The Hollande government in France seems unable to decide on a policy  position for copyright.  Not long ago,  it shunted the Hadopi authority into a siding,  now  it is calling other Member States aboard for new  Europe-wide anti-piracy  measures.

 In a new position  paper, issued at the European Council of Ministers meeting in Brussels this week, the French government has called for a new European plan to address  copyright infringement and counterfeits. Using rights-holder language, it says it wants to ‘re-launch of the fight against piracy’ in Europe,  and it puts forward  possible avenues for the EU to explore.  Most concerning, is its proposal to

promote the development of agreements between the Internet companies and the rights-holders. The paper does not elaborate on this proposal. However, ‘voluntary agreements’ in this context are highly problematic.

 Voluntary agreements  are only ‘voluntary’ because they are not enshrined in legislation. However, they  are only likely to happen  with  the backing of the  government, and this is root owhy there are so problematic.

 Under European law, any such measures that are intended to restict access to the Internet, must respect fundamental rights under the European Convention on Human Rights. That means, the rights to freedom of expression and the hotly contested   - currently – right to privacy. There is also the oft-forgotten right to due process.

 These rights must be respected by the firms being asked to implement the so-called voluntary measures, and therein lies the first difficulty.

 For example, the right to due process implies a court procedure, even if only a cut-down version such as the one used in France’s Hadopi  law. Commercial firms implementing punishment measures against individuals  would be in breach of this right. The outcome may well be that the measures will be limited to the sending of notices only, but even then, the measures need to be carefully designed to avoid falling foul of this right.

 In other words, it is not appropriate for commercial businesses to be asked to take action against individuals, on behalf of another business, without the State ensuring that due process is followed.

 Voluntary agreements in this context, are entered into by businesses from two different industries, with conflicting financial interests. They must be formulated in a way that will not fall foul of the shareholder’s interests, which means that costs and liabilities must be carefully negotiated. That is a not insignificant difficulty that is very often overlooked. It means that the negotiations will be lengthy and complex, and the ultimate outcome may be  unsatisfactory for both sides.

 And, as the Hadopi experiment has shown, the State-managed route is riddled with problems too and has thus far not proved to have the effect that was sought. ( See Hadopi turns three – bon anniversaire? )

 A separate proposal from the French government is to regulate platforms and applications. Once again, the text is short on detail. Given the French attempt to regulate some of Google’s activities, it’s possible that is what it has in mind. The risk is that 'regulation of platforms' could become a private policing of copyright.

It does seem as though the Hollande government is becoming a little schizoid in its policy for online copyright enforcement. However, with EU’s overriding priorities now shifting towards privacy regulation and controlling espionnage against its own governments, the best hope for these French copyright  proposals is that they simply are buried.

To read more about copyright enforcement (so-called anti-piracy) measures, the Internet and fundamental rights, please see my latest book A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms

 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, 2013, France wants to relaunch the EU fight against piracy  in Iptegrity.com,  25 October 2013.  Commercial users - please contact me.

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