On May 13 2013 Pierre Lescure submitted his report to the French Minister for Culture and Communication entitled “Act II of the cultural exception” regarding “digital content and cultural policy in the digital era.”
The report contains 80 proposals for adapting the cultural economy to the digital era. In particular it recommends the removal of the HADOPI (French Authority for the diffusion of creative work and the protection of owners’ rights on the Internet), conferring its repressive missions to the Conseil Supérieur de l’Audiovisuel (CSA), and recommends maintaining the Graduated Response whilst modifying the types of sanctions imposed.
The regime introduced by the HADOPI law (1)
To recap, the HADOPI legislation introduced a mechanism for a graduated response to combat illegal exchanges of creative works protected by copyright or associated law.
The graduated response mechanism involves sending a warning message to any internet site owners who fails in their duty to monitor appropriate internet access. In the case of a repeat offense, the second stage consists of sending a warning by e-mail, in addition to a letter sent by recorded delivery. In the event of further breaches, sites owners are notified that they risk legal action. In such cases, the maximum sanction applicable is a fine of €1,500 for an individual. The judge can also impose an additional penalty by banning access to the Internet for a maximum period of one month.
The regime advocated by the Lescure Report
The Lescure Report recommends transferring responsibility from HADOPI to CSA whilst maintaining the Graduated Response mechanism.
As regards sanctions, the Report recommends abandoning the measures for temporary Internet suspension and also proposes replacing the fine imposed by an ordinary court by a relatively small administrative fine of €60.
Opposition to the Lescure Report
The Report has met with a variety of objections. On the one hand, the project is highly likely to meet with parliamentary opposition since certain Socialist mp’s, especially Patrick Bloche, vehemently oppose it.
On the other hand, proposals included in the Report are in danger of being blocked by the Constitutional Council. Previously, the possibility of an administrative fine had already been raised during debates on the HADOPI law in 2009, but abandoned in favor of a court fine. The Constitutional Council had opined that the Graduated Response system could only be applied by the judiciary, which led to the system currently in place. In particular, the Council was of the opinion that there could be no removal of Internet access without a judge’s decision. Since the Lescure Report advocates abandoning the measures for temporary Internet suspension, it would no longer be necessary to go before a judge and the graduated response could be ratified by an administrative fine. However, there is no guarantee that the Council will rule that conferring sanctions to an administrative authority is constitutional.
In addition, the CSA has openly stated that they do not wish to impose fines themselves, preferring to leave that to the judges. Olivier Schrameck, president of the CSA, made the following statement to the Association of Journalists (AJM): “I will not turn up wearing a kepi. And I am not asking for the right to apply sanctions. Absolutely not.”
To be followed…
(1) Law no 2009-669 of June 12 2009 promoting the distribution and the protection of original works on Internet.