What Is Hadopi? and Why Does It Matter?

Yesterday, my partner Anne-Sylvie Vassenaix-Paxton gave a talk to ALAI Canada (L’Association Littéraire et Artistique Internationale) on the impact the new French HADOPI laws no. 1 and 2, have had on peer to peer file sharing and protection of personal data under French law.

The acronym stands for the Haute Autorité pour la Diffusion des Oeuvres et la Protection des Droits sur Internet (HADOPI), a body which co-ordinates a variety of legal measures against illegal downloading including sanctions against parents of downloaders.

Two points are interesting from a North American perspective. The French Constitutional Council threw out a draft of the law on the basis that it did not sufficiently respect the privacy rights of users, and secondly the immediate resort to penal sanctions. This may be soft law, but with heavy enforcement. It is frankly doubtful which other countries would follow this policy direction.

Here are Anne-Sylvie’s slide points – even PowerPoint tells a story:

Introduction
Internet piracy was on the rise in France

Estimated impact of piracy on the entertainment sector as a whole in 2007 (report by the French National Assembly):

€1.2 billion
€605m € for the video production
€369m for the music industry
€147m for the book industry
loss of approximately 5,000 jobs
2,400 lost jobs for the video production industry
1,600 lost for the music industry
750 lost for the book industry

Massive illegal downloading over peer-to-peer sharing networks – Napster, MegaUpload, etc.

Legal framework before Hadopi laws was strong but mostly ineffective

Criminal penalties incurred for copyright infringement under article L. 335-2 of the French Intellectual Property Code (IPC))

€300,000 fine

3 years imprisonment

Criminal proceedings and associated penalties were disproportionate when applied to mass illegal downloading

Legislative background to Hadopi laws

two objectives

To put an end to the illegal peer-to-peer sharing of creative works over the Internet
To encourage the development of legal content available for download

September 2007

Launch of a consultation process between (i) professionals in the music, film and media industries and (ii) Internet Service Providers (ISP)
Drafting of the « Olivennes report »

The outcome

The “Elysee Agreement” (November 23, 2007)
List of measures for the development and protection of creative works and cultural programmes on the new networks

1. Hadopi #1 or the « law promoting the distribution and protection of creative works on the Internet »
A controversial bill partly censored by the Constitutional Council (Conseil constitutionnel)

Inspired by the Olivennes report

Creation of a new independent administrative body

“The High Authority for the Dissemination of Works and the Protection of Rights on the Internet” (Haute Autorité pour la Diffusion des Oeuvres et la Protection des Droits sur Internet (HADOPI))

Intended to deal with the protection of online works of arts
Has the power to recommend legislative and/or regulatory changes
May be consulted by the government when drafting bills and/or decrees involving the protection of literary and artistic works

I. Hadopi #1 or the « law promoting the distribution and protection of creative works on the Internet »
New anti-piracy scheme

“The progressive response” or “three strikes and you’re out”

Progressive warning procedure for Internet users who have engaged in illegal online file-sharing

(i) 1st strike: e-mail message to the Internet user

(ii) 2nd strike: registered letter with return receipt requested sent to the Internet user

(iii) 3rd strike: suspension of Internet access for a 3 to 12 months period
I. Hadopi #1 or the « law promoting the distribution and protection of creative works on the Internet »
Annulment by the French Constitutional Council of the repressive provisions of the “progressive response” (decision of June 10, 2009)

Disproportionate infringement of the freedom of expression and communication (Article 11 of the French Human Rights Declaration)

Only a judicial authority can suspend Internet access, not an administrative body as freedom of speech implies access to online communication services
Need to distinguish the warning phase (HADOPI) and the sanctions (Criminal Courts)

Infringement of the presumption of innocence

Burden of proof should not lie on the Internet subscriber who should not be required to demonstrate that he is not responsible for the alleged piracy

(iii) Infringement of Internet subscribers’ privacy rights

Warnings issued on the basis of personal data collected and processed by sworn agents (representing copyright holders). The transmission of personal data to HADOPI is an unwarranted infringement of Internet subscribers’ privacy rights

I. Hadopi #1 or the « law promoting the distribution and protection of creative works on the Internet »
The main measures of the amended version of the Hadopi #1 law

Law of educational value (enacted June 12, 2009)

Objectives given to the HADOPI authority (articles L. 331-12 et seq. IPC)

the « encouragement of the development of the legal offer on the Internet »
the « protection of works to which a copyright or related right is attached against any infringement »
the « regulation of the uses of the technical measures of protection and information »

Implement the preliminary phase of the so-called “progressive response” (warnings)

I. Hadopi #1 or the « law promoting the distribution and protection of creative works on the Internet »
The warning phase

Investigations by the HAPODI through sworn and accredited agents responsible for:
collecting from ISPs the identity, postal address, e-mail address and phone numbers of the Internet subscriber
and distribution of rights societies
industry defence bodies

HADOPI’s sworn and accredited agents are appointed by:
industry rights defense organizations
rights distribution societies
National Cinema Center (Centre national de la Cinématographie)

The Authority, through its Rights Protection Committee (RPC), composed of three magistrates, examines the facts and, if appropriate, warns the Internet subscribers

I. Hadopi #1 or the « law promoting the distribution and protection of creative works on the Internet »
Warnings procedure (article L. 331-25 of the IPC)
First warning
by email
Second warning
by email and by registered letter with return receipt requested
in case of repeated acts constituting a breach,
6 months after sending the first warning

Warnings’ content (identical for both warnings)
Information relating to:
The Internet’s subscriber’s duty to monitor his Internet access, to ensure that it is not used for any copyright infringement (article L.336-3 of the IPC)
the existence of securitization measures to prevent a breach of this duty
the penalties incurred
the legal offer of online cultural content

I. Hadopi #1 or the « law promoting the distribution and protection of creative works on the Internet »
Involvement of the Courts (article L. 336-2 of the IPC)

Competent jurisdiction
The Court of First Instance (“Tribunal de Grande Instance”)

Power
To order any measures likely to prevent or terminate any copyright infringement

Request can be made by:
rightholders
rights collection and distribution societies
industry defense bodies

I. Hadopi #1 or the « law promoting the distribution and protection of creative works on the Internet »
Conditions of referral to the HADOPI (article R. 331-35 of the IPC; decree dated March 5, 2010)

List of bodies which can make referrals to the RPC via their sworn agents (L. 331-24 IPC):
Industry defense bodies
rights collection and distribution societies
the Centre national de la cinématographie

An individual rights holder cannot make a claim directly to the HADOPI

The RPC may also act based on the basis of information provided by the Prosecutor’s Office

To be admissible, referrals made to the RPC must provide information on the acts likely to constitute a breach (date and time of the acts), the IP address of the Internet subscriber concerned, etc.

I. Hadopi #1 or the « law promoting the distribution and protection of creative works on the Internet »
Referral should be accompanied by:
a “sworn declaration that the author of the referral has standing to act in the name of the holder of the rights over the protected work or materials concerned“ (article R. 331-35 of the IPC)

Referrals cannot be made based on acts dating back more than 6 months

Upon receipt of the referral, the RPC will acknowledge receipt by electronic mail
If the referral is not processed within 2 months from that, the HADOPI is required to delete the personal data provided with the referral

I. Hadopi #1 or the « law promoting the distribution and protection of creative works on the Internet »

New obligations for ISPs

Duty to inform Internet subscribers (in their subscription contract):

of their duty to monitor their internet access
of the measures that can be taken by the RPC
of the civil and criminal sanctions incurred in case of copyright infringement
of the existence of security means to prevent a breach of their duty to monitor

Duty to communicate contact information of alleged infringers (names, postal adresses, e-mail addresses, etc.) (decree of July 26, 2010)

to members of the RPC
in case of alleged copyright infringement

I. Hadopi #1 or the « law promoting the distribution and protection of creative works on the Internet »
Promotion of legal content available for download over the Internet

Creation of a legal framework for online editors

Creation of a « Music Card » (Decree of October 25, 2010)
card specially dedicated to young people aged between 12 and 25
can purchase 50 euros worth of music for half price by choosing from a list of platforms and online services associated with the project
government subsidized card

Shortening of media release windows
After a theatrical release, a movie should be available:
on Video (DVD / video on demand): 4 months later
On pay TV: 10 months later
On free television: 22 months later

II. Hadopi #2 or « the law for the criminal protection of artistic and literary works on the Internet »
Enactement of a new statute (Hadopi II) (October 28, 2009)

As a result of and in response to the decision of the Conseil constitutionnel

Implementation of the repressive provisions of the « graduated response » mechanism (i.e suspension of internet access)

Delegation of the sanctionning power to a judicial authority rather than an administrative body

Balance between education and repression

Preventive and repressive measures adapted to the specific handling of a massive phenomenon of unlawful downloading over the Internet

II. Hadopi #2 or « the law for the protection of artistic and literary works on the internet under criminal law»
New additional penality: suspension of internet access

Article L. 335-7 of IPC
Copyright infringement is punishable by a « suspension of access to a public communication service for a maximum period of one year »

May be imposed only by Criminal Courts taking into account:

the circumstances and the seriousness of the offenses
the personality of the perpetrator, his professional activity and his socio-economic situation

Possibility in some cases to impose the additional penalty as the main penalty

Internet subscribers must continue to pay their subscription to the ISP during the suspension period

II. Hadopi #2 or « the criminal law for the protection of artistic and literary works on the Internet »

Tortious cases (Article L. 335-7-1 of the IPC)

In addition to the penalties already incurred for copyright infringement:
€300,000 fine
3 years imprisonment
Suspension of Internet access for up to 1 year

Criminal Courts Courts have significant leeway in assessing the tortuous act which has been committed and the quantum of damages

II. Hadopi #2 or « the criminal law for the protection of artistic and literary works on the Internet »
Misdemeanour cases (Article L. 335-7 of the IPC; Article R. 335-5 of the IPC)

New 5th class misdemeanour (contravention de 5ème classe):
€1,500 fine
suspension of Internet access for up to 1 month

Punishement for characterized negligence in connection with illegal dowloading

Penalty associated to the duty to monitor Internet access :

the person holding the access to public online communication services finds himself “without legitimate cause” in one of the following two situations:

“has failed to put in place means of securing such access” or
“has failed to use diligence in implementing these means”.

Passive behaviour of the Internet user who has not himself committed an act of unlawful dowloading

II. Hadopi #2 or « the criminal law for the protection of artistic and literary works on the internet »
Procedures leading to the penalty being imposed

New judicial police functions of the RPC (Article L. 331-21-1 of IPC)
to identify the facts likely to constitute a copyright infringement
to obtain observations of the alleged infringers in writing or at a hearing
(but no coercive power to summon)

Transmission to the Prosecutor’s Office of the files

Additional investigations by the Prosecutor’s Office possible but the Prosecutor’s Office is encouraged to decide whether to prosecute on the sole basis of the elements provided by the RPC

II. Hadopi #2 or « the criminal law for the protection of artistic and literary works on the Internet »
Suspension on a misdemeanour basis

Warnings sent but despite such warnings, the offender has not installed means to secure his Internet access

PRC members will decide if the facts contained in the file constitute the offense of characterized negligence, in which case they will refer the file to the Prosecutor’s Office

If the Prosecutor’s Office prosecutes the Internet subscriber, the Police Court (“Tribunal de Police”) will be responsible for determining whether the offense has indeed been committed
II. Hadopi #2 or « the criminal law for the protection of artistic and literary works on the Internet »

2) Suspension on a tortious basis

Introduction of simplified and quicker proceedings
ensuring the speed of the criminal response

Prominent role of the evidence collected by the RPC

The Court cannot impose a prison sentence in this type of simplified proceedings
Maximum penalty: € 300,000 fine and suspension of Internet access for a period of 1 year

II. Hadopi #2 or « the criminal law for the protection of artistic and literary works on the Internet »
Copyright offense may be heard by a « tribunal correctionnel » sitting in a single-judge formation

Before: only collegiate formation

Article 398-1 of the French Criminal Procedure Code (CPC)

Decision on the basis of the evidence produced by the Prosecutor’s Office, without the defendant appearing in court

II. Hadopi #2 or « the criminal law for the protection of artistic and literary works on the Internet »
ii. Copyright offense can be prosecuted under the ex-parte summary judgment procedure (« ordonnance pénale »)

Article 495-1 (2) of the CPC: “The President shall adjudicate without prior debate through a criminal order in summary judgment imposing dismissal or a fine as well as, if applicable, one or more additional penalties”

No due hearing of the defendant

Becomes res judicata if the defendant, on whom the order has been notified, does not oppose it within a period of 45 days

II. Hadopi #2 or « the law for the protection of artistic and literary works on the internet under criminal law»
Implementation of the Internet access suspension penalty and control thereof by the HADOPI

Prominent role of the RPC

Informed and a recipient of all enforceable decisions including an Internet access suspension penalty (Articles R. 331-44 and R. 331-45 of the IPC)
Responsible for implementing such penalties and ensuring due compliance

RPC will inform the “person whose activity it is to provide access to public online communication services of the suspension penalty imposed against its subscriber” (Article R. 331-46of the IPC)

In turn, the ISP will inform the RPC of the “date when the suspension period began”
(Article R. 331-46 of the IPC)

II. Hadopi #2 or « the criminal law for the protection of artistic and literary works on the Internet »
Failure to comply for the ISP with the suspension decision

Punishable by a €5,000 fine

Non-compliance with the injunction not to take out a new Internet subscription

Tortious basis

Punishable by a €30,000 fine and 2 years imprisonment (Article 434-1 of the French Criminal Code)

ii. Misdemeanour basis

Punishable by a €3, 750 fine (Article L. 335-7-1 of the IPC)

Conclusion

Studies show a clear downward trend in illegal peer-to-peer downloads
Drop of approximately 43% in the illegal sharing of works on peer-to-peer networks in France over the year 2011(study by Peer Media Technologies)

No indication that there has been a massive transfer to streaming technologies

Too early to assess the impact of MegaUpload shutdown in January 2012

At the same time, a wide range of legal content offers has been made available

Dissuasive effect of the progressive response process:

95% of those having received a first-time notice do not need to be sent a second notice for illegal behaviour on peer-to-peer networks
71% of peer-to-peer users surveyed indicate that they would stop downloading ilegal content if they received a warning from the HADOPI

After 18 months in operationg, the HADOPI has:
Sent 1,150,000 e-mails as first warnings
Sent 105,000 registered letters as second warnings
Submitted 340 cases to the PRC
Transferred 14 files to the Prosecutor’s Office for prosecution.

In September 2012, for the first time, a Criminal Court ordered an Internet user to pas as a deferred sentence a € 150 fine for not securing his Internet access

One of the future tasks for the HADOPI is to
Set forth measures for better copyright protection in light of an increasing number of “streaming” sites or direct downloading