Discours et communiqués de presse

Five false ideas about the government bill “Creation and Internet”

1. Electronic communications "put under surveillance”

The High Authority with responsibility for guarding against and fighting internet piracy will not undertake any widespread or systematic surveillance of internet users’ networks, not more in any case than the internet service providers. As is already the case now, all procedures will initiate from a one-off observance for a particular work of an illegal download.

The works, and they alone, will be “under surveillance” by their owners, and it is the observance of them being pirated, within the framework of the protocols authorised by the National commission for data processing and freedoms which may give rise to the sending out of warnings and possibly a temporary suspension of Internet access.

2. The “criminalisation” of internet users

The bill on the contrary seeks to turn the copyright holders and the internet users away from the criminal justice route.

At the moment, the only recourse open to companies and artists whose works are pirated consists in taking the case to court for infringement of copyright. The internet user is thus exposed to charges against him in the criminal court with a possible penalty at the first illegal download. The punishments ordered by the courts against those found guilty of piracy are fines of several thousand euros, sometimes accompanied by suspended prison sentences.

Henceforward, the fight will be mainly educational since two warnings will precede any penalty; the second warning will be sent by registered letter so that the internet subscriber is well aware of the disregard of the law of which he is accused. The Government project must be effective during this preventive phase: an IPSOS survey carried out in France in May 2008 and research of the same type in the United Kingdom in March 2008 reveal that 90% of the people asked would stop illegal downloading after two warnings.

Resorting to court action will remain possible, but it will be of a complementary nature to the new mechanism: this will be used for dealing with large-scale fraudsters, those who undertake piracy for personal enrichment or those who develop techniques aimed at enabling piracy.

3. An attack on basic freedoms

On the contrary, the bill aims to restore the currently broken balance between two series of basic rights, which must necessarily be reconciled: copyright and the moral right of the artists over their works on the one hand and the right of internet users to have their private life respected on the other hand.


This balance between the rights and freedoms of everyone is at the very heart of the Declaration of Rights of Man and the Citizen of 1789 and notably article 4 of this: “Liberty consists in the freedom to do everything which injures no one else : hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights.”

The need for such a balance between the artists’ rights and the respect for the private life of the internet users has recently been emphasised at the European level by the Court of Justice of the European Communities, in a judgement of January 2008 known as Promusicae.

Furthermore, the temporary suspension of internet access does not in itself infringe any basic freedom: this is a measure already commonly ordered by the judge.

Finally, the infringement of the internet users’ private lives through the fight against piracy does not raise any constitutional obstacle nor any problem at the European level as it comes both with multiple guarantees and is in proportion with the aims of a constitutional status which are being sought:

- The mechanism will be implemented by an independent administrative authority which alone will be able to receive personal data about the subscriber, from the internet service providers, – name and contact details – strictly necessary for the sending of warning messages. This High Authority, which is an intermediary between the two opposing parties, highlights the originality of the "French approach", which better protects private life than measures taken in other countries where the internet users are directly confronted with the copyright holders or the internet service providers.

- Central to this High Authority is a commission offering all the guarantees of impartiality and independence and which will deal with the cases: it will be composed exclusively of senior judges and will use the services of civil servants whose lack of links with the economic interests at stake will have been checked during enquiries carried out prior to their recruitment.

- The situation in which the mechanism is entrusted to an independent administrative authority and not to a judge does not come up against any legal obstacle. The Constitutional council has confirmed, several times, the possibility of a non-judicial authority dealing with personal data, provided that the procedure followed is within a framework set out by the lawmakers and that it seeks to ensure the respect of other constitutional requirements – which is precisely the case here. The Constitutional council has, for example, considered that the improvement in the quality of health care and the reduction in the financial imbalance of the health insurance system justified the setting up of the personal medical file, directly implemented by a government administration.

- The bill does not allow the gathering of any new information about internet users. All the required data for implementing the prevention mechanism managed by the High Authority are those which are already used by the artists and cultural businesses for taking legal action. This gathering of information is done according to methods authorised by the National Commission for data processing and freedoms. Simply the judge will no longer be the only possible recipient of observations thus made: the High Authority will also be competent to use them in order to implement the prevention mechanism created by the law.

In any event, the Council of State and the Constitutional council would not fail to guard against or censure any infringement of freedoms committed by the Government or by the lawmakers. The Council of State has just reached a favourable decision to the bill of 12th June last.


4. The project is “contrary to Europe”

The position taken by the European Parliament on 10th 2008 against the suspension of internet access is evidently ill founded. The “Bono amendment” vote was won by a very narrow margin (314 votes against 297) and heterogeneous, regarding a report on the cultural industries with no legal force. Especially, the discussion prior to its adoption show that the members of the European parliament were not truly informed about the French mechanism, rightly so: the bill had not yet been finalised nor even registered with the Council of State. In this context, the author of the amendment advanced three arguments: the “criminalisation of internet users”, the “widespread surveillance of the networks” and the infringement of freedoms: on these three subjects refer to the development of points 1,2 and 3 above.

Moreover, the European Parliament meanwhile took the opposite view to the motion of 10th April last since the Culture commission which examined, last 2nd June, two amendments to the "Telecom Package" the tenor of which was identical, rejected them by a very wide majority.

Conversely, the “French approach” has aroused strong interest from several Member states. An initial discussion, organised last 21st May during the European Union Council in its "Culture and Audio-visual" configuration resulted in many very favourable reactions being gathered. For its part, the Commission presented a communication on this subject on 3rd January 2008 which it plans to follow up with a recommendation to the Member states.

5. “Widespread filtering of the networks”

The bill does not provide for anything of the sort. The possible dissemination of filtering techniques must be subject, under the terms of the Elysée agreements of 23rd November 2007, to a trial period made in good faith over two years, between those involved in Culture and those in the Internet. There is no place therefore for the public authorities to intervene on this point, provided the parties respect this commitment.

In the “Creation and Internet” bill, only the measures that a judge can already take are broached, in a one-off way, on a case by case basis, to stop or guard against a recurrence of the harm caused to literary or artistic copyright by an on line communication service. These measures, set out in point 4 of article L. 332-1 of the intellectual property code can be in the form of a withdrawal or suspension of the protected work, or filtering access to the communication service. The Elysée agreement sets out the principle of the transfer, to the High Authority, of the competence for taking these measures.

However, it emerged that the sought-after objective, namely, enabling the necessary decisions to be taken quickly and efficiently – could be reached by being limited to improving the procedure provided for before a judge. This is what the bill does, by replacing the current set-up – injunctive relief, i.e. a decision made without proper hearing of both parties, accompanied by the obligation to bring the case before the court in a short time – by a procedure in the form of applications for interim measures, fast but with a hearing of both parties. These provisions will be supplemented by the decrees which are imminent, reforming the distribution of courts in France which will allow disputes over literary and artistic copyright to be concentrated and dealt with by a limited number of specialised courts.