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An update to French telecoms law mandates non-neutral, pro-copyright regulation of ISPs. And it’s based on the Telecoms Package.

Over the summer, the French government has published its transposition of the Telecoms Package. The Sarkozy regime has used a controversial manipulation of the legislative process to get the transposition into law without going through the French Parliament. It includes provisions which

 

contradict the French government’s stated objective of protecting net neutrality. Moreover, it includes a copyright obligation on ISPs to support France’s 3-strikes law.

 The French government decided earlier this year that  the Telecoms Package was  to be transposed by an ‘ordonnance’, which is secondary legislation  and does not need to go before the Parliament.    The ordonnance updates the existing French communications law with the requirements of the Telecoms Package.

 A report from an  advisory council on the digital economy which was opposed to some of the provisions in the ordonnance, was also ignored as the government sought to push through the transposition.

The French transposition of the Universal Services directive Article 20 and 21  - user contracts – makes the ISPs include a clause in their contract telling users of the legal consequnces of copyright infringement:

 les conséquences juridiques de l'utilisation  des services de communications  électroniques pour se livrer à des activités  illicites ou diffuser des contenus préjudiciables,  en particulier lorsqu'ils peuvent porter atteinte  au respect des droits et des libertés d'autrui, y  compris les atteintes aux droits d'auteur et aux  droits voisins

 This clause would have been included to buttress France’s Hadopi (3-strikes) law in respect of the ISP liability to support copyright enforcement measures. Interestingly,  as pointed out by the French technology website Numerama, the word préjudiciables  has no meaning in this context.

 The French government’s transposition of Articles 20 and 21   also includes a translation of the provision on ‘conditions limiting access to and or use of services and applications’ – only the French are clearer and just say ‘restrictions’: 

 Les restrictions à l’accès à des services et à leur utilisation, ainsi qu’à celle des équipements terminaux fournis.

 This means that ISPs have to inform users in the contract and in other material, of the restrictions they place on the service. Those restrictions would include blocking Skype, for example.

Again, Numerama highlights the French government’s   objective to guarantee net neutrality, as stated by the French industry Minister, Eric Besson, at the beginning of the ordonnance itself. Far from being a guarantee of net neutrality, the ordonnance includes a built-in dis-respect for it. Indeed, the French ordonnance makes clear that terminal equipment, as well as services, may be subject to restrictions.

 

The full story on the Contracts clause in the Telecoms Package is discussed in my book The Copyright Enforcement Enigma: Internet Politics and the 'Telecoms Package'

PLEASE CITE AS: Monica Horten (2011) France puts copyright in ISP contract http://www.iptegrity.com 1 September 2011 . This article is licensed under a Creative Commons License for  non-commercial purposes, with the author attributed.

Iptegrity.com is the website of Dr Monica Horten,  policy writer and Visiting Fellow at the London School of Economics & Political Science. She is an independent expert on the Council of Europe Committee on Cross-border flow of Internet traffic and Internet freedom (MSI-INT). She was shortlisted for The Guardian Open Internet Poll 2012. Iptegrity  offers expert insights into Internet policy. Iptegrity is read by lawyers, academics, policy-makers and citizens, and cited in the media. Please acknowledge Iptegrity when you cite or link.  For more, see IP politics with integrity

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