In the second week of December a wikileaked US diplomatic cable from February 2010 revealed the US ambassador’s scepticism at the motivations behind the Romani Law (Decreto Romani), nominally the Italian implementation of EU Directive 2007/65 on Audiovisual Media Services.
The cable described at some length how the law’s provisions could be exploited to the benefit of the Berlusconi’s media empire. Amongst other matters, the decree promised greater action on copyright, an area in which the Italian government had hitherto been somewhat disinterested. In fact the design of the Romani Law was driven largely by the need to restrict the commercial activities of Sky, the only effective private sector competitor to Mediaset.
From this perspective the legislation is in historical continuity with its predecessor, the Gasparri law, whose purpose was to ensure an undisturbed transition of media power in the shift from the analogue to digital framework. Yesterday’s incumbents – Berlusconi and RAI – would also be tomorrow’s. The Gasparri law was ultimately the target of a complaint procedure by the European Commission begun in 2006.
Just a couple of days after the leak, on December 17th, the Italian communications authority, Agcom (Autorità per le garanzie nelle comunicazioni), under the powers assigned to it by the Romani Law, announced new measures to be used against sites hosting materials that infringe copyright.
What is Agcom?
Agcom was established by the Maccanico law in 1997 as an agency somewhat independent of the government; of its eight members four are selected by the Parliament and the other four by the Senate. The authority is charged with overseeing infrastructure and competition in the communications sector, and even-handedness in broadcasting. Currently it is under pressure from Minister Paolo Romani to punish a program, Anno Zero, presented by Berlusconi critic Michele Santoro, on the grounds of broadcasting “claims of a gratuitous character, derogatory and seriously damaging to the dignity and decorum of eminent political personalities” on several occasions in January, ie allegations against Berlusconi in relation to soliciting child prostitutes aka the Ruby case…
Marketing Enforcement Strategies
Subsequent to Agcom’s announcement of the new measures, the ‘anti-piracy’ organization FAPAV (Federazione Anti-Pirateria Audiovisiva) held an event in Rome in mid-January to present the Italian aspects of a study commissioned on the detrimental effect of copyright infringement on employment in Europe, produced by Tera Consultants under commission by BASCAP and the International Chamber of Commerce.
As usual improbably large figures were thrown around (billions of euros and 22,000 jobs lost!) with no reference made to the provision of the underlying ‘raw data’ by the IFPI (music industry lobby) and FIMI (their Italian satellite) and a marketing company, IPSOS. No discussion of methodology either, perhaps advisedly so, as the Social Sciences Research Council (who are conducting similar investigations) had publicly criticised it when the report was initially published in March 2010. Not that any of the journalists reporting the event seemed to care: as usual they reproduced faithfully what they were told .
FAPAV had invited Nicolas Saydoux, head of French trade group and antipiracy lobby ALPA, to entertain the audience with a fairytale: how a strategy combining 3 strikes legislation and an increased range of legal products on the market had succeeded in reducing piracy levels by 85% – in less than six months!
Obviously FAPAV would like to see similar measures taken against users in Italy but for now they will have to make do with Agcom’S proposals, namely a system whereby copyright owners can complain to sites hosting their materials or linking to other sites which do, and request the material’s removal. Where no action is taken within 48 hours, the complaint is passed to Agcom, who, after examination of the offending material, will demand its removal. In the absence of compliance fines can be imposed.
To deal with sites based outside of Italy, it is proposed having checked that infringing content was available, Agcom could order providers to ban the IP or DNS so as to prevent access. Such an approach is already in use against foreign gambling sites, and notoriously also in place against the Pirate Bay – not that this has stopped many Italians from circumventing these controls on access to TPB.
What is really interesting about all this is that Agcom’s powers would not require any judicial order. There is no judge involved. Attentive readers will be struck by the similarity to the first version of Hadopi in France. Undoubtedly the positive feelings of FAPAV towards this scheme are driven by the same rationale that was behind Hadopi 1: accelerate the process of shutting down the alleged infringer by recourse to administrative rather than judicial mechanisms. Or to put it more simply, eliminate due process.
Amazingly for such a controversial system it is not being created by parliament, but rather through an administrative order on the part of Agcom, under the terms set out by the Romani decree. The proposed order was released in December and is subject to two months ‘public consultation’ prior to being enacted. A campaign has been started by an alliance of organizations including the consumer groups, lawyers, and business. In recent days they have launched a site to coordinate opposition to the measures.
In a separate decision Agcom has also decided that sites with a turnover of more than 100,000 euros per year based on user-generated content will be subjected to the same legislative requirements as TV stations – restrictions on the provision of content to minors, obligations to individuals defamed etc – and are to be treated as having responsibility for the content on their sites.
Most heavily impacted by this is youtube. In 2008 Mediaset initiated a case against youtube/google, demanding 500 million euros in damages of 500 million euros for copyright infringement of Mediaset programs on their video platforms. This resulted in two decisions against Google, in December 2009 and February 2010, regarding liability for hosting parts of the Italian version of Big Brother (Grande Fratello), a franchise owned in Italy by R.T.I.
Agcom’s decision regarding liability for user-generated content may be of significance in determining the eventual outcome, but this will also hinge on clarification of the more general liability of intermediaries in Italian law, currently a source of great confusion.
Sarkozy’s grand plan against the pernicious plague of of p2p users came unstuck last june, when the Constitutional Court struck down the core of the law. Undeterred, his government immediately restarting the legislative process. Given the UMP’s large parliamentary majority, and the umbrage taken by their leadership at the opposition to this law, the process was fast-tracked, and ultimately approved by the National Assembly and Senate, who voted in favour of the new version last tuesday September 22nd. This post will cover developments up to the time of the law’s approval, while the next will detail the new challenge before the Constitutional Court submitted in recent days.
Change of Personnel at the Ministry for Culture
On june 23rd, Christine Albanel was replaced by Frederic Mitterand as Minister for Culture. the latter is the nephew of former president Francois Mitterand and comes from outside the ranks of the UMP. Steering the redrafted Hadopi law is his first assignment. Some critics of the law were initially hopeful that he might be more receptive to their objections, but this hope was misplaced. Christophe Tardieu, the Ministerial aide who saw fit to forward a mail critical of the law by Jermore Bourreau-Guggenheim to his erstwhile employer TF –resulting in him being sacked – was made head of the National Dance Council in August; is that a punishment or a reward? Meanwhile Bourreau-Guggenheim remains unemployed.
Constitutionality by the Back Door?
As described in a previous post, a key constitutional problem with Hadopi 1 was that it assigned power to negate a fundamental right (internet access) to a non-judicial authority, namely the Committee for the Protection of Rights. The purpose of such a system was to create an apparatus capable of issuing hundreds of thousands of warnings and disconnections per year, a volume possible only via an administrative rather than a judicial procedure. Forced to reintroduce judicial authority, the government has elected to use an expedited legal procedure know as the ‘penal order’ (ordonnance penale).
This mechanism is otherwise employed principally for dealing with minor road traffic offenses and in a couple of other areas. It relies on the fact that these are instances where there is little scope to dispute the facts: your car is clocked exceeding the speed limit, you break a red light on camera etc. These cases are dealt with by judges summarily, requiring on average about five minutes per case.
In the case of the alleged copyright infringements under Hadopi 2, it is sufficient that your internet protocol address is flagged transferring proprietary content, and that this is communicated to the Committee for the Protection of Rights. If satisfied by the claim, the judge can then order the suspension of the user’s internet connection for up to a year in the case of copyright violation, or one month where abuse of the line is deemed to derive from negligence (failing to prevent other parties from using the connection for infringement). Under the ‘penal order’ procedure the public prosecutor puts the defendant on notice, but the latter receives no actual hearing, has no legal representation, and the judge is not required to provides grounds for the decision. The judge may also make an order enabling the owners of the copyrighted work to make a damages claim – a facility normally unavailable under the ‘penal order’ and requiring an amendment of the penal procedural code in itself.
Users targeted under this procedure will have 45 days to make a challenge, in which case the charge will be dealt with in court under the adversarial procedure. Should they take this route they expose themselves to a greater range of sanctions. Under the 2005 DADVSI law, copyright infringement is punishable by up to three years imprisonment and 300,000 euros in fines, although in practice these have not been applied. According to the impact study prepared to accompany the law this expedited system aims to deal with 50,000 cases a year and will require 26 judges to be dedicated to its administration. The new legislation also provides for fines, both for ISPs who fail to implement disconnections, and for disconnected users who attempt to revive their access by switching to another provider.
Interestingly, despite the tam-tam of apocalyptic prophecies from the media industry regarding piracy, the most recent European cinema attendance statistics show growth of nearly 4% in the five major markets (1). At the policy level there remains no clear case that repression of p2p will lead to greater funding for cultural production.
Organizations such as UFC Que Choisir and La Qaudrature du Net, politicians from PS, Greens, Communists and the Centre, as well as public figure such as Jacques Attali have continued to oppose against the law, mourning its antiquated premises. Attali has underlined that artists in favour of a Hadopi style solution risk embracing an industry framework which will see them squeezed between the majors and the ISPs. Commenting on the government’s current prorities he remarked:
“It has a certain coherence. That of defending a few stars who are politically highly visible, but who represent nothing. And whom, if one really thinks about it, are overvalued with regard to their artistic utility, not to mention their social utility. They don’t represent the real french creativity.” (2)
In response to arguments that the new legislative framework will strengthen intermediaries rather than artists whilst failing to incentivize the expansion of legitimately available content online, Frédéric Mitterrand has commissioned a report on these topics by three grandees going under the name of the Zelnik Commission. Their report is due in early November. This is almost certainly a prelude to a proposal to introduce an additional tax on internet subscriptions, money which will be passed on on to collection societies. Notionally this would be an expansion of the rules currently applying to blank media. Such a levy on other media supports is considered as compensation for their use in the making of private copies – reproductions not permitted in the online environment. The upshot is that users will end up both taxed on their connection and face punishment should they share proprietary works.
But notwithstanding the continuing climate of unreason, history obstinately refuses to be repealed: users continue to share massive amounts of files and introduce new material into the networks.
Joseph Steglitz put it well in an op-ed in Liberation on September 16th, questioning the logic behind reliance on intellectual property perspectives and remarked:
“Those producers whose business consists in delivering music from artists to consumers have no reason to exist today. It’s like trying to save the coach and horse industry in the age of the automobile.” (3)
Good news from France: the Internet and Creation Law, pushed through the legislature by Sarkozy’s UMP, was found unconstitutional on several counts by the France’s Constitutional Council on wednesday. Below I have translated what I think are the most salient sections of the first part, concerning (1) the failure to comply with the presumption of innocence (paragraph 17), (2) reversing the burden of proof ( paragraph 18), and (3) imposition of punishments without involvement of the judiciary (paragraph 16). There are also others dealing with privacy which I will return to later.
What this decision means, is that right to internet access has actually been constitutionalized by the domestic authority. As a consequence, the fate of the campaign for Amendment 138 to the Telecoms Package at European level loses some significance, as it had basically the same aim. The whole purpose of Hadopi has now been negated: a judge will have to be involved where intenet connections are to be cut off. This will slow down the wheels of the administrative machinery, which was designed for the issuance of tens of thousands of warnings on a quasi-automated basis.
Christine Albanel, the Minister in charge of Hadopi has promised to amend the law to return it to constitutionality and has pledged that the first warnings to users will begin by the autumn. But we’ll see about that. This may be just the first sand in the motor of a tricky and unpopular process.
Meanwhile the collective “Pour le Cinema” welcomed the decision, and reaffirmed their commitment as part of the platform “Création Public Internet” (together with la Quadrature du Net, UFC QueChoisir, SAMUP and French branch of the Internet society), to organise a series of public hearings on digitalization and creation in the autumn, with the goal of devising solutions to enable cultural production without reliance upon repressive mechanisms against the public.
Decision 2009-580 DC, 10 June 2009
12.Taking into account the terms of article 11 of the Declaration of the Rights of Man and Citizens of 1789: “The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law”; that in the current state of communications technology, and with due regard to the generalized development of online communications services, as well as the importance of these services for participation in democratic life and the expression of ideas and opinions, this right implies the freedom to access such services:
13. Taking into account that property is amongst the human rights enshrined by articles 2 and 17 of the Declaration of 1789; that the aims and conditions for the exercise of the right to property have seen an evolution since 1789 characterized by an extension of their field of application to new domains; that amongst the latter appears the right, for the holders of copyright and neighboring rights, to enjoy their intellectual property rights and to protect them in a framework defined by the law and by France’s international commitments; that the fight against methods of infringement which are developing on the internet corresponds to the objective of safeguarding intellectual property;
16. Taking into account that the power to sanction enacted by the clauses under challenge empowers the commission for the protection of rights, which has no jurisdiction, to limit or prevent internet access to subscribers as well as other persons who may benefit from it: that the competence granted to this authority is not limited to a particular category of people but rather extends to the whole population: that its powers could lead to restrictions on the right to express oneself and communicate freely, notably from their own home; that in such circumstances, having regard to the nature of the freedom guaranteed by article 11 of the Declaration of 1789, the legislator could not, irrespective of the guarantees surrounding the pronouncement of punishments, grant such powers to an administrative authority with the purpose of protecting the rightsholders of copyright and neighboring rights;
17. Taking into account, moreover, that by virtue of article 9 of the Declaration of 1789, all men are presumed innocent until found guilty; that consequently the legislature cannot in principle institute a presumption of guilt; that nonetheless, in exceptional cases, such presumptions can be created, notably for petty offenses (matière contraventionnelle), so long as they are not conclusive in nature, that the rights of the defense are observed, and the facts reasonably infer the probability of liability
18. Taking into account, in this particular case, that it follows from the clauses under review that carrying out an act of infringement from the internet subscriber’s address constitutes, according to the second paragraph of article L.331-21, “the materiality of the failures defined in article L. 336-3 “; that only the holder of an internet access subscription can be the target of the punishment put in place by the clause under review; that in order to be exonerated, he must, by virtue of article L. 331-38, produce proof of such a nature as to establish that the injury to copyright or neighboring rights resulted from fraud on the part of a third party; that by thus inverting the burden of proof, article 331-38 institutes, in breach of the requirements of article 9 of the Declaration of 1789, a presumption of guilt against the holder of internet access, enabling the imposition of punsihemnets both privative and in restriction of rights against him;
The law was passed just a moment ago: 296 – 233.
Next stage in adoption is a vote in the Senate on May14. Given that the socialist senators supported it in previous readings, unlike the PS MPs in the Assembly, there will be little opposition.
Sunday’s Liberation reported an announcement from the French Ministry for Culture that they had identified the staff member responsible for passing Jérôme Bourreau-Guggenheim’s letter to his MP on to his employer TF1, leading to his sacking. According to Electronlibre, his name is Christophe Tardieu and he is Minister Christin Albanel’s assistant director. He offered his resignation, rejected by the Minister, and has been suspended for a month.
National Spyware Program
An element of Hadopi which hasn’t received much or enough attention as yet, is a section which specifies steps that can be taken by computer users to ensure that they will not be found liable under the new regime. The following is a rough translation of the relevant sections, taken from the text of the law in its current state, as found here (final version as amended and adopted by the Senate on May 13th, here). Bear with me, it is torturous, some explanatory notes are added in bold…
« Art. L. 331-30. – After consultation with those developing security systems designed to prevent the illicit use of access to a communication service to the public online (internet!), or electronic communications, people whose business it to offer access to such a service (ISPs) as well as those companies governed by title 2 of the book (Intellectual Property Code) and rightsholders organizations (ie SACEM etc), the High Authority will make public the pertinent functional specifications that these measures must comprise so as to be considered, in its eyes, as valid exoneration of the responsibility of the access subscriber (internet user!) as defined in article L. 336-3.
At the end of a certified evaluation procedure, and taking into consideration conformity with the specifications set out in the previous paragraph and their effectiveness, the High Authority will issue a list certifying the security software whose use will validly exonerate the access holder (internet user!) from their responsibility under the terms of article L. 336-3. This certification will be periodically revised.
Mmmh. So what the law intends is to set up a meeting between consultation with security software vendors, antipiracy organizations and ISPs to decide what software you need to install on your machine, so that they can be sure that you behave yourself. If you don’t fancy installing their device, then you’ll just have to swallow any liability consequent to someone else using your machine or accessing your connection.
Art. L. 336-3. – The access holder to an online service of communication to the public ( internet!) or electronic communications is obliged to ensure that thus access is not used for purposes of reproduction, display, making available, or communication to the public, of works protected by copyright or a neighboring right, without the authorisation of the holders of those rights set out in books 1 and 2 (of the Intellectual Property Code), where required.
Failure to satisfy the obligation set out in the preceding paragraph can result in a punishment according to the conditions defined by article L. 331-25.
No sanction can be taken regarding the access holder in the following cases:
1° If the access holder (internet user!) installed on of the security systems appearing on the list mentioned in the second paragraph of article L. 331-30;
2° If the attack on the rights set out in the first paragraph of the present article is the work of a person who has fraudulently used the access to the online communication service;
3° In case of force majeure.
The failure of the access holder to the obligation defined in the first paragraph will not have the effect of imposing criminal liability.
Apart from finding the last paragraph a bit puzzling – the list of exceptions exempts from all liability, the coda refers only to criminal liability – and the language atrocious, it’s obvious the whole framework is mad and unacceptable. Imposing such strict liability unless users agree to install spyware, almost certainly connected to remote databases, is intrusive as well as dangerous.
How can this not amount to a wholesale surveillance of online activity? Who will have access to the data collected and transmitted by these ‘security systems’ (sic), and how will that access be managed? Will the security systems be transparent (free software/open source), or proprietary black-box money-makers, prone later to surrender to a veritable orgy of exploits? If proprietary, how will it be interoperable with free operating systems such as GNU Linux?
‘Certification’ (labellisation) is a phrase commonly heard in recent weeks, and the government wants to ‘certify’ legal content providers (Article. L. 331-21-1), and ultimately looks forward to a set of digital fingerprints corresponding to the works in their repertoires. Presumably the approved ‘security systems’ are intended to be able to interact with a database of such objects.
The proposals were already criticized by the French Free Software advocacy group APRIL in March. Attempts by the opposition to have a member of the French data protection agency, CNIL, designated a seat on the Hadopi ‘High Authority’ were rejected, so there won’t be any reassurance coming from that direction.
With the clarification of the law, and its pending passage into the statute book, more attention needs to be focused on these technical provisions and the future process through which they will be defined.
For a guide to my various posts on Hadopi, please click here.
Rejected by a poorly attended chamber on 9th April, the government immediately vowed to reintroduce legislation against p2p users, a matter close to President Sarkozy’s heart. Consequently the Creation and Internet law (Hadopi) has been under discussion in the French Parliament, once again, since April 29th and will come to a vote on May 12th.
During the debates on the transposition of the EU Copyright Directive in 2005, known as DADVSI, clear differences in approach towards the filesharing phenomenon were manifest. Most of the UMP (conservative majority) saw the practice as a threat to be repressed through increased legal sanctions. The PS (soft left opposition), together with some centrist and UMP dissidents, preferred the imposition of a supplementary charge on broadband connections in exchange for a compulsory license giving the right to share media online. This would generate a revenue with which to compensate rightsholders, and would be distributed via existing collecting societies. To the government’s surprise an amendment inserting the compulsory license proposal garnered enough support to be carried in December 2005.
A second reading of the bill in March 2006 saw the amendment removed, and it was absent from the final text. But the debate did not disappear, and during the presidential election the two main candidates took opposing stances on the issue: Segolene Royal supporting the global license, Nicolas Sarkozy opposing it absolutely. He promised to establish a commission to review the effectiveness of DADVSI and propose additional measures, having already declared himself favourable to a system of graduated response – what has become known as “three strikes”.
Following his election, Sarkozy convened a sectoral summit at the Elysée, which led to a new set of proposals known as the Olivennes-Elysées accords in November 2007. Billed as a watershed agreement between ISPs, ‘creative artists’ and the state authorities, the proposals were presented as a means to provide a proportional deterrent to filesharing whilst expanding the availability of legitimate services. Hadopi is the deterrent, and is a pet-project of the French President. Its rejection was taken as a personal affront, and Sarkozy invited a group of sixty artists and producers to the Elysée on April 22nd to reassure them of his determination to get the law passed.
But in the interim, matters have been complicated on several fronts.
The first of these has legal significance: on Wednesday the European parliament voted in favour of the so-called Bono amendment 138/46 to the Telecoms Package (TP) (404 – 57, 171 abstentions). The wording is as follows:
“Applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a “prior ruling by the judicial authorities,” notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened in which case the ruling may be subsequent.”
This limits the power to disconnect a user’s connection to procedures involving the judiciary, an element absent from the process Hadopi is intended to establish. This obligation will undermine the whole purpose of Hadopi, conceived as a rapid means to deal with the huge number of p2p users in an administrative fashion. Involvement of a judge in each case of disconnection will slow the process down massively and make it more costly. Indeed this was the very aim of amendment 138, proposed not coincidentally by two french euro MPs, Guy Bono and Daniel Cohn-Bendit, so as to preemptively emasculate Hadopi. This is the second time 138 has been been endorsed by a large majority in the European parliament. On the first occasion the French government later blocked the amendment in the Council of Ministers. Thus when the telecoms package returned to Parliament, it had been stripped from the text and need to be reinserted by another vote.
Reintegration of 138 poses two problems for the French government. If the package is ultimately approved and becomes law, then Hadopi will be incompatible with its provisions. If, alternatively, they attempt to block it again at European Council level (whose next TP meeting is June 12th), it will generate further delays for a TP which addresses economic interests far greater than those of entertainment companies.
Scandal at TF1: Sacked for Expressing an Opinion
Yesterday’s Liberation carried a detailed report on the dismissal of a TF1 (Télévision française 1) employee for having expressed his opposition to the law. TF1 is a private TV network, whose boss Martin Bouygues is a close friend of Sarkozy. Jérôme Bourreau-Guggenheim was employed there in the web innovation unit. In February he wrote a personal mail to his MP, Françoise de Panafieu (UMP), expressing his opposition to the law and outlining his reasons as well as explaining his involvement in the sector. At the beginning of March he was summoned by his boss at TF1 online, Arnaud Bosom, who read his letter back to him, verbatim. Bosom explained that the letter had been forwarded to TF1’s legal adviser, Jean-Michel Counillon, by the Ministry of Culture! In April he was summoned to a disciplinary meeting and was sacked on April 16th.
On April 16th, Jérôme Bourreau receives his letter of ‘dismissal for clear deviation from the strategy’ of TF1′. A shocking letter, which Liberation has a copy of: the group criticizes their employee for his mail to Panafieu, ‘in which he emphasizes, as an employee of the company, his hostility to the Creation and Internet law. And TF1 writes black on white ‘This correspondence reached us through the cabinet of the Ministry for Culture who forwarded it that same day to TF1.’
Bu the best bit is still to come, the human resources department writes: “We regard this attitude as an act of opposition to the strategy of the TF1 group (for whom) the adoption of this law is a high priority”. Before criticizing Bourreau for having ‘put the group in difficulty, his position having given the appearance of a lack of agreement between a ‘web’ manager and the official position as expressed by the company’s directors.”
Bourreau has started proceedings for unfair dismissal. Even supporters of Hadopi have been shocked at this event and a real scandal is brewing.
TF1 is heavily involved in DVD business. Under pressure over the sacking, they issued a communique where they explained that he had been dismissed for the ‘particularly radical positions, repeatedly expressed in public’ against Hadopi. Such positions ‘are contrary to the official declarations of the the TF1 Group, famously favorable to the law‘ and ‘incompatible with his responsibilities within e-TF1, a subsidiary of the group responsible also for anti-piracy work on the internet.’
But note that there is no further explanation as to the source of their employee’s letter. Nor is there any specification regarding his ‘public’ expressions of opinion, nor, specifically, any utterances made in a context which could be construed as antithetical to his role within TF1. In fact, this man’s opinions were apparently not at all public, until they fired him after receiving personal correspondence between him and his MP. The guy was sacked for having the wrong point of view. Full stop.
Minister Christine Albanel insists that she did not relay the information to TF1, and word is that there is hunt on for the snitch. Given that the whole framework of Hadopi is built around identifying liability by means of IP addresses, one hopes that it should not be too hard for them to find out who forwarded the mail from the Ministry.
‘Artists’ Against ‘Socialists’ (PS)
I’ve already chronicled elements of the war of words conducted through the media between pro (Tavernier et al) and anti Hadopi factions (Branco/Deneuve, Sci-fi writers). In the last two weeks there have been further salvos: first, another letter from the Tavernier coterie  published in Liberation and titled, “A Bad Movie at the Parliament”, accusing socialist deputies of trickery (!) against the law. Alleging that the bill’s opponents had no feasible alternative to current copyright protections, they railed against the compulsory license (licence globale) as unsuited to cinema; here, they say, monetization relies upon exclusivity, and freedom to share works online would erode that to the point of collapsing their markets. They continue:
“It goes without saying that the meager offering of the ‘creative contribution’ (current formulation of the compulsory license) will never attain the levels of current financing, which the cinema needs to remain diverse and creative.
Or else it’s another type of cultural society that they want to build, a society where support for diversity in cinema is drastically reduced, and where the most fragile works, those least expected by the market, will be cast-off. We refuse that utterly.”
PS deputies replied, describing Hadopi as a framework that sets artists against users, and which does so whilst attempting a generalised monitoring of online activity. Secondly they argued that the law would provide no additional financing for creation in a situation where filesharing is guaranteed to continue. According to estimates, their proposed alternative – the ‘creative contribution’ – would generate a billion euros a year to finance creation and conclude:
“The digital world makes possible one of the Left’s dreams: access to culture for the all. It necessitates a rethink of outdated economic models, their rules and financing. The legislative prohibitions being attempted can merely delay this change. Do we wish to submit or to channel it? Do we want to guarantee freedom for creators and for internet users, or must everyone end up losers? Do we want culture to be a commodity or something different?”
A few days later another recriminatory letter attacked the PS’s position, this one signed by five self-identified ‘leftwing artists’. The French press has paid some attention to these critics largely because cultural circles have been historically on the moderate left, a tendency consolidated during the presidency of Francois Mitterand in the 198s. On coming to power in 1981 he doubled the budget of the Ministry of Culture and appointed Jack Lang, at that time involved in theatre, as Minister. Little wonder then the PS won so many friends amongst artists in the 1980s – they were giving away money! Many of the artists in the pro-hadopi camp are, well… ageing, and the line of division in the cultural world appears more generational than anything else, although there are obviously exceptions.
The Future of the Cinema (Theatre)
Next it was the turn of independent cinema operators to oppose the law. Repeating many of the criticisms made by others, they go on to meditate on the role of theatres in all this:
“If cinemas still have a future, it is to be a place of exchange and sharing, and not a place where cinemagoers are placed under surveillance with infrared binoculars (to catch people shooting ‘cams’)… cinemas have a reason to exist and that is to be a place for collective experience, and to be fully embedded in neighborhood life.
How could we have lost the sense of what we do to the point of limiting individual rights and the dissemination of works in the name of preserving creation? By setting artists against their public, Hadopi empties of meaning the goal of all creation: to be seen, heard and shared.”
Elsewhere their concerns extend to the technology for digital delivery and projection of films, worrying that ISPs may attempt to monopolise these services, but hoping that they can take advantage of digitalization to diversify their programs.
Geeks in the Streets…and the Fiasco to Come…
Meanwhile street demonstrations against the law took place in French cities on April 25th, and in Paris as part of 1st May. Organized online, they’ve succeeded in mobilizing decent numbers.
Notwithstanding all this opposition, it is inevitable that this bill will be passed. Sarkozy is full of wrath at the lèse majesté of its previous rejection, and the process now seems beyond rational analysis. The atmosphere was best captured by an anonymous MP from Sarkozy’s UMP, who stated:
“We’re headed towards a fiasco, but we’re obliged to go there.”
(1) see La Quadrature du Net for more detail.Back to post 1
(2) Somewhat surprising to find Costa-Gavras on the list; one time correspondent of the Uruguayan Tupamaro revolutionaries depicted in State of Siege, and director of Z, a compelling account of Greece just prior to the regime of the Colonels.
The full list of signatories: Jean-Jacques Annaud, Patrick Braoudé, Christian Carion, Alain Corneau, Dante Desarthe, Jacques Fansten, Costa-Gavras, Laurent Heynemann, Pierre Jolivet, Gérard Jugnot, Philippe Lioret, Radu Mihaileanu, Claude Miller, Jean-Paul Rappeneau, Coline Serreau, Bertrand Tavernier, Pascal Thomas, Danièle Thompson, Nadine Trintignant, Bertrand van Effenterre, Christian Vincent et Roschdy Zem. Back to post 2
Science-fiction writers have also gotten involved in the debate on Hadopi. On Monday a wide swathe of the sci-fi world – writers, critics and publishers – expressed their opposition to the law, below is a full translation of their open letter to the public.
To see my more recent posts on Hadopi, click here.
Who Will Control the Future?
We the people of science-fiction, writers, translators, illustrators, critics, commentators, essayists, bookshop-owners, bloggers, publishers and collection editors, must express through this text our opposition to the Creation and Internet law.
It would be a truism to state that science-fiction concerns itself with the future and that many of its participants have denounced the possible, even probable, pitfalls (dérives) of industrial and technological societies; George Orwell’s name comes immediately to one’s lips, but also that of John Brunner, Norman Spinrad, Michel Jeury, J.-G. Ballard, Frederik Pohl, Cyril M. Kornbluth, and many others besides.
Science-fiction can detect the seeds of these pitfalls in the present, because it is precisely from the present that possible futures emanate, and it is in the present that the world of tomorrow is decided every day.
The distrust of new technological developments and the changes which result, the fear of the future and the desire for control of a society obsessed with the discourse of security… all that has already been addressed in sci-fi, and if there’s one thing which it has taken into account it’s that the techno-sciences are the principal cause of change in modern societies. From such changes. in course or in germ-form, no-one can know the effects but we do know that erecting barriers or walls against them results only in seeing them fall one day, in a more or less brutal manner. So rather than forbidding, wisdom, but also realism, should spur us to allow free reign to the freedom to innovate and create. The future that we have to invent each day should not be based on fear, but on sharing and respect.
The Creation and Internet law, rejected by the National Assembly on the 9th of April last, will be presented again to our national representatives at the end of the month.
This law, which we are told will protect artists’ rights and copyright in general, seems to us a Trojan horse, deployed to try and establish control over the internet, and is thus a threat to freedom of expression in our country.
Artists, creators, all those cultural actors without whom that word would be emptied of meaning, are being instrumentalised for the benefit of a law which, we must remind everyone, contains measures to filter the net, install spyware on individuals machines, and suspend internet connections without the involvement of a judge on the basis of IP numbers (whose lack of reliability has long been established) collected by private companies, and the extension of measures initially conceived for police anti-terrorist activity to the sharing of files between individuals.
Whilst deeply attached to copyright, which represents the sole or principal source of income for many precarious intellectual workers in our ranks, we protest against those who brandish it incessantly to justify measures which, while technically unfeasible, are certainly dangerous, and whose potential to erode our rights is only too obvious in the eyes of those of us whose daily work involves the scientific, political and social thought which is at the core of science-fiction.
Likewise, conscious of the interests and value of creative communities, we also protest against the danger that this law poses to the universe of culture distributed and shared under free licenses, which constitutes a wealth accessible to all.
The internet is not a chaos but rather a collective work, where no actor can demand a privileged position, and it is aberrant to legislate on practices born from 21st century technologies on the basis of schemas taken from 19th. Think about it.
Because the future is our trade.”
Joseph Altairac, essayiste, Jean-Pierre Andrevon, auteur, critique, essayiste, Andoryss, scénariste (BD), Ayerdhal, auteur, Raphaël Bardas, auteur, Stéphane Beauverger, auteur, Geneviève Beduneau, auteur, blogueuse, Ugo Bellagamba, auteur, essayiste, Jean-Luc Blary, éditeur, Pierre Bordage, auteur, scénariste, Michel Borderie, illustrateur, Bruno B. Bordier, auteur, Charlotte Bousquet, auteur, Georges Bormand, auteur, critique, Alexis Brun, éditeur, David Calvo, auteur,
Via a comment on the blog I learned that the letter translated below was not drafted by Paulo Branco the producer, but in fact by his son Juan Paulo Branco, who is also the maintainer of the blog Pour le Cinema (For the Cinema). Sorry Juan Paolo!
Things are hotting up in France ahead of the reintroduction of the Internet and Creation Law (HADOPI) in the French Parliament on April 29th. As I’ve described elsewhere several groups of musicians and filmmakers have made public pronouncements in support of the law. While there have been dissidents to the industry line throughout, a serious crack has opened up in the last week. Below I’ve translated the letter (French original here) drawn up by Juan Paulo Branco, and signed by over thirty figures from French cinema. Arthouse fans will be happy to see Chantal Akerman on the list, Eva Truffaut – who holds the rights to all her father’s films – documentary and narrative filmmakers, producers, casting directors and actors. One name stands out however, because it’s loaded with serious cultural capital, and that’s Catherine Deneuve. Ah, one more thing, another signatory is a certain Jean Sainati, whom you probably haven’t heard of: he was executive director of the ALPA ie the Antipiracy Board, from 1988 until 2002. Is the penny dropping yet?
The call came late, but hey, it came. Paulo Branco put the delay down to the time required to collect the signatories and veiled threats made to him by other members of the film industry. Serious stuff given that he’s no industry ingenue, having produced more than 200 movies for directors including Wim Wenders and Raoul Ruiz.
When the entertainment industry marshaled its troops for public display at the Odeon in Paris the parade was largely composed of aging songwriters. Note the looks on their faces. They have the support of some younger musicians as well, and Luc Besson and Bertrand Tavernier have been busy penning open letters in favour of the law, but the emergence of this schism internal to the cinema world will complicate the public debate significantly.
Meanwhile Juan Paulo Branco has launched a blog around their call, and is collecting alternative proposals to Hadopi. Today’s contribution is from campaign group, La Quadrature du Net, titled “The necessary union between artists and internet users.” The same crowd who are coordinating an international campaign around the EU Telecoms Package. One imagines that the article must have caused some squeaky-bums moments in a few Parisian boardrooms.
An Open Letter to Citizen Viewers (Spectateurs),
Here is the open letter through which the opposition movement of the cinema world against the Hadopi law has begun. It constitutes a first step in the struggle for a more just system which takes into account the interests of all: the battle has just begun.
Committed (engagé) artists and producers, throughout our careers we have dedicated ourselves to a different cinema, a cinema which is open and challenging.
You have brought life to our work, heralding, acknowledging or rejecting it. Throughout our careers, we have pursued the same ambition: to spread our work and share it with you. Throughout our careers, we have faced a thousand obstacles, be they technical, material or economic.
Today we have the luck to live through a digital revolution which will allow us, in the very near future, to remove a number of these obstacles and open our cinema to all.
Today some fear this revolution, and fear for their monopoly. The Internet and Creation Law responds to a legitimate anxiety, which we share: that of seeing works devalued and degraded through distribution on the internet.
However this law, which claims to position itself as defender of creation, merely establishes a punishment mechanism of dubious constitutionality and opaque functionality.
Fruit of a massive exercise in lobbying and based on the presumption of guild, the Internet and Creation Law creates HADOPI, a high authority controlled by the executive which will be able to cut off an internet user’s connection for an infinitely extendible period, with neither the slightest proof nor the possibility of legal recourse,
Worse, and contrary to what has been widely written, no legislative provision enacts the substitution of criminal and civil charges with this procedure, making a ‘dual punishment’ possible .
Just as the European Parliament has almost unanimously characterized access to the internet as a fundamental right for the third time in just a few months; as ‘graduated response’ model crumbles in the United States; and while the rest of world emphasizes the pursuit of commercial pirates, the French government persists in treating users, viewers, as immature children at the root of all the cinema industry’s problems.
Demagogic, technically unfeasible, doggedly ignorant of the new methods of downloading, and purely repressive, this law is also a missed opportunity. Providing no new form of remuneration for rightsholders, the Internet and Creation Law addresses neither the cinema in its diversity, nor the viewers. Constituting just one last vain attempt to eradicate piracy through punishment, without concerning itself with the creation of legal alternatives, affordable and openly accessible via internet, it responds to none of the challenges posed today by new technologies, even though a strong and creative response is required by the cinema industry and those bodies dedicated to the protection of rights.
We do not identify with this approach, and call for a change of mentality. Fear of the internet is a mistake that we can no longer allow ourselves to make. It is time to accept that we must adapt ourselves to this “new world”, where access to culture loses its discriminatory character, and stop striving to create a society of virtual surveillance where everyone feels monitored.
Be it through a system of compulsory license (license globale) or by through the development of a unified platform for the downloading of works without DRM at reasonable prices, positive responses to this challenge are needed today, which measure up to the expectations of the audience. Now is the time for reinvention and amazement, rather than the introduction of the umpteenth repressive mechanism….
Conscious of the needs of rightsholders, as we are ourselves, to find new forms of remuneration and get rid of piracy…
Confronted by a mechanism which is essentially conservative, demagogic and corrosive of liberty, which does not deals with what is really at stake in the digital revolution, and pays no heed to the interests of auteur cinema (cinema d’auteur). And in response to the numerous public declarations, drawn up by institutions and lobby groups to speak in the name of a profession which they represent only in part….
We, filmmakers, producers and actors, mark with this declaration our refusal of the Hadopi system, and the Internet and Creation Law.
We call on all lovers of cinema and freedom, of creation and diversity, to make their voices heard to their representatives to abandon Hadopi while there is still time, and put in its place a more just system, taking into account the interests of all.
Victoria Abril (actrice), Chantal Akerman (réalisatrice), Agathe Berman (productrice), Paulo Branco (producteur), Catherine Deneuve (actrice), Louis Garrel (acteur), Yann Gonzalez (comédien), Clotilde Hesme (actrice), Christophe Honoré (réalisateur), JP Limosin (acteur), Chiara Mastroianni (actrice), Zina Modiano (réalisatrice), Gael Morel (réalisateur), Eva Truffaut (artiste cinéaste, ayant-droit de François Truffaut), Brigitte Rouan (réalisatrice), Françoise Romand (réalisateur), Laurence Ferreira Barbosa (réalisateur), Santiago Amigorena (réalisateur), Jeanne Balibar (actrice), Luc Wouters (SRF), Jean Sainati (ex délégué de l’ALPA général de 88 à 2002), Pierre Cattan (producteur), Gilles Sandoz (producteur), Pascal Verroust (ADR productions), Timothy Duquesne (auteur), Agnès de Cayeux (auteur), Antoine Moreau (auteur), Nathalie Chéron (directrice de casting), Gisčle Rapp-Meichler (cinéaste), Sylvain Monod (producteur, cinéaste), Richard Rousseau (directeur de casting), Fabrice Ziolkowski (réalisateur), Jacquie Bablet (réalisateur), Olivier Seror (réalisateur)
To see my more recent posts on Hadopi, click here.
Interesting goings on in the Hémicycle (French Parliament), after the text of the Loi Creation et Internet (aka Hadopi) had been passed on to the Commission Mixte Paritaire (made up of seven deputies and seven senators), it was significantly stiffened. As part of an emergency legislative procedure the CMP has the right to elect what it wants in the text, and is not bound to include amendments voted either by deputies or senators. The version of the law signed off on by the CMP required those who had their internet connection cut off for ‘illegal downloading’ would even have to continue paying for the service. In addition, there is no guarantee that those sanctioned will not be pursued also under regilar copyright legislation, entailing penalies and jail, the HADOPI could amount to the imposition of a form of double punishment. Furthermore the duration of suspension of service was extended from one to two months; far longer than the ‘two to three weeks’ recently suggested by Christine Albanel.
The law went to the Senate where it was duly passed without much comment. next stop, thursday afternoon at the National Assembly. So yesterday there were just a handful of deputies present for the vote which was presumed to be a card-stamping exercise, after all Sarkozy’s UMP have a massive majority. But shortly before the vote, a handful of Socialist deputies entered the room creating a de facto majority for the opposition, the result: 15 in favour, 21 against. Hadopi defeated. (By the way, where were the other 541 deputies?)
Christine Albanel and the whips of the UMP are crying foul, claiming that the opponents had laid a trap, hidden there deputies and broken some unspoken rule. But the result remains the same. what now?
Sarkozy can, and almost certainly will, demand a second reading of the law after the Easter holiday which finishes April 28. Next time it’s certain that the UMP will get a lot more bums on seats. But there will have to be another debate, and the text will be that which entered the CMP rather than that which exited it. In addition this is an extremely unpopular law in France, and there may be more defections as majority deputies contemplate the price they may pay for this when they return to the electorate.
To see my more recent posts on Hadopi, click here.
During May I was in the south west of France for work, and when discipline allowed it, to drink. Our base was in a small town near Agen, but I took the oppurtunity to sample wines from the Languedoc which is effectively the next production area to the east, where value is good and some rarities are to be had, such as the delicious white Picpoul, which I’d recommend as an accompaniment to delicate fish.
Whilst researching the history of the zone I unearthed a lot of documentation around the winemakers rebellion which spread like wildfire through the region in 1907, catalyst for the Appelation (AOC) system. Many small producers had their backs to the wall due to a collapse in the market price. This precipitous decrease was provoked by winemakers elsewhere adding sugar to the must so as to increase the alcohol levels of their wines, a process known as chaptalization. As the economic situation tightened, producers set up committees to protest at what they regarded as a scam, led by Marcellin Albert. Mass demonstrations involving up to 180,000 people were held in towns such as Perpignan and Narbonne. Town councils resigned, a tax strike declared, police stations attacked, and winemakers marched singing the Internationale. Barricades were erected in many towns and Clemenceau — a Prime Minister with great repressive zeal — sent in the army. On June 19th 1907, soldiers shot dead at least five people in Narbonne, and the rebellion was repressed. Shortly afterwards the AOC system was established so as to better control the tricks of adulteration which were in wide use, although it was to be another thrity years before an institution was set up to manage the system.
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