AFACT defends French three-strikes regime

The Australian Federation Against Copyright Theft (AFACT) has come out in defence of France's controversial three-strikes law to combat copyright infringement, citing the regime's success in the country despite a pending review of the underpinning legislation.

The graduated response regime, introduced in 2009 under former president Nicolas Sarkozy, has faced increasing criticism since its formation over claims of inefficiencies and high costs.

Governing authority HADOPI (pdf) had sent 1,090,000 first-strike notices to French internet users as of June 1, followed by 99,000 secondary notices via registered mail to repeat infringers.

A further 314 users have racked up three strikes but the HADOPI agency is yet to report anyone to France’s public prosecutor to stand trial before a judge, and have his or her internet connection terminated.

Internet account holders who receive three warnings by HADOPI face criminal liability and fines of €1500 ($AU1758). A court order could result in the user's internet connection being suspended for up to one month.

But French cultural minister, Aurélie Filipetti, told publication Nouvel Observateur that the agency was expensive to run and had failed in fulfilling its key objectives of encouraging the development of legal content downloading services.

She threatened significant budget cuts to the agency, which has a staff of 60 officers and costs €12 million ($AU14 million) a year to run.

A consultative committee led by Pierre Lescure, the former chief executive of TV channel Canal+, will determine the future of HADOPI under a broad mandate to consider the implications of digital culture and dissemination of content.

It is expected to report back to Filipetti in March next year.

AFACT managing director Neil Gane, told iTnews that reports from TorrentFreak that HADOPI would be scrapped were incorrect and did not reflect the consultation process put into motion by minister Filipetti.

"Minister Filippetti has frequently repeated that she will not determine firm plans for the future of the Authority or the graduated response until she has reviewed Lescure’s recommendations in Q1 2013," Gane said.

"There is nothing to indicate that Hadopi will be scrapped ... On the contrary the program in France has had a positive effect on reducing online infringement and informing internet users where they can source legal online content."

Newly appointed French president François Hollande had campaigned on the removal of the agency in the lead-up to the elections while Filipetti opined that suspension of users’ internet access was a disproportionate sanction.

New Zealand's regime

Lobby group InternetNZ’s policy lead Susan Chalmers said the news about HADOPI was timely for New Zealand, whose equivalent graduated response scheme has also faced criticism of late.

“The [NZ Government] is currently deciding whether to change the fee rights holders pay ISPs for processing infringement notices. Rights holders wish to see the fee — currently $NZ25 per notice- lowered,” Chalmers said.

However, if the fee is lowered, Chalmers said the cost to ISPs of the "three strikes" regime and to account holders down the line rises.

“InternetNZ does not want to see that happen and Minister Filipetti's announcement, at least in part, illustrates why; the three strikes regimes in France and New Zealand may differ in certain respects, but what they have in common is that they are incredibly problematic on a number of levels - they're expensive, ineffective, raise privacy concerns, and they miss the point,” she said.

Introduced last year, the regime saw users accused of infringing on copyright receive two notices and a third notice if repeated within six months. Threats of $NZ15,000 fines and appearance before the Copyright Tribunal were also imposed on the third notice.

The law provides for the termination of internet users' accounts but the provision has remained dormant to date.

Only the Recording Industry Association of New Zealand (RIANZ) is known to have sent notices to customers, through their ISP, recording 2766 total allegations of copyright infringement by users, according to its figures.

Of these, 60 have been challenged by account holders accused of infringement. Only two challenges have been deemed valid by RIANZ, however.

Three people have been issued with a third notice, and may have to face a Copyright Tribunal hearing.

The NZ law has reduced online infringement, according to rights holder organisation NZ FACT, noting the number of cases halved in September last year when the enforcement came into effect.

But Chalmers said the regime was not effective in pushing users down legal content avenues.

“Particularly in the case of New Zealand, we have to ask ourselves how effective a three strikes regime could be when it's punishing internet users for accessing digital content that, especially in the case of films and TV shows, can't be purchased legally in New Zealand anyway,” Chalmers said.

“Three strikes regimes are very poorly constructed from a policy perspective and the news about HADOPI does not come as a surprise."

The Australian system

Despite support for the French system, AFACT has not led moves to initiate a similar graduated response scheme with threats of internet termination in Australia.

Instead, Gane pointed to the six-strikes regime nutted out between US service providers and rights holders — but recently delayed — as a model for a local system.

“The purpose of this co-funded copyright alert system is not to punish but to educate subscribers about copyright and the many sources of legal content available, as well as to help them guard against the risks of illegal file sharing,” Gane said.

According to Gane, the copyright notice system consists of four to six copyright alerts, issued at the discretion of each ISP.

If, after these educational and acknowledgment alerts, the subscriber’s account still appears to be engaged in illegal file sharing, the ISP may institute “mitigation measures” including temporary speed shaping, landing page redirection and educational information.

A dispute resolution process is also inherent in the framework, Gane said.

Negotiation around an Australian system has continued between ISPs and rights holders, facilitated in part by the Attorney-General's Department but recent indications remain uncertain of a mutual agreement in the near future.