The document discusses two French laws, Hadopi #1 and #2, which established the High Authority for the Dissemination of Works and the Protection of Rights on the Internet (HADOPI) to address internet piracy through a three-strike warning system and allow for the suspension of internet access, with Hadopi #2 delegating sanctioning power to criminal courts.
Regulating Data: The Implications of Informatics on International LawJon Garon
Description: Because of the increasing ease of digitization, all information has the potential to be digitized and as such, all information is becoming part of a single, incomprehensibly large, multinational, multicultural data system. The resulting data ecosystem is subject to local regulation by state and national laws which have often been drafted to address a conflicting set of jurisdictional rules and normative expectations regarding the creation, ownership, collection, storage and dissemination of information. The laws vary from country to country, resisting efforts at bringing international harmony because of deeply rooted historical differences. The presentation is an overview of the steps necessary for developing a comprehensive informatics regulatory system that protects privacy, telecom policy and copyright.
Slide deck for brief presentation on intellectual property law, public policy, piracy, and modes of regulation in different industrial, cultural, and technological settings.
Regulating Data: The Implications of Informatics on International LawJon Garon
Description: Because of the increasing ease of digitization, all information has the potential to be digitized and as such, all information is becoming part of a single, incomprehensibly large, multinational, multicultural data system. The resulting data ecosystem is subject to local regulation by state and national laws which have often been drafted to address a conflicting set of jurisdictional rules and normative expectations regarding the creation, ownership, collection, storage and dissemination of information. The laws vary from country to country, resisting efforts at bringing international harmony because of deeply rooted historical differences. The presentation is an overview of the steps necessary for developing a comprehensive informatics regulatory system that protects privacy, telecom policy and copyright.
Slide deck for brief presentation on intellectual property law, public policy, piracy, and modes of regulation in different industrial, cultural, and technological settings.
Unit 5 Intellectual Property Protection in CyberspaceTushar Rajput
Intellectual Property in Cyberspace, Linking, In lining and Framing, P2P Networking,
Webtesting, Domain Names, Management of IPRs in cyberspace, Liabilities of Internet Services Providers, Digital Rights Management, Search Engines and their
Abuse, Non-original Database
Describing the paradigm shift of Information security at Mass Internet age.
Bot Net Order look like Order 66.
What are "New Hopes " of cyber warfare ?
Hydroshare (http://www.hydroshare.tv) enables recording artists and authorized rights owners to upload their promotional music files as multimedia projects, which are then stored and indexed for mass free-distribution. Hydroshare also indexes and redistributes projects that have been freely released on the web and promoted as viral, creating a curated repository of promotional music (formally called “mixtapes”) and video.
There are two issues of legal liability involved in the operation of Hydroshare:
I. Liability to performance right holders (labels/artists) stemming from the redistribution of promotional music on the Internet.
II. Liability to the rights owners of underlying music reused by the artist in the promotional project.
This summarises my full report on the role and responsibilities of online intermediaries re copyright infringement, June 2011. The conclusion is that the rush to graduated response solutions is premature given their drawbacks and that legal attention should first go to creating better legal frameworks for facilitating legal online content delivery.
A presentation at the 'Information Privacy, Security and Forensics in the Digital Age' Symposium - a National Library of Wales / Aberystwyth University event 6th September 2012
Discourse on the public and private spheres in the digital age has aroused much critical commentary and has occasioned a revisioning of the meaning of public and private in the realm of information. Developments in on-line communication and commerce have popularised this debate and the question of what information is, or should be, public and private, is one which reflects the complexity and interconnectivity of personal and public personas.
In exploring the perceived potential for transparency and accountability, finding the balance between consumerism and control, collaboration and cyber security, and in developing communities of trust whilst being mindful of compliance and continuous enforcement is a challenge which benefits from interdisciplinary approaches. This symposium explores the boundaries of public and private in the digital ecology and includes contributions from a diverse range of fields: forensics, security, law, information and archival science, and social and mobile media.
There has been unprecedented activity in this area in the second decade of this millennium, culminating in a proclamation by the United Nations on access to the Internet as a human right, the deliberations of the Leveson Enquiry regarding press standards and surveillance culture and EU e-privacy and data protection reform, to name a few.
SOPA, OPEN, ACTA and parallel copyright reforms in Europe, The right way to t...beamatinet
Conference Jan. 23 2012, Stanford Law School on SOPA, OPEN, ACTA and parallel copyright reforms in Europe, The right way to tackle online infringement?
(by @beamartinet)
Unit 5 Intellectual Property Protection in CyberspaceTushar Rajput
Intellectual Property in Cyberspace, Linking, In lining and Framing, P2P Networking,
Webtesting, Domain Names, Management of IPRs in cyberspace, Liabilities of Internet Services Providers, Digital Rights Management, Search Engines and their
Abuse, Non-original Database
Describing the paradigm shift of Information security at Mass Internet age.
Bot Net Order look like Order 66.
What are "New Hopes " of cyber warfare ?
Hydroshare (http://www.hydroshare.tv) enables recording artists and authorized rights owners to upload their promotional music files as multimedia projects, which are then stored and indexed for mass free-distribution. Hydroshare also indexes and redistributes projects that have been freely released on the web and promoted as viral, creating a curated repository of promotional music (formally called “mixtapes”) and video.
There are two issues of legal liability involved in the operation of Hydroshare:
I. Liability to performance right holders (labels/artists) stemming from the redistribution of promotional music on the Internet.
II. Liability to the rights owners of underlying music reused by the artist in the promotional project.
This summarises my full report on the role and responsibilities of online intermediaries re copyright infringement, June 2011. The conclusion is that the rush to graduated response solutions is premature given their drawbacks and that legal attention should first go to creating better legal frameworks for facilitating legal online content delivery.
A presentation at the 'Information Privacy, Security and Forensics in the Digital Age' Symposium - a National Library of Wales / Aberystwyth University event 6th September 2012
Discourse on the public and private spheres in the digital age has aroused much critical commentary and has occasioned a revisioning of the meaning of public and private in the realm of information. Developments in on-line communication and commerce have popularised this debate and the question of what information is, or should be, public and private, is one which reflects the complexity and interconnectivity of personal and public personas.
In exploring the perceived potential for transparency and accountability, finding the balance between consumerism and control, collaboration and cyber security, and in developing communities of trust whilst being mindful of compliance and continuous enforcement is a challenge which benefits from interdisciplinary approaches. This symposium explores the boundaries of public and private in the digital ecology and includes contributions from a diverse range of fields: forensics, security, law, information and archival science, and social and mobile media.
There has been unprecedented activity in this area in the second decade of this millennium, culminating in a proclamation by the United Nations on access to the Internet as a human right, the deliberations of the Leveson Enquiry regarding press standards and surveillance culture and EU e-privacy and data protection reform, to name a few.
SOPA, OPEN, ACTA and parallel copyright reforms in Europe, The right way to t...beamatinet
Conference Jan. 23 2012, Stanford Law School on SOPA, OPEN, ACTA and parallel copyright reforms in Europe, The right way to tackle online infringement?
(by @beamartinet)
Art. 13(1) of the DSM Directive: a comparative perspective
Roberto Caso and Federica Giovanella
This presentation illustrates the reasons that in the Nineties led the USA Digital Millennium Copyright Act’s (DMCA) drafters to leave out of the Act a provision imposing content recognition technologies.
The drafters reached the conclusion that imposing such an obligation on providers would create a number of imbalances between the rights at stake and threaten the public interest.
We argue that despite the technological development, the same reasons still hold true today and that the European Union should resist imposing such obligations on providers. Hence, art. 13(1) of the Proposal for a Directive on Copyright in the Digital Single Market (DSM Directive) should be delated.
Finally, we maintain that in case of enactment of the current text, the Court of Justice of the EU could still help in re-balancing the rights at stake and serving the public interest that art. 13(1) would threaten.
Dan Glover Indirect theories of copyright liabilitybsookman
Here is a copy of the presentation I gave at Osgoode's inaugural IP Intensive Program. The slides deal with theories of indirect infringement in Canada, the United States and the United Kingdom, and with the safe harbours that also govern the behaviour of Internet intermediaries.
El Acta de derechos de autor digitales del milenio (en inglés Digital Millennium Copyright Act o DMCA) es una ley de copyright (derechos de reproducción) de Estados Unidos que implementa dos tratados del año 1996 de la Organización Mundial de la Propiedad Intelectual (OMPI). Esta ley sanciona, no sólo la infracción de los derechos de reproducción en sí, sino también la producción y distribución de tecnología que permita sortear las medidas de protección del copyright (comúnmente conocidas como DRM); además incrementa las penas para las infracciones al derecho de autor en Internet.
Por su parte, la Directiva 2001/29/CE del Parlamento Europeo y el Consejo del 22 de mayo de 2001 sobre la armonización de ciertos aspectos del derecho de autor y derechos relacionados en la sociedad de la información de la Unión Europea, conocida comúnmente como Directiva de la Unión Europea sobre derecho de autor (o EUCD, del inglés European Union Copyright Directive) es una directiva europea que se transpone en el Tratado de la OMPI sobre Derecho de Autor de 1996.
#StopSopaIreland, Keyboard Warriors and 86 Questions: Updating Irish Copyrigh...Rónán Kennedy
This presentation deals with recent developments in copyright law in Ireland. It begins by considering the litigation between the music industry and the country’s largest Internet service provider, Eircom, in 2009, which was settled with an agreement by the latter to operate a “three strikes and you’re out” policy. It also discusses the subsequent attempts by the Data Protection Commissioner to halt the operation of this protocol. It then discusses the significant decision of the High Court in the EMI v UPC case (2010), which highlighted a gap in the the Copyright and Related Rights Act 2000. When the Irish government proposed legislation to fill this gap, it was strongly opposed under the slogan #StopSopaIreland but nonetheless became law. Finally, it examines the ongoing review by the Copyright Review Committee, which has posed eighty-six questions for the Irish copyright industry and public to answer as it tries to formulate proposals for modernizing Irish copyright law.
Intellectual Property: Introduction, Protection of Intellectual Property Copyright, Related Rights, Patents, Industrial Designs, Trademark, Unfair Competition
Information Technology Related Intellectual Property Rights Computer Software and Intellectual Property-Objective, Copyright Protection, Reproducing, Defences, Patent Protection. Database and Data Protection-Objective, Need for Protection, UK Data Protection Act, 1998, US Safe Harbor Principle, Enforcement. Protection of Semi-conductor Chips-Objectives Justification of protection, Criteria, Subject-matter of Protection, WIPO Treaty, TRIPs, SCPA. Domain Name Protection-Objectives, domain name and Intellectual Property, Registration of domain names, disputes under Intellectual Property Rights, Jurisdictional Issues, and International Perspective.
Patents (Ownership and Enforcement of Intellectual Property) Patents-Objectives, Rights, Assignments, Defences in case of Infringement Copyright-Objectives, Rights, Transfer of Copyright, work of employment Infringement, Defences for infringement Trademarks-Objectives, Rights, Protection of good will, Infringement, Passing off, Defences. Designs-Objectives, Rights, Assignments, Infringements, Defences of Design Infringement
Enforcement of Intellectual Property Rights - Civil Remedies, Criminal Remedies, Border Security measures. Practical Aspects of Licencing – Benefits, Determinative factors, important clauses, licensing clauses.
Cyber Law: Basic Concepts of Technology and Law : Understanding the Technology of Internet, Scope of Cyber Laws, Cyber Jurisprudence Law of Digital Contracts : The Essence of Digital Contracts, The System of Digital Signatures, The Role and Function of Certifying Authorities, The Science of Cryptography Intellectual Property Issues in Cyber Space: Domain Names and Related issues, Copyright in the Digital Media, Patents in the Cyber World. Rights of Netizens and E-Governance : Privacy and Freedom Issues in the Cyber World, E-Governance, Cyber Crimes and Cyber Laws
Information Technology Act 2000 : Information Technology Act-2000-1 (Sec 1 to 13), Information Technology Act-2000-2 (Sec 14 to 42 and Certifying authority Rules), Information Technology Act-2000-3 (Sec 43 to 45 and Sec 65 to 78), Information Technology Act-2000-4(Sec 46 to Sec 64 and CRAT Rules), Information Technology Act-2000-5 (Sec 79 to 90), Information Technology Act-2000-6 ( Sec 91-94) Amendments in 2008.
Glyn moody: ethics of intellectual monopolies - fscons 2010glynmoody
FSCONS 2010 talk about how copyright and patents were created to deal with scarcity; in today’s world of creative and inventive abundance, we need neither. Freeing up knowledge for all to use would cause a positive feedback loop of creativity and invention.
Glyn moody ethics of intellectual monopolies - fscons 2010FSCONS
FSCONS 2010 talk about how copyright and patents were created to deal with scarcity; in today's world of creative and inventive abundance, we need neither. Freeing up knowledge for all to use would cause a positive feedback loop of creativity and invention.
These are the slides from my annual presentation to the Toronto computer Lawyers’ Group on “The year in review in Computer, Internet and E-Commerce Law”. It covered the period from June 2014 to June 2015. The developments included cases from Canada, the U.S. the U.K. and other Commonwealth countries.
Challenges Faced by Legal in Global technology Companies
Presentation on hadopi laws
1. The French Laws « Hadopi #1 & 2 »
October 10, 2012
Anne-Sylvie Vassenaix-Paxton
Partner
2. 2
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.
3. 3
Introduction
Legal framework before Hadopi laws was strong but mostly
ineffective
Criminal penalties incurred for copyright infringement
(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
4. 4
Introduction
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
5. 5
I. 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
6. 6
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
7. 7
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)
(i) 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)
(ii) 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
8. 8
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)
(i) the « encouragement of the development of the legal offer on the
Internet »
(ii) the « protection of works to which a copyright or related right is attached
against any infringement »
(iii) the « regulation of the uses of the technical measures of protection and
information »
Implement the preliminary phase of the so-called “progressive
response” (warnings)
9. 9
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
10. 10
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
o by email
Second warning
o 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
11. 11
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:
i. rightholders
ii. rights collection and distribution societies
iii. industry defense bodies
12. 12
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.
13. 13
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
14. 14
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
15. 15
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
16. 16
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
17. 17
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:
i. the circumstances and the seriousness of the offenses
ii. 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
18. 18
II. Hadopi #2 or « the criminal law for the protection of
artistic and literary works on the Internet »
1. 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
19. 19
II. Hadopi #2 or « the criminal law for the protection of
artistic and literary works on the Internet »
2. 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:
(i) “has failed to put in place means of securing such access” or
(ii) “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
20. 20
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
21. 21
II. Hadopi #2 or « the criminal law for the protection of
artistic and literary works on the Internet »
1) 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
22. 22
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
23. 23
II. Hadopi #2 or « the criminal law for the protection of
artistic and literary works on the Internet »
i. 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
24. 24
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
25. 25
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)
26. 26
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
i. 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)
27. 27
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
28. 28
Conclusion
• 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