But what of intermediary liability? Iptegrity has examined the Lescure report.

The French government, led by the Socialist President Hollande, is to partially reverse the controversial 3-strikes (graduated response)  law and re-modelling it in what government hopes will be a more user-friendly format. France  is also bringing in a range of new measures that are intended appease the copyright industries. Among them is a proposal to tax devices such as smartphones and tablets. Whilst these measures will grab the headlines, there are other proposals lurking beneath the surface that are less clear, for example, the French government’s approach to intermediary iability in this context.

 The proposals stem from a report commissioned by the Hollande government from the theatre director and former television executive, Pierre Lescure. Whilst they are wider in scope than copyright enforcement, it is likely that the report was commissioned at least in part to provide political cover for the government in revising the unpopular Hadopi or 3-strikes law.

 The topline recommendation of the Lescure report  is to ‘re-orientate the fights against piracy’ to focus on commercial-scale  counterfeiting. In that regard, it repeals the third strike of the 3 strikes law – that it, suspension of Internet access ( cutting people off the Internet). In parallel, it reduces the level of fine for copyright infringement online – down from €1500 to just €60.

 The authority that oversees the 3-strikes  measures, known as Hadopi, is to be stripped down and its remnants are to be housed within the audio-visual regulatory body known as the CSA. To all intents and purposes, Hadopi as we knew it, is being killed off.

 These changes  move French copyright policy  away from criminalising people for file-sharing, and towards a more ‘educational’  policy. At least, that is the official line. 

 It  certainly does seem to reflect a significant  softening in the policy, and may make copyright policy  more palatable within the French Socialist Party which has been consistently opposed to the sanction of cutting people off the Internet.

 In parallel, there are a raft of other measures to try to get the reclacitrant French film industry to modernise. This includes trying to get films made available online in a timely way after their cinema release.

 And the report seeks to encourage a widening of the scope of the exceptions to copyright, enabling wider use of copyrighted material both online, and for educational purposes. 

 The other headline measure is the the smartphone tax. This  is an attempt to replicate the old-style photocopier levies  in the digital environment. It is permitted under EU law, but the problems arise on implementation. Previous attempts to introduce levies on digital devices have run aground because the manufactures obfuscate and use tactics designed to avoid coming to any agreement. Another difficulty is the determination of how revenue will be distributed.

 However, buried in the Lescure report, there is a discusson  about alternative measures to address alleged copyright infringement on the Internet.  On this issue of intermediary liability, the report is less clear. It  does seem to be calling on search engines and hosting intermediaries to police their own sites, although it is only in the context of a voluntary good practice arrangement.

 The positive element in this discussion is that the report makes clear where its red lines are. Citing the Sabam v Scarlet case in the European Court of Justice, it says that asking ISPs to block content, or seizing domain names, represents a ‘serious violation of the freedom of communication and could have dangerous collateral effects’.

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More info:

French NGOs La Quadrature du Net and April present  critical opinions  of the Lescure report.

Numerama comments on the aspects of the Lescure proposals to support the public domain

I am quoted in the New York Times report on Lescure .

  For the background to the Hadopi law and the French Socialist position, see my book The Copyright Enforcement Enigma  Internet politics and the Telecoms Package

  This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content,  please cite my name as the  author, and provide a link back to iptegrity.com.  Media and Academics – please cite as Monica Horten, Hadopi slashed & smartphones taxed in French 3-strikes re-modelling,  14 May 2013,  in www.iptegrity.com.  Commercial users - please contact me.

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