Copyright Enforcement in the Digital Environment Focus on the French System Valérie Laure Benabou Prof. Université Versailles-Paris-Saclay • I. Specificity of on-line infringement • II. French answers and their efficiency I. Specificity of on- line 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