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    French Revolution Meets Information Revolution In Setback For HADOPI Law

    Published on 11 June 2009 @ 5:07 pm

    By , Intellectual Property Watch

    The French Constitutional Council on Wednesday decided that two articles of a newly passed law creating a graduated punishment mechanism for alleged copyright infringement on the internet did not comply with the French Constitution. The government has options to proceed with changes reflecting the setback to the so-called HADOPI law.

    The law, passed on 13 May (IPW, Copyright Policy, 13 May 2009), created a high-level authority for the diffusion of works and the protection of rights on the internet (HADOPI). Included in the sanctions available to the high-level authority was the suspension of internet connectivity from two months to one year, after two warnings of illegal downloading. This “graduated response” mechanism was referred to as a “three strikes” policy.

    It was appealed by over 60 French deputies to the Constitutional Council and stirred reaction at the international level, especially at the European Parliament and the Council of Europe. (IPW, Copyright Policy, 8 June 2009)

    On 10 June, the Council decided that several points in articles 5 and 11 of this law did not comply with the French Constitution. They based their decision on article 11 of the Declaration of the Rights of Man and of the Citizen (in French), dating back to 1789, which guarantees the freedom of communication and expression.

    Article 9 of the declaration insists on the presumption of innocence, reversed by the HADOPI law.

    According to the Council’s ruling (in French), the suspension of the internet connection can only be decided by a judge, not by an administrative commission.

    Therefore, the Constitutional Council has censored all dispositions relating to the sanctioning ability of the HADOPI Commission. This decision might have international implications.

    According to sources at the Constitutional Council and the National Assembly, the government now has two choices to pass the law; the first one would be that the French President asks for a new deliberation of the text in front of the French Parliament to find an acceptable solution so that the two censored paragraphs are constitutionally coherent with the risk that the Constitutional Council might be consulted again over the constitutionality of this modified law. The second one would be that the French government asks the president to approve the law with the mention of the unconstitutionality of the censored paragraphs. The law should be published within 15 days of the Constitutional Council’s decision. At this time no official declaration has been made by the French Government about the issue.

    Christine Albanel, the French culture minister, said in a 10 June statement that she regretted that the graduated response cannot be implemented by the HADOPI commission but said she would ask the French president and prime minister to amend the law to comply with the Constitutional Council’s conclusion so that a judge can handle the final stage of the graduated response

    She added she was pleased that a “pedagogical anti-piracy mechanism” had been validated by the Constitutional Council, in favour of a “civilised internet.” She was referring to a set of measures including incentives to develop and encourage the legal downloading of cultural content and the quicker release of movies in DVD format and on-demand videos.

    The first warnings to alleged infringers should be sent as soon as the autumn, she said.

    Catherine Saez may be reached at csaez@ip-watch.ch.

     

    Comments

    1. French Constitutional Council hold parts of ‘three-strikes’ law unconstitutional : marko.ca says:

      [...] Catherine Saez at IP Watch writes that the two ways in which the law could still pass is by 1. fixing the unconstitutional portions [...]

    2. Intellectual Property Watch » Blog Archive » French Revolution … | frenchbrite.com says:

      [...] here to read the rest: Intellectual Property Watch » Blog Archive » French Revolution … addthis_url = [...]

    3. French copyright law hits the usual snags — Groupings says:

      [...] by Earl Mardle on Today   Despite managing to get through the French Parliament a law essentially identical to the one that passed, then failed, in NZ, copyright owners continue to bang up against the key problem with their approach, the presumption of guilt. French Revolution Meets Information Revolution In Setback For HADOPI Law [...]


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.