Discours (en anglais) de la ministre au sommet mondial du droit d'auteur à Washington, lu par l'ambassadeur de France.
lundi 22 juin 2009
Ladies and Gentlemen,
First of all, allow me to express my regret at not being with you today, at this second World Copyright Summit. Unfortunately, last-minute circumstances—directly related to the topic of my speech today—require that I remain in Paris.
However, I still wish to underline the importance of this Summit, and the relevance of the issues that will be debated here: in the digital age, what changes will we be seeing in the way culture is created, broadcast and accessed? How will creators be remunerated for their work? How can we facilitate the distribution of their works? What role can the authorities play in supporting the transition towards new models? All of these concerns bear witness to the fact that respect for copyright on digital networks is at the heart of many social issues.
Internet is a wonderful opportunity for culture. It is the distribution vector of the future, the channel by which we already have access to millions of pieces of music, to thousands of films and, increasingly, to literature, to virtually visit museums or exhibits, and to entertainment.
We love the Internet and we want to develop this unique instrument for sharing knowledge and culture in all its forms.
Still, this development requires rules.
I am firmly convinced that the digital environment is not exempt from the elementary principles that govern life in society. There is no “virtual world” in which collective restrictions have been abolished, where the brutal affirmation of oneself can be imposed with impunity to the detriment of others. There is just one “world”, which is governed by the same rules, and Internet is not, and cannot be, a lawless frontier.
For this reason, the fight against piracy is a modern cause. Those who would defend the law of the survival of the fittest, of setting the fox loose in the henhouse, those who believe that Internet must remain an anarchic jungle, are living in the wrong times.
Piracy is a childish disease of the Internet that must now grow up, and take responsibility.
These people have not understood that citizens expect authorities to assume their responsibility to protect everyone’s rights, including the rights of creators. The vast majority of citizens know full well that all work—including artistic work—deserves a wage, and that intellectual property rights are our only means of financing innovation and renewal in creation.
Therefore, it is up to the authorities, by establishing a suitable legal framework, to ensure that the legal supply of culture is able to develop on the Internet in all its fullness and diversity. This requires putting an end to the unfair competition of piracy.
Furthermore, we can no longer justify or excuse piracy by saying that works are not available legally, because remarkable progress has been made. Cultural industries have made great progress in their digital revolution. Thousands of films and millions of pieces of music are now available on line. If illegal downloading continues, the diversity of this offering will be threatened, and the new economic models needed to share culture on the Internet, which are still so fragile, cannot be stabilized.
For years, we have wondered whether mass piracy represented a true threat to the renewal of creation and for all facets of cultural industries. Today, we are no longer at the worrying stage; we are now forced to face the facts. And they are overwhelming: we are living in a time of true economic and cultural disaster.
Allow me to mention a few French figures. The recorded music market is the hardest hit, with a 50% drop in value over the past five years. Naturally, the first victims are “independent labels”, the smallest companies that, today, offer 80% of musical references to the public. Film is sliding down the same slope, with the number of illegal downloads equal to theater ticket sales. Our video market has lost one-quarter of its value. As for books, this sector is now also about to enter the digital age. It is my duty to take preventive measures to ensure that this business does not also suffer the ravages of piracy.
These effects are even more unacceptable because piracy is also an “economy”: a parasitic economy that promotes the audience of pirate sites to unscrupulous advertisers.
So, it is urgent that we find our way out of this situation, which is so dramatic for creators and cultural industries, but which is also damaging in the long term for the public who will see the renewal and diversity of works gradually decline, due to a lack of financing.
The Creation and Internet Law, which I was honored to present to the French Parliament, proposes an ambitious yet realistic solution to this problem.
This law is ambitious, because it aims to take advantage of the brand-new opportunity the Internet represents for culture: for its democratization, first of all, but also to take advantage of the cultural industries’ potential for economic development.
But this law is also realistic, because it does not purport to completely eradicate this massive social phenomenon which is the piracy of cultural works on the Internet. It aims, rather, to work towards a greater awareness, the establishment of a new attitude on the part of Internet users: to respect cultural diversity and, consequently, to accept the economic and legal conditions that are needed to protect and finance it.
The method I followed is based on the conviction that, to be effective, the solutions implemented must first have received a broad consensus from cultural and Internet players. This is what I asked Denis Olivennes to work towards, in September 2007.
The result of his mission is a historic agreement signed at the Élysée Palace on November 23rd, 2007, by 47 organizations representing creators and companies from the music, film, television and Internet industries, including every single French ISP.
The parties agreed on a plan with two inseparable parts, which are found in the Creation and Internet Law that was approved by Parliament on May 13th.
The first part involves making the legal offering even more attractive to the public. To do this, recording companies agreed to remove DRM "blocking" from French works. For film, the entire industry has agreed to significantly reduce the time between film releases in theaters and their availability to the public on DVD and VOD (video on demand).
The second part of the Élysée agreement covers the fight against mass piracy. Cultural and Internet players wanted to change the logic of this fight. The new approach is preventive and graduated, since no sanctions will be applied for the first act of piracy. It also aims to “decriminalize” illegal downloads, because sanctions will no longer be issued by a judge, although they will be applied under a procedure that will offer the exact same guarantees as a legal procedure.
What is this measure in the second part of the bill, known as a “graduated response”?
The legal basis on which it is based is an obligation to supervise Internet access, which is the subscriber’s responsibility. This means that parents, who are the subscribers, may receive warnings about acts committed by their children. I believe that it is both natural and effective that parents teach their children to use Internet properly, and to respect copyright, in the home.
The “response” will take a form which will initially be purely preventive; then, it will take the form of a negotiation, and finally could result in a sanction. The mechanism will be applied by an independent agency, called the “High Authority”; and its sanction decisions can be appealed to a judge.
But concretely, what will happen to subscribers who illegally download content using their Internet access?
Today, in France, as in other countries, rights holders are responsible for identifying acts of piracy on the Internet. To do that, they collect pirates’ IP addresses on exchange networks. Then, based on these observations, they present their case to a judge.
With the Creation and Internet Law, rights holders who have collected IP addresses will have two choices: they can present a counterfeiting case to a judge, or call on the High Authority, citing the subscriber’s default of his or her supervision obligation.
The Creation and Internet Law’s goal is that the effectiveness of the pedagogical and graduated mechanism managed by the independent agency will dissuade rights holders from taking the legal route. The “graduated response” does not eliminate this route, but completes it. Indeed, because of their scope or the sophisticated means they use, the only appropriate response to certain acts of piracy, is a legal sanction or the payment of damages.
We, and all the parties to the Élysée agreement, believe that this quick and economical procedure before the High Authority will naturally impose itself in cases of “ordinary” piracy, which represent the vast majority of cases.
But, what, exactly, will be the High Authority’s role ?
It will send warnings to pirates to simply remind them of the law. These messages will take an increasingly formal tone: following an e-mail, the agency will send a second warning via registered mail. This will ensure that the subscriber is necessarily informed of the behavior he or she is being accused of.
In this way, an obligatory preventive phase will precede any sanction. We believe that this teaching and prevention aim is essential. Studies conducted in Great Britain and France in the spring of 2008 show that 70% of Internet users would stop illegal downloads at the first warning, and 90% with the second.
If the subscriber continues to default on his or her obligations, the High Authority could then apply a sanction in the form of suspended Internet access, generally for a period of between two months and one year. However, the agency could also offer the subscriber a deal (“transaction”): if he or she stops making illegal downloads, the suspension would be reduced to one to three months.
The subscription suspension would also include a ban on taking out a contract with any other ISP during the period, in order to prevent subscribers from “migrating” from one ISP to another. Indeed, it is fundamental that those ISPs that participate fully are not penalized with respect to more lax ones. For the same reasons, the High Authority could fine ISPs that do not apply a suspension it has ordered.
For companies whose employees have performed illegal downloads from their workstations, the law includes measures other than a suspension of Internet access: a dialogue must be established with the agency in order to put in place preventive measures, such as firewalls, which prevent piracy.
Naturally, all the sanctions are applied by the High Authority following contested proceedings, which respect the right to file a defense, and with the possibility of an appeal before a judge.
There was a lively discussion in the media and in public opinion when the law was debated in the French Parliament. A number of valid arguments were made, as were others which were less serious.
I would first like to mention the temporary suspension of Internet subscription that was chosen as a “final measure”.
This solution was chosen to clearly reflect our concern to decriminalize ordinary piracy; a fine would have rendered this message less clear. Next, the direct relationship between the behavior in question, i.e. inappropriate use of Internet, and the type of sanction, will reinforce the educational message of the sanction. Finally, the non-pecuniary nature of the sanction will avoid creating inequality between more affluent users (who could easily pay their fines, and thereby obtain a sort of "piracy license"), and the less wealthy general public.
Some saw the Internet suspension as an attack on their freedom of communication. This assertion requires that I make a number of comments.
The first is very simple: ISPs already include cancellation of an Internet subscription in their contracts with their subscribers, when subscribers do not pay their bills or when they use their subscription inappropriately. Obviously, no one maintains that ISPs are infringing on fundamental freedoms when they cut off Internet access to those who do not pay. And does suspending a subscription, in order to sanction the violation of creators’ property, really undermine human rights? Surely not!
I also need to point out the obvious: no Constitution or jurisdiction anywhere in the world has ever qualified home Internet access as a “fundamental freedom”. These words do have meaning.
In any case, even if we assumed that residential Internet access were now considered a fundamental freedom, no right is ever unconditional: it has to be reconciled with other freedoms and cannot be used to justify violating them with impunity.
None of this is new. We have known this in France ever since the Declaration of Human Rights in 1789, where Article 4 states: “Freedom consists in being able to do everything that does not harm anyone else: thus, the exercise of the natural rights of each human being is limited only by that which ensures that other members of society can enjoy these same rights”.
During the debates on the Creation and Internet Law, it was also said that the High Authority would violate privacy, and would be responsible for recording and spying on Internet users.
What a paradox! The very role of this agency is to reconcile the prevention of piracy with the protection of privacy, by interposing an impartial, independent authority holding confidential procedures, between Internet users, creators and ISPs.
Indeed, only the High Authority will be able to collect that personal data (name and address) which is required to send warnings to subscribers. The pirate's identity would therefore remain hidden from rights holders.
I would also add that the High Authority will be composed exclusively of judges, and will employ sworn public agents, who will be vetted to ensure there is no conflict of interest with the economic interests in question.
I come to a final objection: this law would be dictated by major record labels, determined to defend obsolete "privileges,” and it ignores creators’ real problems.
Those who make this claim must not have spoken with very many artists! The Creation and Internet Law has received the massive support of creators and of the film, music and Internet industries, both in France and around the world. And it was received most favorably by independent firms who are the first victims of piracy because they take the greatest risks by supporting young talents.
Actually, the real issue raised by this law is the following: do creators, like their fellow citizens, have the right to live off their work?
Beaumarchais, the famous playwright from the Age of Enlightenment, was also the founder of the first copyright administration society. Because he understood that it was through the property rights and moral rights protecting their works, that artists would finally be able to free themselves from their condition of lackey or courtier. And this is how he himself gained economic independence, and through that, the freedom to create.
When it comes to the Internet, are we willing to give up the fundamental rights we have defended for centuries? In a word: does technology dictate its rules to human societies, or do we require that it respect our most essential values?
The choice made through the Creation and Internet Law is clear: it is that of a society which does not sacrifice the protection it owes its artists (like all its members); it is the choice of a society that is loyal to the fights that have made it a State of Law.
I am very pleased that France is not alone in this struggle. For over a year now, in a growing number of countries, the worlds of culture and Internet are working together to block illegal downloads using graduated processes of warnings and sanctions, most often through contractual agreements, but also through the law.
Such agreements have already been signed in the UK, Ireland and Japan. Negotiations are underway in the Netherlands, Australia and Hong Kong. And laws have been adopted in South Korea, Taiwan and soon in Norway.
So, we are seeing true convergence in a very short time. We should be pleased because it strengthens the effectiveness of each nation’s measures.
I hope that this Summit, for which I congratulate the organisers once more, will be an opportunity to intensify this convergence even further, as we share our respective expectations and experiences.
Thank you for your attention.