intermediaries”: search engines (Google), follow the money approach (Paypal, advertisers) : L. 336-2 CPI (HADOPI, 2009)

History of a struggle • Supply-side actions that target mainly companies providing or facilitating access to infringing content focus upon: • Extra judicial processes • Take down and blocking of sites : YES • ‘Follow the money’ approaches– targeting intermediaries who either knowingly or not knowingly are involved in monetising online content that infringes copyright (e.g. advertisers and financial intermediaries) : • Legal actions • Companies can be pursued through the courts, to take down and block sites but also to sue for damages and compensation. • Contributory infringement actions : NOT COMPLYING WITH FRENCH TORT LAW PRINCIPLES

Supply-side actions • Demand-side sanctions target individual subscribers

• Fines (all countries) and imprisonment (BR, KR) • traditional’ judicial measures to pursue persistent infringers. • Graduated response letters (US, FR, KR, UK) • warning letters of increasing severity sent to subscribers whose accounts have been linked to identified online copyright infringement, with the ultimate sanction of prosecution if infringement from the account being monitored does not cease; • Termination of access (KR, US) Formerly France but withdrawn • right to terminate the internet access for a given period for subscribers whose accounts have been linked to persistent infringement; • Other strategies • Throttling back’ (US) • slowing down the speed of the internet connection to accounts that have been linked to infringement if this behaviour persists; • Transactional Damages (Germany): Right holders collect the IP address with the ISP and send a letter enjoigning the internet user to pay damages in order to cease the proceedings (transaction)

Demand-side sanctions

• Several countries combine the largely punitive sanctions with a strong emphasis on educative and preventative measures: • Signposting the legal offer – some countries (IT, KR, NL) provide lists and directories of ‘clean sites’ to increase consumers' awareness of the legal offer in their countries; • Subsidies to consume the legal offer (FR) – France has experimented with providing subsidies to consume legal online content, in the form of the Youth Music Card, a scheme that ran between 2010 and 2012; and • Graduated response letters (FR, CA, US, UK) – government sponsors usually class this intervention as primarily educative rather than punitive (KR is the exception).

Combination

I. Upstream : fighting against « piracy »

II. Downstream : fighting against users : the « graduated response »

III. Middle of the stream

Combination

• Impossibility to sue the direct « infringer » / undertaking offering a service of « pirated » works • Problems of qualification : • commercial/non commercial • quantitative scale ? • Private copying ? (source lawfully provided)/ failure of the global licence • Problems of enforcement • Localisation of the « infringement » : International private law rules (not the domicile/residence of the victim but focalisation theory) • Mobility of the pirates (mirror website)

I. Upstream

• Creating a new offence for on-line infringement • First initiative DADVSI law (August 2006) • Contravention penalty 150 euros for upload/30 euros for download • Bill considered unconstitutional by the Constitutional Council (27 July 2006) : fails to comply with the principle of equality before the law and legality of punishments and offences. II. Downstream : creating a dedicated offence ? NO • Voluntary approach : controlling the internet users by their ISPs • Very very bad image of the rightholders within the public ; growing hostility • High costs of litigation for the rightholders (anti-economic effects) • Bad will of the ISPs : no involvement of the ISPs (Olivennes agreements never entered into force)

• Failure of the voluntary phase : no involvement of the ISPs/ High rates of infringement

• Legal answer : Law HADOPI 1 Act n°2009-669 of June 12th 2009 Furthering the Diffusion and Protection of Creation on the Internet : legal obligations of cooperation collecting and storing connection data/providing identification

• Forced cooperation of ISP (penalty in case they don’t enforce the sanction or subscribe with a “banished” end-user).

Downstream : “voluntary approach” of the ISPs ? NO. • Reluctance of the criminal judge to sue • Creation of a legal body (public authority) HADOPI to automate the proceedings • New duty for the subscriber to monitor his connection : Article L. 336- 3 of the Intellectual Property Code provides "A person who has subscribed to internet access to online public communication services is under a duty to ensure that said access is not used for reproducing, showing, making available or communicating to the public works or property protected by copyright or a related right without the authorization of the copyright holders provided for in Books I and II when such authorization is required". • Consecutive warnings before stronger enforcement proceedings : Graduate response • Dialogue during the proceedings • Transmission to the legal authority for sanctions (former Internet suspension/fine) • Transmission to the ISP to enforce the decision (Black-list)

Downstream : Graduate Response. Rationales ? Pedagogical impact Effectiveness of the sanction

Softer sanction than the strict Mandatory collaboration of the ISP application of the law for which are compelled to cut the infringement to copyright internet access

Symbolic sanction (biblic : you are Possibility to treat a wide range of punished through the instrument of cases through rapid proceedings the sin) (automaticy)

Adapted sanction : the judge were Reduction of the costs of litigation not convicting the internet users… for the right holders

Alleged virtues of the graduated response system • Act I . First Graduated Response System

• Double warning + • Supension of internet access + • Sanction by the HADOPI Graduated Response : History Subscriber of the Internet HADOPI access = Recommandation by mail (Commission « pirate » First warning des droits)

First infringement Proceedings initiated by unions or collective societies Subscriber of the Internet access = Recommandation by « pirate » letter with electronic signature HADOPI • Second warning

Second infringement Proceedings initiated by unions or collective societies Former system of suspension

Suspension of the Subscriber to HADOPI the internet internet access (only!) access for one year

Judge

ISP

Initiator Former system of suspension

Suspension of Internet Subscriber of HADOPI access for one year the Internet access

Possible Judge amicable arrangement ISP with the subscriber Initiator Former system of suspension

Suscriber of an HADOPI Internet access

Suspension Judge reduced to 1 month or 6 ISP months in case of repeated Initiator offense European Parliament, (Amendment 138 to the Telecom Package on 21 April 2009) prevents explicitly the privation of fundamental right without a prior ruling by the judicial authorities

Strong oppositions to the bill Decision n° 2009-580 DC of June 10th 2009 of the Constitutional Council

• The bill is not conform to the Constitution for : • It does not guarantee the Freedom of expression : • Point 12 : Article 11 of the Declaration of the Rights of Man and the Citizen of 1789 proclaims : "The free communication of ideas and opinions is one of the most precious rights of man. Every citizen may thus speak, write and publish freely, except when such freedom is misused in cases determined by Law". In the current state of the means of communication and given the generalized development of public online communication services and the importance of the latter for the participation in democracy and the expression of ideas and opinions, this right implies freedom to access such services.

• It reverses the burden of proof (violates the presumption of innocence) • Point 18. Thus by reversing the burden of proof, Article L 331-38, introduces, contrary to the requirements deriving from Article 9 of the Declaration, a presumption of guilt on the part of the internet access holder such as to entail the imposition of penalties restricting or depriving him of his rights.

• Only a judicial judge can pronounce such sanctions because he guaranties the respect of liberties • point 16 : “The powers of this Committee may thus lead to restricting the right of any person to exercise his right to express himself and communicate freely, in particular from his own home. In these conditions, in view of the freedom guaranteed by Article 11 of the Declaration of 1789, Parliament was not at liberty, irrespective of the guarantees accompanying the imposition of penalties, to vest an administrative authority with such powers for the purpose of protecting holders of copyright and related rights” Constitutional obstruction Suspension of Internet Subscriber of HADOPI access for one year the Internet access

Possible Judge settlement out of the ISP court with the subscriber Initiator

You have been found illegally downloading the whole Dick Rivers album. If you ever continue, we will be oblige to.

Oh my god! But this is terrible!

And the letter ends like that.

• Act II. Second Graduated Response

• Double warning + • Transmission to the criminal judge + • Suspension of internet access (and payment of the ISP) + Penalty for gross negligence Graduated Response : History

• Back to the judge, instead of administrative authority, BUT criminal judge sitting with a single judge

• When copyright offences are committed by use of a public online communication service : they may be dealt with under a summary procedure of a criminal order

 Specific procedure for on-line infringement

• Constitutional Council Decision on HADOPI 2 22th of October 2009 • “As regards the particularities of the offence of infringement of copyright committed by the use of a public online communication service, Parliament was at liberty to provide for specific rules governing prosecution for said offences. When providing that these offences be tried by the Tribunal correctionnel sitting with a single judge or prosecuted under a summary procedure, Parliament intended to take into account the extent of infringement of copyright committed via these communication services. The rules of procedure introduced by the challenged provisions do not create any difference between persons committing such acts.”

HADOPI 2 : judge is back

• When the offence has been committed by use of a public online communication service, persons guilty of the offences provided for in Articles L. 335-2, L. 335-3 and L. 335-4 may also be liable to imposition of a supplementary penalty of suspension of access to a public online communication service for a maximum period of one year, together with a prohibition on taking out any other contract of a similar nature with another online access provider for the same period. • When such a service is purchased as part of a commercial package including other types of service such as telephone or television connections, the decision to suspend online access shall not affect subscriptions to these other services. • Constitutional Council Decision on HADOPI 2, 22th of October 2009 : point 21 the new offence does not fail to comply with the principle of the necessity of punishments.

HADOPI 2 : one year suspension for copyright infringement validated • When the decision is executory, the High Authority for the Diffusion of Works and Protection of Copyright on the Internet shall be informed of the supplementary penalty provided for herein and shall in turn notify the provider of access to public online communication services of the same in order for the latter to proceed to suspend access of the subscriber involved no later than 15 days of said notice. • Failure by any provider of access to public online communication services to implement the notified order to suspend access shall carry a maximum fine of 5000 €.

HADOPI 2: enforcement by the ISP remains

• Suspension of access shall not, per se, affect the payment of the subscription fee to the service provider. Article L 121-84 of the Consumer Code shall not apply during the suspension period.

• Constitutional Council Decision on HADOPI 2, 22th of October 2009 : • The obligation imposed on the latter to pay the subscription fee, in the absence of any termination of the contract, constitutes neither a penalty nor a measure of a punitive nature. This provision, which is based on the fact that the breach of contract is attributable to the subscriber, does not disregard any constitutional requirement.

HADOPI 2 : the subscriber must keep on paying his ISP

• Article L. 335-7-1 : For offences in class 5 provided for by this Code, the supplementary penalty may be imposed in the same manner, in the event of gross negligence, on the holder of a right of access to a public online communication service to whom the Committee for the Protection of Copyright, pursuant to Article L 331-25, has previously sent by registered letter delivered in person and duly signed for or by any other method ensuring proof of the date of receipt thereof, a recommendation asking said holder of access to implement security tools for its Internet access. • Gross negligence shall be assessed on the basis of acts committed no later than one year from receipt by the holder of the recommendation referred to in the foregoing paragraph. • In such cases, the maximum period of suspension shall be of one month. • Failure by any person to comply with the prohibition on entering into another contract for access to a public online communication service during the period of suspension shall render said person liable to a maximum fine of 3 750€.

HADOPI 2 : new penalty for gross negligence

• Constitutional Council • The proportionate nature of a penalty is to be appraised taking into account all the ingredients of the offence which it is sought to punish. The arguments that the new charge fails to comply with Article 8 and 9 of the Declaration of 1789 must therefore be dismissed. • Secondly, it is incumbent upon the courts with relevant jurisdiction to appraise factual situations likely to constitute the "gross negligence" mentioned in Article L 335-7-1 of the Intellectual Property Code. This concept, which is not of an equivocal nature, is sufficiently precise to guarantee against any arbitrariness.

HADOPI 2 : new penalty for gross negligence/custody of internet connexion What are the practical results of the graduated response ? • Strong oppositions within the public • High difficulties to find the path through constitutional impediments • Privacy concerns (communication of IP address) • Equality (different punishments for the same offence DADVSI) • Freedom of expression (suspension of Internet) • Presumption of innocence (burden of proof reversed) • Role of the judge • High cost for the tax payer : HADOPI Budget • Difficult to assess the positive consequences as to tackling counterfeiting

Reactions/social acceptance • ILLEGAL CONSUMPTION • 18% of the French internet users declared to have illegal uses (exclusive or not) as compared to may 2013 (17%). • Illegal download : mostly videos/films (24%) and series TV (26%), music only 5%. • INTERNET ACCESS SECURITY • 84% of the French internet users know they shoud secure their Internet access (connection to secured Wifi raising as compared May 2013 (72% vs. 66%). • MOTIVATION Legal offer is too expensive (70%), not enough attractive (48%) and illegal use has already become an habit (47%).

HADOPI study (5 au 19 mai 2014) on the uses : no direct impact • Since HADOPI has started : • 37 114 274 notifications by the right holders, • i.e. average 70 000 notifications a day • More than 17 millions identification requests sent to the ISPs • 4 619 462 first warning sent • 458 067 second warning sent • 2 117 decisions of the commission of protection of rights • 313 transmissions to the prosecutor; • 49 court decisions • http://www.senat.fr/rap/r14-600/r14-6001.pdf

Assessment • Decree n° 2013-596 du 8 juillet 2013 has suppressed the suspension of internet access penalty • Remains the 1500 euros fine for gross negligence

• Between 2010 and 2013 only one subscriber had been condamned to the suspension of Internet access penalty

Assessment • Budget of the HADOPI has been cut (6 millions versus 10,06 millions d’euros at the begining) • running costs of €7m per year for 2013-14. • Executive head of the HADOPI + 12 employees fired in 2015 • Critical report of the French Senat (summer 2015) • Problem of the refund of the ISP (13 millions of euros are asked to the State/ HADOPI ?) • By the end of 2015, The judge has ordered to the State to publish a decree within six months as to the indemnities of the ISPs related to the graduated response (transmission of the identity related to the IP address)

Costs • The 4th of April 2016 the Conseil d’Etat has condemned the State to pay 900 000 euros to Bouygues. • Corresponds to the 2,4 millions of identification claims during the period between September 2010 and November 2015 : i.e. 37,5 cents of euros per IP address (Bouygues was claiming 1,26 millions euros) • Free (another ISP) is on the track, having introduced a similar claim

Costs • Hard option : criminal prosecution against repeated offenders • TGI 17 june 2015, 11 800 links towards P2P illegal files • First internet user convicted with 6 months prison penalty /110 000 euros damages

Downstream : criminalization ?

• “Middle of the stream” strategy • Trials against the provider of P2P filesharing software • US Case Napster (centralized P2P) • US Case Grokster (decentralized P2P) : contributory infringement/commercial use • Australia Kaaza’s case • New-Zealand Megaupload 2014 (pending) • France DADVSI 2006 : “Vivendi provision” (liable for making available software which are manifestly dedicated to illegal filesharing) • Article L. 335-2-1 CPI • Poor results : no substantial reduction of the flow • No substantial case-law

III. Middle stream : technology providers Article L. 335-2-1 CPI • C. Cass 25 September 2012 Radioblog : software providing functionalities for making a play-list and listening to it. • TGI Nîmes 28 June 2013 circumvention of Deezer TPM & making the software available to the public • TGI Paris, 12 May 2015 eMule paradise : linking + downloading a software for P2P file-sharing

III. Middle stream : technology providers • Financial contribution of the ISPs to compensate the loss of the rightholders • global licence : 2006 DADVSI attempt • Strong opposition of the rightholders/producers (the cake will be fixed only the shares may vary) • Strong opposition of the ISPs : why pay for something we did not have to pay so far • The pro : part of the authors and performers, consumers (alliance): better distribution of revenues within the creation actors • Amendement was voted, withdrawn (!) and ultimately a new vote erased it

Middle stream : the one who benefits from should pat for ? No. • Notice and take down system (numerous cases) but • NO Take down and stay down system • Miror websites re-cast the disputed work immediately • Rightholders bare the cost of mutliple notifications • Agreement for private solutions of resolution (Fast-track) • Suggestions in a spring 2014 report (Mireille Imbert Quareta) to implement a stay down system : hosting providers would have to « stay done » counterfeiting content for a period of 6 months • not in the discussion in the current bill….

Hosting providers obligation to « take down »? • Article 8 § 3 of the Infosoc Directive • Article L. 336-2 CPI • Decision of the Constitutional Council 2009-580 DC du 10 juin 2009, (point 38 interpretation) • No violation of Freedom of expression and communication of this procedure (contradictory) ; • But in the respect of this liberty it is up to the judge to pronounce a measure strictly needed for the respect of the rights (proportionality principle)

Middle stream : the one who can limit the infringement has to do so

Google Suggest service : suggestion of links C. Cass 12 July 2012 SNEP v. Google • Google was systematically orienting internet users, by showing key words suggested according to the number of requests towards sites where recordings are made available to the public without the autorisation of the rightholders. Consequently the service was providing means to infringe copyright, • The measures intended to prevent or make cease this infringement by the suppression of the automatic association of the key words with the terms of the request from Google that could contribute to remedy by rendering more difficult the search of litigious sites, without expecting a total effectiveness Google Suggest service : suggestion of links

Intermediaries • Article L. 336-2 du Code de la Propriété Intellectuelle • Tribunal de Grande Instance de Paris (TGI) 4 Decembre 2014

• No general duty of survey • But possible injunction for blocking the access to websites where copyright infringement takes place as far as they are precisely identified (ECJ 24 November 2011, SABAM c/ Scarlet Extended SA, C70/10) • Proof of the infringement • Communication to the ISPs of the URL (limited list) : no general injunction worth for the futur miror websites • New authorisation of the tribunal will then be required • Pirate Bay was dismentled after a raid of the Sdwedish police but few hours after contents were available on a miror site in Costa Rica The Pirate Bay case : Access Providers • Article L. 336-2 du Code de la Propriété Intellectuelle • Tribunal de Grande Instance de Paris (TGI) 4 Decembre 2014 • Blocking Domain names • Less costly • Cost shall not be at the charge of the ISPs (16 February 2012 Sabam c/ Netlog) in order to be consistent with article 3§1 of the 2004/48 Enforcement directive,

The Pirate Bay case : Access providers Allostreaming

Allostreaming • TGI Paris 28 Novembre 2013 • Same claim of the rightholders to all ISPs as to blocking the access of the websites related to Allostreaming. • ISPs were forced to block the access

• Court of Appeal 16 March 2016 • Article L.336-2 CPI (and 8§3 Infosoc) doesn’t distinguish between different sorts of intermediairies : • Quoting point 25 ECJ UPC Telekabel Wien GmbH 27 March 2014 • Search engines are covered • By linking, search engines on the internet –which do not only have a mere function of neutral indexing and reference - contribute effectively, as the access service provider, to the transmission in a network of infringement made by a third party of a protected work, which corresponds to the definition of the term « intermediairy » as mentioned in the whereas 59 of the directive

Allostreaming case : Access providers and Search engines

Allostreaming (CA)

• Article L.336-2 CPI provides for a specific action for ceasing infringement to copyright independant from the civil liability of the direct responsable of the infringement • Not necessary to involve the direct responsable of the infringement to trigger article L. 336-2 CPI • De-ranking has proved to be efficient and neither the Constitutional Council nor the ECJ (In the Telekabel decision) require that measures of protection of copyirght and neighbouring rights have an absolute efficiency, the intellectual property law not being intangible (???) • Extra-territoriality of the measures ? • Argument raised by defendant asking that the measure only applies to the French extension of the serch engine, yahoo.fr ; bing.fr • According to the interpretation of article 5, point 3, of Regulation (CE) no 44/2001 du Conseil, du 22 December 2000, made by the ECJ in the Pickney Case, 3 October 2013 : points 42 et 43 of Pickney held that this article does not require the activity to be directed towards the Member State of the seised judge • « As regards the alleged infringement of economic right of the author, jurisdiction is sufficiently established whenever there is a risk that the harmful event may (be) materialised in the territory of the judge seised of the proceedings. » • French judge does not exceed its jurisdiction when ordering a measure applicable to all extension because every internet user is identified thanks to its IP address, so that search engine can limit the de-listing measure of a site to the internet user making a request from the French territory or its overseas departments. • Cost of the measures incumbent to the intermediaries : not an unbearable sacrifice (pt 53 Telekabel) and no threat for their economic viablity

Allostreaming case : Access providers and Search engines

Allostreaming • la Cour de justice de l’Union européenne a dit pour droit dans son arrêt “L’article 5, point 3, du règlement (CE) no 44/2001 du Conseil, du 22 décembre 2000, concernant la compétence judiciaire, la reconnaissance et l’exécution de décisions en matire civile et commerciale, doit être interprété en ce sens que, en cas d’atteinte alléguée aux droits patrimoniaux d’auteur garantis par l’État membre de la juridiction saisie, celle-ci est compétente pour connaitre d’une action en responsabilité introduite par l’auteur d’une œuvre à l’encontre d’une société établie dans un autre État membre et ayant, dans celui-ci, reproduit ladite œuvre sur un support matériel qui est ensuite vendu par des sociétés établies dans un troisième État membre, par l’intermédiaire d’un site Internet accessible également dans le ressort de la juridiction saisie. Cette juridiction n’est compétente que pour connaitre du seul dommage causé sur le territoire de l’État membre dont elle relève.”

Allostreaming case : Access providers and Search engines

• Back to the upstream method by involving intermediaries • in odrer to dry up the illegal websites incomes (payment, advertising) : « follow the money » MOU • Black-listing of the pirates (with the cooperation of search engines) • Increase the efficiency of finger printing technologies • Generalize Take down and stay down ? • Closing Mirors websites

New priorities for public policy ? • OPINION OF ADVOCATE GENERAL WATHELET 7 April 2016, Case C-160/15 GS Media.

• 1) Article 3(1) of Directive 2001/29/EC must be interpreted as meaning that the posting on a website of a hyperlink to another website on which works protected by copyright are freely accessible to the public without the authorisation of the copyright holder does not constitute an act of communication to the public, as referred to in that provision. • 2) Article 3(1) of Directive 2001/29 must be interpreted as meaning that it is not important whether the person who posts on a website a hyperlink to another website on which works protected by copyright are freely accessible to the public is or ought to be aware that the copyright holder has not authorised the placement of the works in question on that other website or that, in addition, those works had not previously been made available to the public with the copyright holder’s consent. • 3) Article 3(1) of Directive 2001/29 must be interpreted as meaning that a hyperlink to another website on which works protected by copyright are freely accessible to the public, which facilitates or simplifies users’ access to the works in question, does not constitute a ‘communication to the public’ within the meaning of that provision.

Future European framework ? OPINION OF ADVOCATE SZPUNAR, 16 March 2016, Case C-484/14 Tobias Mc Fadden

• 1. Articles 2(a) and (b) and 12(1) of Directive 2000/31/EC must be interpreted as applying to a person who, as an adjunct to his principal economic activity, operates a local wireless network with Internet access that is accessible to the public free of charge. • 2. Article 12(1) of Directive 2000/31 precludes the making of any order against a provider of mere conduit services that entails a finding of civil liability against that service provider. That provision therefore precludes the making of an order against a provider of such services not only for the payment of damages, but also for the payment of the costs of giving formal notice or other costs relating to an infringement of copyright or a related right committed by a third party as a result of the information transmitted.

Future European framework ? OPINION OF ADVOCATE SZPUNAR, 16 March 2016, Case C-484/14 Tobias Mc Fadden

• 3. Article 12(1) and (3) of Directive 2000/31 does not preclude the granting of a court injunction non-compliance with which is punishable by a fine. • National courts must, when issuing such an injunction, ensure: • – that the measures in question comply with Article 3 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights and, in particular, are effective, proportionate and dissuasive; • – that, in accordance with Articles 12(3) and 15(1) of Directive 2000/31, they are aimed at bringing a specific infringement to an end or preventing a specific infringement and do not entail a general obligation to monitor, and • – that the application of those provisions, and of other detailed procedures laid down in national law, achieves a fair balance between the applicable fundamental rights, in particular, those protected by Articles 11 and 16 of the Charter of Fundament Rights of the European Union and by Article 17(2) of that Charter.

Future European framework ? OPINION OF ADVOCATE SZPUNAR, 16 March 2016, Case C-484/14 Tobias Mc Fadden

• 4. Articles 12(3) and 15(1) of Directive 2000/31, interpreted in the light of the requirements stemming from the protection of the applicable fundamental rights, do not, in principle, preclude the issuing of an injunction which leaves it to the addressee thereof to decide what specific measures should be taken. It nevertheless falls to the national court hearing an application for an injunction to ensure that appropriate measures do indeed exist that are consistent with the restrictions imposed by EU law. • Those provisions preclude the issuing of an injunction against a person who operates a local wireless network with Internet access that is accessible to the public, as an adjunct to his principal economic activity, where the addressee of the injunction is able to comply with it only by: • – terminating the Internet connection, or • – password-protecting the Internet connection, or • – examining all communications transmitted through it in order to ascertain whether the copyright-protected work in question is unlawfully transmitted again.

Future European framework ? OPINION OF ADVOCATE GENERAL WATHELET 7 April 2016, Case C-160/15 GS Media.

Future European framework ? ANNEX Article L336-2

Modifié par LOI n°2009-669 du 12 juin 2009 - art. 10 En présence d'une atteinte à un droit d'auteur ou à un droit voisin occasionnée par le contenu d'un service de communication au public en ligne, le tribunal de grande instance, statuant le cas échéant en la forme des référés, peut ordonner à la demande des titulaires de droits sur les œuvres et objets protégés, de leurs ayants droit, des sociétés de perception et de répartition des droits visées à l'article L. 321-1 ou des organismes de défense professionnelle visés à l'article L. 331-1, toutes mesures propres à prévenir ou à faire cesser une telle atteinte à un droit d'auteur ou un droit voisin, à l'encontre de toute personne susceptible de contribuer à y remédier