French Minister Says HADOPI Law A 21st Century Reality

WASHINGTON, DC – France’s “three strikes” law is both “ambitious” and “realistic,” French Culture and Communication Minister Christine Albanel told a conference Tuesday, and anyone who thinks the internet can be a lawless arena where anything goes is “in the wrong century.” Also at the conference, predictions were made on US legislation on patent reform, performance rights and other issues.

Albanel, the official tasked with pushing through the so-called HADOPI law was in France Tuesday, but she made remarks read in translation by a French ambassador to the 9-10 June World Copyright Summit here, sponsored by the International Confederation of Societies of Authors and Composers (CISAC). The meeting delved into the current state of creative industries, the policies affecting them, and copyright protections in a digital environment, among other topics. Organisers claim it featured 560 delegates from 250 companies and 65 countries.

Three strikes is what the copyright industry likes to call a “graduated response” system that starts with written warnings issued to alleged copyright infringers, then ends in internet service termination should the infringer continue his or her illegal activity. The French law will set up a specialised agency with the acronym HADOPI.

Saying piracy threatens the diversity of creative offerings online, Albanel asserted it would be a “disastrous situation,” both culturally and economically should it not be stemmed.

“Piracy is a parasite economy … the situation has become urgent,” she added.

France set a precedent for other countries to consider a “three-strikes law.” Ireland has its own version, and South Korea’s National Assembly passed three-strikes on April 1; it goes into effect later this year. Taiwan has moved that way. In the United States, the Recording Industry Association of America is in talks with several internet service providers on a similar system.

Three-strikes critics argue that cutting off one’s internet with no recourse unfair and a tremendous civil rights violation, as government agencies that would oversee such programs could engage in too much surveillance. They also view the HADOPI law as unenforceable, and resistance is widespread in France. But they’re not getting much pity from the French government, whose president is married to a recording industry star and model.

“No constitution or jurisdiction in the world claims that internet access is a fundamental freedom,” Albanel said. “No right is unconditional. It must be reconciled with other forms of freedom and cannot be invoked to violate the law.”

But the Council of Europe recently declared that access to the internet is a fundamental right (IPW, European Policy, 8 June 2009).

US Senator Orrin Hatch, a Utah Republican, cited the need for a “solid partnership” between the copyright community and ISPs “to break up the current viral spread of copyrighted works on the internet.” He said he is “encouraged” by the discussions in the US on this front, calling them “promising.”

CISAC is in favour of three-strikes laws so long as they strengthen copyright, but in question is whether it can be enforced properly. “What you don’t want to do is start locking 15-year-olds up,” Patrick Rackow, CEO of the British Academy of Songwriters, Composers and Authors, told Intellectual Property Watch. “It’s setting a marker – I think that’s a good thing. How it will pan out is too soon to say.”

The bigger problem, he said, is the “way that copyright is looked at.” In the United Kingdom and America, he said, copyright is a “pure economic right,” whereas in Europe, it’s an author’s (or creator’s) right. Putting a human face to copyright and taking the association away from the “faceless corporation” is key, he said.

“We’re chipping way at the stone – we’re not expecting dramatic changes overnight, but we do feel it’s time to address it, especially with the new administration in the US,” Robin Gibb, CISAC president and Bee Gees singer and songwriter, told Intellectual Property Watch.

Hatch: Patent Reform Passage Possible This Year

More generally, in the United States, Hatch said “the IP agenda is chock full this Congress,” citing his desire to pass patent reform, expanding public performance rights to include analogue radio transmissions, passing orphan works legislation and the Satellite Home Viewer Extension Reauthorization Act (SHVERA). SHVERA essentially created a compulsory licence and allowed satellite companies to provide “distant” TV stations outside the local market to eligible subscribers.

Hatch later told Intellectual Property Watch that patent reform can pass this year, as long as there is political will to push it through. The key will be what the House of Representatives does with its version of the bill. The senator, who withdrew his support for the Senate patent reform bill, S. 515, after inequitable conduct reform was taken out, said in the end, that provision will be in the final version – somehow. Inequitable conduct reform is aimed at making sure patent applicants are honest in disclosing relevant information to patent examiners.

“It will be in the final version. See, we’ve watered that down to where it’s hardly inequitable conduct, and they [Democrats] can live with that. …They know that it’s the fair thing to do, and it’s the only way to get things done,” he said.

Hatch also said an orphan works bill needs to be reintroduced this session and must be pushed through with force if it should get done. Orphan works are copyrighted materials for which the owner cannot be found.

Performance Rights

Performance rights remains a hot-button issue in Washington. Artists and groups like the Digital Media Association (DiMA) – which advocates platform parity – want AM/FM radio broadcasters to pay for music they play, as webcasters, satellite radio providers and others have to do.

Commercials airing on some local radio stations – including those in the Washington area – are protesting what broadcasters call a “performance tax.” They tout a bipartisan resolution in the House and Senate that balks at “any new performance fee, tax, royalty or other charge,” saying it would reduce the amount of music played on the airwaves – particularly that of lesser-known artists – and would put small broadcasters out of business. The National Association of Broadcasters says it already pays out billions to artists who they give airtime to.

“We don’t think it’s broken and doesn’t need fixing,” NAB’s senior associate general counsel Benjamin Ivins said at the conference, adding that that system has helped produce the top music industry in the world in the US over the past 80 years.

But RIAA CEO Mitch Bainwol blasted the NAB for those commercials, asking who was paying for them or sponsoring them. “We’re in the middle of a really, really combative political fight,” Bainwol said, noting that the NAB has not allowed content holders to equally advertise their cause.

“The broadcasters are playing a distinctive Washington game, to come up with a resolution that’s meaningless and give it meaning,” Bainwol said. “It’s nothing more than a political stunt. When you hear it, discount it, flush it down the toilet. It’s garbage.”

Hatch said a lack of performance right in sound recordings in the US is a “historical anomaly,” and the US needs to catch up with the rest of the world on this issue. In any performance rights legislation, he added, the issue of “wilful infringement” needs to involve a “fair balance.” He anticipates the Senate Judiciary Committee will act on this issue as early as this summer. The House Judiciary Committee passed the House bill, HR 848, last month.

There’s also a movement in some countries to recognise a resale royalty right, which entitles artists – i.e. painters or sculptors – to a royalty each time their work is sold through an auction house or art dealer. The pro-resale right argument says the fact that these works typically increase in value means the artist should be entitled to royalties each time it is sold, and that those royalties should also be allowed to be passed on to a beneficiary once the artist dies.

About 30 countries recognise these rights, but not the United States or Switzerland, among others. The UK recently passed a law recognising the right, and Australia will this year, though it likely will make artists wait many years to receive royalties.

“It works – it’s a great thing for artists,” said Joanna Cave, CEO of the Visual Arts Copyright Collecting Society in Australia. “There should be a global acceptance of the principle.”

The Dreaded “Pirate Party”

The gains made by the Swedish Pirate Party 7 June in the European Parliament elections are worrying IP rights holders, particularly those who see a whole new, younger generation cropping up who seem to be getting their users’-rights message out more effectively than copyright holders.

This “should alarm all of us in this room when it comes to intellectual property law,” said Rep. Robert Wexler, a Florida Democrat. “We can’t lose this young generation on intellectual property rights and we can’t fool ourselves. …when the Swedish Pirate Party talks about how music is universal and is always available for everyone to enjoy for free,” the content industry needs to be able to effectively respond. But enforcement alone can’t change the mentality.

“It’s the battle of the message and we must win,” Wexler said.

In the US, it is not expected the Obama administration will bring huge changes to intellectual property laws. Public Knowledge President Gigi Sohn anticipates seeing “much more thoughtfulness” as to how the administration approaches IP and piracy issues. Gibb said there’s a “new attitude” from a younger president who can take into account the influence of creative works on a society and its future.

“It hopefully will raise the consciousness of the new administration,” and inspire new artists, he said. As for whom he’d like to see named the administration’s IP enforcement tsar, as a songwriter, Gibb said that tsar should have a “fundamental respect” for artists’ rights and intellectual property in general, “to produce a climate for new writers to produce and make works for the future.”