M+E Exclusive

By Paul Sweeting

The government of France, which pioneered the “three-strikes” enforcement method against online piracy, all-but abandoned the strategy Monday as part of a proposed sweeping overhaul of French media laws and regulations.

The proposal to effectively end the graduated-response system against online file-swappers was contained in a nearly 800 page report issued by a special commission appointed by the French Ministry of Culture to recommend ways to update French media laws for the digital era. The commission was headed by Pierre Lescure, the former head of Canal Plus.

The report recommends dismantling Hadopi, the organization created in 2009 to oversee France’s then-new three-strikes law (and known by its French acronym), and transferring its authority to the French television industry regulator. As part of that process, the report recommends doing away with the current penalties for repeat violations, which can include cutting off offenders ‘access to the Internet. Instead, the commission report would replace the most severe penalty with a small fine.

If implemented, the proposal would be a stark reversal for a law hailed by copyright owners just four years ago as a model for addressing the problem of online file-sharing. Strongly backed by the previous French government under Nicolas Sarkozy, the three-strikes law was highly controversial from the start and its effectiveness at curbing piracy was a matter of dispute. It was was fiercely opposed at the time by many in the Socialist opposition, and with the Socialists now in power under President Franςois Hollande, the law and Hadopi have seen an erosion of government support and enforcement budgets.

The proposal to dismantle Hadopi is just one of 75 recommendations contained in the Lescure Commission report and is not the only one likely to spark controversy. The report also recommends imposing a new tax on all devices capable of connecting to the Internet, from mobile phones and tablets to connected TVs and Blu-ray players, to help support production of French cultural works. The new tax would come on top of an existing levy system in France that imposes a fee on recording devices to compensate copyright owners for private copying.

In a shift, the report recommends that both taxes be imposed directly on manufacturers, rather than collected at the point of sale as the private copying level currently is collected.

The report also recommends shortening the time between movie release windows, which are set by law in France. Currently, for instance, movies must be released on DVD, Blu-ray and video-on-demand four months after the date of their theatrical release. The Lescure report recommends shortening that to three months.

The commission also recommends moving the subscription window up from the current 36 months after theatrical release to 18 months to encourage the development of Netflix-like services in France.

The publication of the Lescure report is only the first step in what is likely to be a drawn out process of updating French media laws. If adopted by the Ministry of Culture, the recommendations will be subject to a period of public comment and would then have to be incorporated into legislation and passed by the French parliament, where many of them are likely to face opposition.

The process in France, however, is likely to be watched closely throughout the EU, which is currently gearing up to consider changes to the EU-wide Copyright Directive. Several other European countries impose private copying levies, for instance, which are under pressure as a source of revenue as consumers increasing embrace on-demand access to media content over permanent copies. If France is successful in imposing new taxes on connected devices other governments are likely to consider similar moves.

The dismantling of Hadopi in France, however, is likely to put an end to any hopes of extending the French three-strikes regime to other parts of the EU, let alone beyond Europe.

A French-language summary of the main proposals in the Lescure report can be found (and auto-translated) here.