HADOPI law
Encyclopedia
The French HADOPI law or Creation and Internet law was introduced during 2009 as a means to control and regulate internet access and encourage compliance with copyright laws. HADOPI is the acronym of the government agency created to administer it—Haute Autorité pour la Diffusion des Œuvres et la Protection des Droits sur Internet.
, the bill was rejected by the French National Assembly
on 9 April 2009. The French government asked for reconsideration of the bill by the French National Assembly and it was adopted on 12 May 2009 by the assembly, and on 13 May 2009 by the French Senate
.
Debate included accusations of dubious tactics made against the promoters of the bill. There were complaints that the government's official website misrepresented the bill, that the French Wikipedia pages on it were falsified by the Ministry of Culture on 14 February 2009. and a "petition of 10,000 artists" in support of the bill was questioned as allegedly fraudulent.
The new government agency is headed by a board of nine members, three appointed by the government, two by the legislative bodies, three by judicial bodies and one by the Conseil supérieur de la propriété littéraire et artistique (Superior Council of Artistic and Literary Property), a government council responsible to the French Ministry of Culture. The agency is vested with the power to police Internet users.
The ISP is then required to monitor the subject internet connection. In addition, the internet access subscriber is invited to install a filter on her internet connection.
If, in the 6 months following the first step, a repeat offense is suspected by the copyright holder, their representative, the ISP or HADOPI, the second step of the procedure is invoked.
In the event that the offender fails to comply during the year following the reception of the certified letter, and upon accusation of repeated offenses by the copyright holder, a representative, the ISP or HADOPI, the third step of the procedure is invoked.
The internet access subscriber is blacklisted and other ISPs are prohibited from providing an internet connection to the blacklisted subscriber. The service suspension does not, however, interrupt billing, and the offending subscriber is liable to meet any charges or costs resulting from the service termination.
Appeal to a court is possible only during the third phase of the action (after the blocking of internet access) and an appeal can result in shortening but not cancellation of the blocking. The burden of proof is on the appellant.
According to the CNIL
, action under the HADOPI law does not exclude separate prosecution under the French code of Intellectual Property, particularly its articles L331-1 or L335-2, or limit a claimant's other remedies at law. (See CNIL opinion, below).
It has been partially invalidated by the Constitutional Council of France
's rejection of the principle of escalation, and retains only the crime of copyright-infringement, punishable by up to 3 years' prison and a fine of up to €300,000.
The HADOPI law is supposed to address the concerns of the Constitutional Council of France, in addition to replacing the DADVSI law, which has yet to be enforced.
, Christine Albanel
asked the CEO of the major French entertainment retailer
(Fnac
), Denis Olivennes, to lead a task force
to study a three-strike sanction, to conform with the ruling of the French Constitutional Council. After consulting representatives of the entertainment industry, internet service providers and consumer associations, the Olivennes committee reported to the Minister on November 23. The report was signed by 40 companies at the Elysée and presented as the "Olivennes agreement". It was later renamed the "Elysée agreement".
The HADOPI law is the implementation of the Olivennes report, supported by the Olivennes agreement, in which representatives of the entertainment and media industries gave their assent to the law's enforcement procedures. Nevertheless some companies, notably the ISPs Orange and Free, later dissented from the agreement.
, a personal supporter of the law, interceded with the president of the European Commission
regarding the non-scheduling of the then Amendment 138 (see Amendment 46 (previously 138)) of the Telecoms Package
susceptible to invalidate the law. The European Commission rejected his representation on October 6, 2008.
It was also alleged that French Wikipedia pages relative to HADOPI were manipulated by the Ministry of Culture on February 14, 2009.
and other entertainment industry players mounted a petition of "10,000 artists" in support of the HADOPI law. The list has been challenged on several grounds:
has positioned itself against the law and has set up a website to support opposition.
A group called La Quadrature du Net
is a strong lobbyist against the law.
Following an open letter in the newspaper Libération
signed by Chantal Akerman
, Christophe Honoré
, Jean-Pierre Limosin, Zina Modiano, Gaël Morel
, Victoria Abril
, Catherine Deneuve
, Louis Garrel
, Yann Gonzalez, Clotilde Hesme
, Chiara Mastroianni
, Agathe Berman and Paulo Branco producteurs which was published on May 7, 2009, and co-authored notably by Victoria Abril
and Catherine Deneuve
, an informal group has been constituted under the name Creation Public Internet and is composed of UFC Que Choisir, La Quadrature du Net, some syndicated artists and the Internet Society
.
On March 12, 2009, the British Featured Artists Coalition publicised its opposition to the principle of the HADOPI law.
's ruling.
, it was revealed that the logo used an unlicensed font. The font was created by typeface designer Jean François Porchez, and is owned by France Télécom
. The design agency that drew the logo, Plan Créatif, admitted to using the font by mistake – although the font is available only illegally on pirate sites – and the logo was redone with another font.
Legislative passage
Despite strong backing from President Nicolas SarkozyNicolas Sarkozy
Nicolas Sarkozy is the 23rd and current President of the French Republic and ex officio Co-Prince of Andorra. He assumed the office on 16 May 2007 after defeating the Socialist Party candidate Ségolène Royal 10 days earlier....
, the bill was rejected by the French National Assembly
French National Assembly
The French National Assembly is the lower house of the bicameral Parliament of France under the Fifth Republic. The upper house is the Senate ....
on 9 April 2009. The French government asked for reconsideration of the bill by the French National Assembly and it was adopted on 12 May 2009 by the assembly, and on 13 May 2009 by the French Senate
French Senate
The Senate is the upper house of the Parliament of France, presided over by a president.The Senate enjoys less prominence than the lower house, the directly elected National Assembly; debates in the Senate tend to be less tense and generally enjoy less media coverage.-History:France's first...
.
Debate included accusations of dubious tactics made against the promoters of the bill. There were complaints that the government's official website misrepresented the bill, that the French Wikipedia pages on it were falsified by the Ministry of Culture on 14 February 2009. and a "petition of 10,000 artists" in support of the bill was questioned as allegedly fraudulent.
Timeline
- The bill was presented to the French SenateFrench SenateThe Senate is the upper house of the Parliament of France, presided over by a president.The Senate enjoys less prominence than the lower house, the directly elected National Assembly; debates in the Senate tend to be less tense and generally enjoy less media coverage.-History:France's first...
by the government on June 18, 2008. - On October 23, 2008, the government shortened the debate by making the bill a matter of urgency, meaning it could be read only once in each chamber, under art. 45 of the French constitution.
- The bill was adopted by the Senate on October 30, 2008.
- The bill was presented to the AssemblyFrench National AssemblyThe French National Assembly is the lower house of the bicameral Parliament of France under the Fifth Republic. The upper house is the Senate ....
on March 11th, 2009 where it was amended and the amended version adopted on April 2, 2009. - Since the two legislative chambers had now adopted different versions, a parliamentary commission (seven members of the Senate and seven members of the Assembly) was constituted on April 7, 2009, mandated to produce a common text to be voted on by both chambers without further debate.
- The resultant bill was unanimously adopted by the Senate on April 9, 2009. On the same day, it was defeated in the Assembly (21-15), a consequence of absenteeism on the part of French socialist party MPs who later explained themselves in an open letter to the newspaper LibérationLibérationLibération is a French daily newspaper founded in Paris by Jean-Paul Sartre and Serge July in 1973 in the wake of the protest movements of May 1968. Originally a leftist newspaper, it has undergone a number of shifts during the 1980s and 1990s...
. published on April 27, 2009; coauthored by Jean-Marc AyraultJean-Marc AyraultJean-Marc Ayrault is a French politician and a member of the French Socialist Party. He is currently Mayor of Nantes and President of the Socialist Party group in the French National Assembly....
, Patrick BlochePatrick BlochePatrick Bloche is a French politician from the Socialist Party.-References:...
, François BrottesFrançois BrottesFrançois Brottes is a member of the National Assembly of France. He represents the Isère department, and is a member of the Socialiste, radical, citoyen et divers gauche. He's also mayor of Crolles.-References:...
, Corinne ErhelCorinne ErhelCorinne Erhel is a member of the National Assembly of France. She represents the Côtes-d'Armor department, and is a member of the Socialist Party and of the Socialiste, radical, citoyen et divers gauche parliamentary group.-Biography:Graduate of the unstitute of advanced studies of rural law and...
, Michel FrançaixMichel FrançaixMichel Françaix is a member of the National Assembly of France. He represents the Oise department, and is a member of the Socialiste, radical, citoyen et divers gauche.-References:...
, Jean-Louis GagnaireJean-Louis GagnaireJean-Louis Gagnaire is a member of the National Assembly of France. He represents the Loire department, and is a member of the Socialiste, radical, citoyen et divers gauche.-References:...
, Didier MathusDidier MathusDidier Mathus is a member of the National Assembly of France. He represents the Saône-et-Loire department, and is a member of the Socialiste, radical, citoyen et divers gauche.-References:...
, Sandrine MazetierSandrine MazetierSandrine Mazetier is a member of the National Assembly of France. She represents the city of Paris, and is a member of the Socialiste, radical, citoyen et divers gauche.-References:...
, Christian PaulChristian PaulChristian Paul is a French Socialist politician.He was one of the founding members of the Nouveau Parti Socialiste... - The bill was re-presented to the National Assembly on April 29 when 499 amendments were moved, mostof which were rejected
- The amended bill was adopted by the Assembly on May 12, 2009 (296-233). All present French socialist party members voted against it except Jack LangJack Lang (French politician)Jack Mathieu Émile Lang is a French politician. A member of the Socialist Party, he served as France's Minister of Culture from 1981 to 1986 and 1988 to 1992, and as Minister of Education from 1992 to 1993 and 2000 to 2002. He was also the Mayor of Blois from 1989 to 2000...
- The Senate voted in favor of the bill on May 13, (189-14), all senators of the socialist party abstaining, except Samia GhaliSamia GhaliSamia Ghali is a member of the Senate of France, representing the Bouches-du-Rhône department. She is a member of the Socialist Party.-References:*...
. - On May 17, members of the National Assembly contested the constitutionality of the law and submitted it to the Constitutional Council for examination.
- On June 10, the Constitutional Council declared the main part of the bill unconstitutional, therefore making it useless. The council found that the law violated the 1789 Declaration of the Rights of Man and of the CitizenDeclaration of the Rights of Man and of the CitizenThe Declaration of the Rights of Man and of the Citizen is a fundamental document of the French Revolution, defining the individual and collective rights of all the estates of the realm as universal. Influenced by the doctrine of "natural right", the rights of man are held to be universal: valid...
, and in particular presumption of innocence, separation of powers and freedom of speech. - On 22 October 2009, the Constitutional Council approved a revised version of HADOPI, requiring judicial review before revoking a person's internet access, but otherwise resembling the original requirements.
Government agency
The law creates a government agency called Haute Autorité pour la Diffusion des Œuvres et la Protection des Droits sur Internet (HADOPI) (English: the High Authority for Transmission of Creative Works and Copyright Protection on the Internet); replacing a previous agency, the ARMT (Regulation of Technical Measures Authority) created by the DADVSI law.The new government agency is headed by a board of nine members, three appointed by the government, two by the legislative bodies, three by judicial bodies and one by the Conseil supérieur de la propriété littéraire et artistique (Superior Council of Artistic and Literary Property), a government council responsible to the French Ministry of Culture. The agency is vested with the power to police Internet users.
Mandate
To ensure that internet subscribers "screen their internet connections in order to prevent the exchange of copyrighted material without prior agreement from the copyright holders" (Art. L. 336-3 of the bill). HADOPI also retains mandates previously attributed to the ARMT.Enforcement
On receipt of a complaint from a copyright holder or representative, HADOPI may initiate a 'three-strike' procedure:- (1) An email message is sent to the offending internet access subscriber, derived from the IP addressIP addressAn Internet Protocol address is a numerical label assigned to each device participating in a computer network that uses the Internet Protocol for communication. An IP address serves two principal functions: host or network interface identification and location addressing...
involved in the claim. The email specifies the time of the claim but neither the object of the claim nor the identity of the claimant.
The ISP is then required to monitor the subject internet connection. In addition, the internet access subscriber is invited to install a filter on her internet connection.
If, in the 6 months following the first step, a repeat offense is suspected by the copyright holder, their representative, the ISP or HADOPI, the second step of the procedure is invoked.
- (2) A certified letter is sent to the offending internet access subscriber with similar content to the originating email message.
In the event that the offender fails to comply during the year following the reception of the certified letter, and upon accusation of repeated offenses by the copyright holder, a representative, the ISP or HADOPI, the third step of the procedure is invoked.
- (3) The ISP is required to suspend internet access for the offending internet connection, that which is the subject of the claim, for a specified period of from two months to one year.
The internet access subscriber is blacklisted and other ISPs are prohibited from providing an internet connection to the blacklisted subscriber. The service suspension does not, however, interrupt billing, and the offending subscriber is liable to meet any charges or costs resulting from the service termination.
Appeal to a court is possible only during the third phase of the action (after the blocking of internet access) and an appeal can result in shortening but not cancellation of the blocking. The burden of proof is on the appellant.
According to the CNIL
CNIL
The Commission nationale de l'informatique et des libertés or CNIL is an independent French administrative authority whose mission is to ensure that data privacy law is applied to the collection, storage, and use of personal data. Its existence was established by French , concerning computers,...
, action under the HADOPI law does not exclude separate prosecution under the French code of Intellectual Property, particularly its articles L331-1 or L335-2, or limit a claimant's other remedies at law. (See CNIL opinion, below).
Background
Implementation of the European Copyright Directive resulted in the French DADVSI law which has been in force since 2007, creating the crime of lack of screening of Internet connections in order to prevent exchange of copyrighted material without prior agreement from the copyright holders (art. L335.12). The DADVSI law did not prescribe any punishment.It has been partially invalidated by the Constitutional Council of France
Constitutional Council of France
The Constitutional Council is the highest constitutional authority in France. It was established by the Constitution of the Fifth Republic on 4 October 1958, and its duty is to ensure that the principles and rules of the constitution are upheld.Its main activity is to rule on whether proposed...
's rejection of the principle of escalation, and retains only the crime of copyright-infringement, punishable by up to 3 years' prison and a fine of up to €300,000.
The HADOPI law is supposed to address the concerns of the Constitutional Council of France, in addition to replacing the DADVSI law, which has yet to be enforced.
Olivennes report and Elysée agreement
On September 5, 2007, the French Minister of CultureMinister of Culture (France)
The Minister of Culture is, in the Government of France, the cabinet member in charge of national museums and monuments; promoting and protecting the arts in France and abroad; and managing the national archives and regional "maisons de culture"...
, Christine Albanel
Christine Albanel
Christine Albanel is a French civil servant. From May 2007 to June 2009 she was France's Minister for Culture and Communication in François Fillon's government.Albanel is agrégé in classical Letters...
asked the CEO of the major French entertainment retailer
Retailing
Retail consists of the sale of physical goods or merchandise from a fixed location, such as a department store, boutique or kiosk, or by mail, in small or individual lots for direct consumption by the purchaser. Retailing may include subordinated services, such as delivery. Purchasers may be...
(Fnac
Fnac
Fnac is an international entertainment retail chain offering cultural and electronic products, founded by André Essel and Max Théret in 1954. It is the largest retailer of its kind in France...
), Denis Olivennes, to lead a task force
Task force
A task force is a unit or formation established to work on a single defined task or activity. Originally introduced by the United States Navy, the term has now caught on for general usage and is a standard part of NATO terminology...
to study a three-strike sanction, to conform with the ruling of the French Constitutional Council. After consulting representatives of the entertainment industry, internet service providers and consumer associations, the Olivennes committee reported to the Minister on November 23. The report was signed by 40 companies at the Elysée and presented as the "Olivennes agreement". It was later renamed the "Elysée agreement".
The HADOPI law is the implementation of the Olivennes report, supported by the Olivennes agreement, in which representatives of the entertainment and media industries gave their assent to the law's enforcement procedures. Nevertheless some companies, notably the ISPs Orange and Free, later dissented from the agreement.
Lobbying for the bill
Owing to its controversial nature, the bill became a subject of intense campaigning in various media, which was redoubled after its parliamentary defeat on April 9, 2009.Head of state
On October 4, 2008, President Nicolas SarkozyNicolas Sarkozy
Nicolas Sarkozy is the 23rd and current President of the French Republic and ex officio Co-Prince of Andorra. He assumed the office on 16 May 2007 after defeating the Socialist Party candidate Ségolène Royal 10 days earlier....
, a personal supporter of the law, interceded with the president of the European Commission
European Commission
The European Commission is the executive body of the European Union. The body is responsible for proposing legislation, implementing decisions, upholding the Union's treaties and the general day-to-day running of the Union....
regarding the non-scheduling of the then Amendment 138 (see Amendment 46 (previously 138)) of the Telecoms Package
Telecoms Package
The Telecoms Reform Package is a law of the European Union, aimed at updating the EU Telecoms Rules of 2002 and unifying Europe's tele-communications market for all 27 EU member states...
susceptible to invalidate the law. The European Commission rejected his representation on October 6, 2008.
Government
The French government created a promotional website in support of the country's entertainment industry. The content of the website was criticised as misleading.It was also alleged that French Wikipedia pages relative to HADOPI were manipulated by the Ministry of Culture on February 14, 2009.
Entertainment industry
SACEMSACEM
SACEM may refer to:* The Société des auteurs, compositeurs et éditeurs de musique is a French professional association collecting payments of artists’ rights and distributing the rights to the original authors, composers and publishers...
and other entertainment industry players mounted a petition of "10,000 artists" in support of the HADOPI law. The list has been challenged on several grounds:
- Many signatories are said to be unconnected with artistic activities ascribed to them
- Some signatories are bogus or fictitious, an example being Paul AtreidesPaul AtreidesPaul Atreides is a fictional character in the Dune universe created by Frank Herbert. Paul is a prominent character in the first two novels in the series, Dune and Dune Messiah , and returns in Children of Dune . The character is brought back as two different gholas in the Brian Herbert/Kevin J...
. - Some artists listed as signatories have denied that they support it.
Consumer associations
The leading French consumer association UFC Que ChoisirUFC Que Choisir
UFC Que Choisir is a French consumers group.UFC Que Choisir defends the rights of consumers in litigation against corporations, and pushes for public policies reinforcing the rights of consumers. They publish a magazine called Que Choisir ....
has positioned itself against the law and has set up a website to support opposition.
A group called La Quadrature du Net
La Quadrature du Net
La Quadrature du Net is a French advocacy group that promotes the digital rights and freedoms of citizens. More specifically, it advocates for the adaptation of French and European legislations to respect the founding principles of the Internet, most notably the free circulation of knowledge...
is a strong lobbyist against the law.
Following an open letter in the newspaper Libération
Libération
Libération is a French daily newspaper founded in Paris by Jean-Paul Sartre and Serge July in 1973 in the wake of the protest movements of May 1968. Originally a leftist newspaper, it has undergone a number of shifts during the 1980s and 1990s...
signed by Chantal Akerman
Chantal Akerman
Chantal Anne Akerman is a Belgian film director, artist, and professor of film at the European Graduate School. Akerman's best-known film, Jeanne Dielman, 23 quai du Commerce, 1080 Bruxelles , exemplifies a dedication to the ellipses of conventional narrative cinema.-Early life:Akerman was born to...
, Christophe Honoré
Christophe Honoré
Christophe Honoré is a French writer and film director born in Carhaix, Finistère in 1970.After moving to Paris in 1995, he wrote articles in "Les Cahiers du Cinéma." He started writing soon-after. His 1996 book Tout contre Léo talks about HIV and is aimed at young adults; he made it into a movie...
, Jean-Pierre Limosin, Zina Modiano, Gaël Morel
Gaël Morel
Gaël Morel is a French film director, screenwriter and actor.- Biography :Morel was born in Villefranche-sur-Saône, Rhône, France, a small town of 30,000 inhabitants outside Lyon...
, Victoria Abril
Victoria Abril
Victoria Abril is a Spanish film actress. She is best known to international audiences for her performance in the movie ¡Átame! by director Pedro Almodóvar....
, Catherine Deneuve
Catherine Deneuve
Catherine Deneuve is a French actress. She gained recognition for her portrayal of aloof and mysterious beauties in films such as Repulsion and Belle de jour . Deneuve was nominated for an Academy Award for Best Actress in 1993 for her performance in Indochine; she also won César Awards for that...
, Louis Garrel
Louis Garrel
Louis Garrel is a French actor. He is best known for his starring role in The Dreamers, directed by Bernardo Bertolucci...
, Yann Gonzalez, Clotilde Hesme
Clotilde Hesme
Clotilde Hesme is a French actress. She is the sister of Annelise Hesme, and Élodie Hesme, who are also actresses....
, Chiara Mastroianni
Chiara Mastroianni
Chiara Charlotte Mastroianni is a French actress and singer.-Biography:Mastroianni was born in Paris, the daughter of Catherine Deneuve and Marcello Mastroianni. Her elder half-brother is Christian Vadim; her elder half-sister is Barbara Mastroianni.She had relationships with the actors Benicio...
, Agathe Berman and Paulo Branco producteurs which was published on May 7, 2009, and co-authored notably by Victoria Abril
Victoria Abril
Victoria Abril is a Spanish film actress. She is best known to international audiences for her performance in the movie ¡Átame! by director Pedro Almodóvar....
and Catherine Deneuve
Catherine Deneuve
Catherine Deneuve is a French actress. She gained recognition for her portrayal of aloof and mysterious beauties in films such as Repulsion and Belle de jour . Deneuve was nominated for an Academy Award for Best Actress in 1993 for her performance in Indochine; she also won César Awards for that...
, an informal group has been constituted under the name Creation Public Internet and is composed of UFC Que Choisir, La Quadrature du Net, some syndicated artists and the Internet Society
Internet Society
The Internet Society or ISOC is an international, nonprofit organization founded during 1992 to provide direction in Internet related standards, education, and policy...
.
On March 12, 2009, the British Featured Artists Coalition publicised its opposition to the principle of the HADOPI law.
Political groups' positions
With the exception of the French Green Party who campaigned against the law, other political groups represented in the legislative chambers were not active lobbying for or against the law, though individual members did so. The French Socialist Party was probably the most divided. While it initially favored the law (voted yes in the Senate's first reading), it was chiefly responsible for the surprise rejection of the bill after the first reading in the National Assembly, as well as requesting the Constitutional CouncilConstitutional Council
Constitutional Council might refer to:* Constitutional Council of Chad* Constitutional Council of France* Constitutional Council of Kazakhstan* Constitutional Council of Lebanon* Constitutional Council of Sri Lanka...
's ruling.
Logo incident
Shortly after HADOPI's agency logo was presented to the public by Minister of Culture and Communication Frédéric MitterrandFrédéric Mitterrand
Frédéric Mitterrand , a Franco-Tunisian citizen, is the French Minister of Culture and Communication. Throughout his career, he has been an actor, screenwriter, television presenter, writer, producer and director.-Biography:...
, it was revealed that the logo used an unlicensed font. The font was created by typeface designer Jean François Porchez, and is owned by France Télécom
France Télécom
France Telecom S.A. is the main telecommunications company in France, the third-largest in Europe and one of the largest in the world. It currently employs about 180,000 people and has 192.7 million customers worldwide . In 2010 the group had revenue of €45.5 billion...
. The design agency that drew the logo, Plan Créatif, admitted to using the font by mistake – although the font is available only illegally on pirate sites – and the logo was redone with another font.
See also
- Three strikes (policy)
- Copyright aspects of downloading and streamingCopyright aspects of downloading and streamingStreaming and downloading media files may often involve use of linking and framing Internet material, but they raise quite separate issues from linking and framing under copyright law...
- Music downloadMusic downloadA music download is the transferral of music from an Internet-facing computer or website to a user's local computer. This term encompasses both legal downloads and downloads of copyright material without permission or payment...
- Digital Economy Act 2010Digital Economy Act 2010The Digital Economy Act 2010 is an Act of the Parliament of the United Kingdom regulating digital media. Introduced by Peter Mandelson, Lord Mandelson, it received Royal Assent on 8 April 2010, and came into force on 8 June 2010 The Digital Economy Act 2010 (c. 24) is an Act of the Parliament of...