World copyright summit
Washington, June 9, 2009
Ladies and Gentlemen,
First, I regret that I can’t be with you personally at the second World Copyright Summit. Due to last-minute circumstances directly related to the speech you asked me to deliver, I must remain in Paris.
Nevertheless, I want to underscore the importance of this summit and the pertinence of the issues to be discussed there: How will the creation, distribution and access to culture change in the digital age? _ How will creators be remunerated for their work? How can the distribution of such work be facilitated? What role can the government play to promote the transition to new models? All of these questions attest to the fact that the respect of copyrights on digital networks lies at the heart of many societal challenges.
The Internet represents a fantastic opportunity for culture. It is the vector for its future distribution, the channel that already gives us access to millions of pieces of music, thousands of films and, increasingly, to literature, virtual tours of museums or exhibits, performances….
We love the Internet and we support the development of this unique tool for sharing knowledge and culture of every kind.
However, rules are called for.
I am deeply convinced that the basic principles that govern life in society don’t simply disappear in the digital environment. There is no “virtual world” where collective constraints are abolished, where one may brutally assert oneself to the detriment of others. There is but one single “world,” which is governed by the same rules, and the Internet is not and should not be immune to the law.
For this reason, combating piracy is a modern cause. Those who believe that might makes right, that the fox should guard the henhouse, that the Internet should remain an anarchic jungle are living in the wrong times.
Piracy is a childhood illness of the Internet, which must now grow up and assume adult responsibilities.
They haven’t understood that citizens expect the government to protect everyone’s rights, including those of creators. The vast majority of the public knows full well that all work—even that of an artistic nature—deserves to be rewarded, and that ownership rights are the only way to finance innovation and renew creation.
It is therefore the government’s responsibility, through the definition of a suitable legal framework, to ensure that legal cultural content may be developed online in all its richness and diversity, which means ending the unfair competition fostered by piracy.
Indeed, it is no longer possible to justify or excuse piracy by saying that content is not available legally. For remarkable progress has been made. Cultural industries have had their own successful digital revolution. Thousands of films and millions of pieces of music are now posted online. If piracy continues, the diversity of such content will be threatened, and the new economic models needed for the diffusion of culture on the Internet—still very fragile—will be unable to gain traction.
For years, we have wondered whether mass piracy represented a real threat to the renewal of creation and to cultural industries. We are no longer worrying—we’re observing. And what we see is overwhelming—we are witnessing a real economic and cultural disaster.
I will limit myself to French figures. The market for recorded music has been hit the hardest, dropping 50 percent in value over the past five years. The leading victims are of course the “independents,” the smallest businesses, which currently offer the public 80 percent of available music. The film industry is on the same trajectory, with as many illegal downloads as ticket sales. Our video market has lost one-fourth of its value. As for book publishing, this sector is on the verge of entering the digital age. It was my duty to take the necessary preventive measures to keep it from falling victim to the ravages of piracy.
These effects are all the more unacceptable in that piracy is also an “economy”—a parasite economy, in which advertisers with deep pockets are helping expand the audience for pirate sites. Ending this situation is therefore an urgent matter, because not only is it tragic for creators and cultural industries, it is also harmful in the long run to the public, which will see the renewal and diversity of cultural works gradually dry up for lack of financing.
The law on Creation and the Internet, which I was honored to present to the French Parliament, is an attempt to provide an ambitious, realistic solution to this problem.
The law is ambitious because it is designed to seize the unprecedented opportunity that the Internet offers for culture: for its democratization, but also for expanding its economic potential.
But it is also realistic. It doesn’t claim to completely eradicate the massive social phenomenon of online cultural piracy. Its vocation, rather, is to help bring about a new awareness, establish a new attitude among Internet users: teaching them to respect cultural diversity and, consequently, to accept the economic and legal conditions that are key to its preservation, and notably to its financing.
The method I followed was based on the conviction that in order to be effective, the solutions that are implemented must enjoy a very broad consensus among stakeholders involved in the cultural and digital industries. That was the purpose of the mission I gave Denis Olivennes in September 2007.
That mission resulted in a historic agreement signed at the Elysée Palace on November 23, 2007, by 47 organizations representing creators and businesses in the music, film and television industries and the digital sector, including all French service providers.
The parties agreed on an indivisible two-track plan that was incorporated in the law on Creation and the Internet, passed on May 13.
The first step consists of making legal content even more attractive to the public. To this end, record companies pledged to remove DRM protection from French works. The entire French film industry agreed to significantly reduce the delay between the introduction of movies in theaters and their availability to the public on DVD and video-on-demand (VOD) services.
The second part of the Elysée agreement deals with combating mass piracy. Stakeholders involved in the cultural and digital industries want a new approach to this fight, one that is preventive and graduated, with no penalties for a first offense. This approach is also aimed at “decriminalizing” piracy; a judge is not necessarily involved in handing out punishments, although the process that is used offers the exact same guarantees as the judicial process.
What is the mechanism of this second part of the bill, known as the “graduated response”?
The legal foundation on which it is based is the subscriber’s obligation to monitor Internet access. Thus parents who subscribe to Internet services may receive a warning for actions committed by their children. I think it’s both natural and effective for parents to teach proper Internet use and the respect of copyrights at home.
The first response is purely preventive in nature. If the offense recurs, there are negotiations, and if it happens again, a punishment may be imposed. The mechanism will be implemented by an independent agency, the “High Authority,” whose decision to impose a punishment may be disputed before a judge.
What will happen to the subscriber, in concrete terms, if his Internet account is used for illegal downloads?
In France, as elsewhere, it is up to the rights-owners to track down acts of digital piracy. In order to do so, they collect IP addresses of pirates from exchange networks. Based on this information, they refer the matter to the judge.
With the Creation and Internet law, rights-owners who collect IP addresses have a choice: They can either refer the matter to the judge, invoking the crime of counterfeiting, or to the High Authority, invoking the subscriber’s failure to fulfill his monitoring obligations.
The objective of the Creation and Internet law is to ensure that the effectiveness of the pedagogical, graduated mechanism overseen by the independent agency keeps such matters out of the courts. The “graduated response” does not eliminate judicial recourse but supplements it. Indeed, the only adequate response to certain acts of piracy, given their scope or sophisticated methods, is a criminal penalty or the payment of damages.
Along with all the Elysée agreement stakeholders, we bet that the High Authority would naturally handle proceedings—both quick and inexpensive—in cases of “ordinary” piracy, which constitute the vast majority of cases.
What will the specific role of the High Authority be?
It will send out warnings that simply remind the recipient of the law. The formality of these messages will be graduated—after an initial e-mail, the agency will send a second warning by registered mail. The subscriber will thus be forced to become aware of the problematic behavior.
A preventive phase will obligatorily precede any punishment. This educational, preventive aspect is essential. Studies carried out in Great Britain and France in the spring of 2008 show that 70 percent of Internet users stop pirating after receiving their first warning, and 90 percent stop after receiving the second.
If the subscriber commits further offenses, the High Authority may then suspend his or her Internet access, in principle for two months to a year. But the agency could offer the subscriber a bargain: If he or she pledges to stop the illegal behavior, the suspension will be reduced to between one and three months.
Suspending the subscription goes hand in hand with the impossibility of signing another contract with a different Internet service provider, to avoid the migration of subscribers from one ISP to another. Indeed, it is critical to ensure that providers who play by the rules are not penalized while those who are more lax benefit. For the same reasons, the High Authority can impose fines on ISPs that fail to suspend the customers that it indicates.
In the case of companies whose employees have engaged in piracy from their work stations, the law provides other measures beside the suspension of Internet access: a dialogue must take place with the agency to establish preventive measures such as firewalls to prevent piracy.
Of course, the High Authority only adapts these measures after a process in which it hears both sides, a process that that respects the rights of the defense, with the possibility of appealing to a judge.
A rather lively debate took place in the media and among the public when the law was examined by the French Parliament. There were some legitimate arguments, and others that were on the verge of caricature.
I would like to mention, first, the choice of the temporary suspension of one’s Internet subscription as an “ultimate measure.”
As this solution was chosen to clearly demonstrate our wish to decriminalize ordinary piracy, a fine would have sent a mixed message. The direct relationship between the questionable behavior, i.e., the inappropriate use of the Internet, and the type of punishment will enhance the measure’s effectiveness as a teaching tool. Finally, the non-pecuniary nature of the punishment avoids creating a disparity between wealthier subscribers, who could easily pay their fines and would thus have a “license to pirate,” and the less affluent public.
Some consider the suspension of the subscription as an attack on the freedom of communication. That calls for several remarks.
The first is very simple: ISP contracts already provide for canceling users’ subscriptions when they do not pay their bills or if they engage in inappropriate practices. Obviously, no one is invoking fundamental liberties to prevent ISPs from keeping deadbeats from using the Internet. So the idea that it’s a human rights violation to suspend someone’s subscription in order to punish them for infringing on ownership rights is sheer nonsense!
To repeat the obvious, personal Internet access has never been described as a “fundamental liberty” by a single Constitution or jurisdiction anywhere. Words have meaning.
In any case, even if personal Internet access were now regarded as a fundamental liberty, no right is ever unconditional: it must be reconciled with other freedoms and can not be used to violate them with impunity.
There’s nothing so original about that. We’ve known it in France since the Declaration of the Rights of Man and of the Citizen in 1789, which states, in article 4: “Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights.”
I also heard, during debates on the Creation and Internet law, that the High Authority would violate privacy and could be used to track and monitor Internet users.
What a paradox! The very role of this agency is indeed to reconcile the prevention of piracy with the protection of privacy, by interposing between users, creators and access providers an impartial, independent authority whose proceedings are confidential.
Indeed, the High Authority alone would be able to procure the personal data—name and contact information—needed to send warning messages. The pirate’s identity would thus remain hidden from rights-owners.
I would add that the High Authority would consist exclusively of judges and accredited public employees whose lack of ties with the economic interests in question would be verified by previous investigations.
The last objection I hear is that the law would be dictated by the “majors” with a vested interest in defending obsolete “privileges” and would ignore creators’ real problems.
The people who make that claim must not have discussed it with very many artists! The Creation and Internet law has received massive support from film, music and Internet creators and companies in France and worldwide—most particularly from independent companies who are the leading victims of piracy because they are the ones taking the greatest risks by supporting young talents.
In reality, the true question raised by this law is: Do creators, like all of our fellow citizens, have the right to live from their work?
Beaumarchais, the famous Enlightenment playwright, was also the inventor of the first copyright management company. He understood that ownership and moral rights, which protect works, could finally free the artist from his status as a lackey or courtesan. And that was indeed how he achieved his own economic independence and thus his freedom to create.
Do we want to give up, on the Internet, the fundamental rights we have championed for centuries? In a word: Is it up to technology to dictate the rules of human society, or is it up to us to make it respect our most essential values?
The choice of the Creation and Internet law is clear: it is that of a society that is not sacrificing the protection it owes its artists—and all of its members; it is the choice of a society that remains true to the struggles that gave it the rule of law.
I’m very glad that France is not standing alone in this struggle. For more than a year, in an ever growing wave of countries, the stakeholders involved in the cultural and digital sectors have agreed to put a stop to piracy by using graduated processes of warning and punishment, most often through contractual agreements but also by law.
Such agreements have been signed in the United Kingdom, Ireland and Japan; negotiations are under way in the Netherlands, Australia, and Hong Kong; laws have just been adopted in South Korea and Taiwan, and the process is pending in Norway.
In the course of a very short period, we are seeing a real convergence. This is good news, because it will strengthen the effectiveness of each of our national mechanisms.
I therefore hope that this summit, whose organizers I want to congratulate once again, will provide an opportunity to further intensify this convergence through the exchange of our respective expectations and experiences.