The 'three-strike graduated response' policy introduced in 2009 to combat illegal internet downloading ought to be relaxed and its administration transferred from Hadopi - to be abolished - to the domestic media regulator, Conseil Supérieur de l'Audiovisuel (CSA).

This is one of the 80 recommendations of the 478-page Lescure report, unveiled by the French government. Commissioned to Pierre Lescure, former CEO of Canal Plus, the report is the result of a consultative exercise (mission de concertation) on France's exception culturelle in the digital era. The cultural exception policy, introduced in France in 1993, asserts that cultural goods are to be treated differently from other commercial goods.

Amongst a range of issues, the report examines how to accommodate the potentially conflicting demands of creators and users with a view to protect and encourage cultural production. Since piracy and illegal Internet access are key components of this equation, one of the topics revisits the role of the graduated 'three-strike' response administered by Hadopi.

Because the balance sheet of the graduated response policy, three years after its introduction, is mixed, the report sees no ground for its phasing out, calling instead for a relax in its judicial reach as well as a reduction in penalties.

The report recommends that accessing content for personal use without seeking commercial benefit (non marchand) should be treated differently from accessing content with the aim of making money. Only users engaged in the latter should be prosecuted for illegal activities.

Operational since October 2012, the graduated response stages warnings to an illegal downloader, then brings the case to court and eventually leads to interruption of Internet service. While the mechanism resulted in only two convictions to date, none involving cutting net access, the Lescure report acknowledges the effectiveness of this policy in reducing illegal downloading. However, it suggests that threatening 'non profit-making' users with the full force of judicial procedures weakens the primary purpose of the policy - pedagogy - the strengthening of which the report calls for.

So, the report recommends that the graduated response be maintained, but relaxed, with the application of heavy-duty judicial tools reserved to those users drawing a financial benefit from illegal downloading.

Today's sanctions are disproportionate to the offence committed by peer-to-peer downloaders. Calling on a judge to prosecute actors of this widespread practice is ill-suited, the report concludes. Sanctions should no longer be penal, but administrative, which would leave greater flexibility to impose penalties adapted to individual circumstances. The level of fines should be lowered as well. The report thus calls for the abrogation of the suspension of internet services as the ultimate weapon in the Hadopi arsenal.

Given that the report recommends the focus of the graduated response should be placed more on the education of users than on repression, it calls for abolishing Hadopi, the independent body set up with a remit solely limited to fighting illegal downloading.

The administration of the 'new-look' graduated response should be transferred to the domestic media regulator, CSA, whose wider brief includes overseeing the market for digital content. The protection of content creators (droit d'auteur) - of which the graduated response plays a key role - becomes part and parcel of a broader policy agenda.

As a way of reducing the attractiveness of the web access to films whose discs are not yet available in the domestic market, the report recommends to shorten the Video-on-Demand as well as the DVD and Blu-ray release window to three months after a theatrical release for those VoD services providers and publishers that have a policy of financing and scheduling a diversity of productions. The release window for VoD subscription services could be reduced to 18 months.

Amongst other recommendations, as they allow access via the internet to 'cultural content,' the Lescure report proposes imposing a tax on the sale of smartphones, tablets and all other internet-linked devices, including gaming consoles and e-readers, to help fund the production of French art, films and music. An initial tax of 1% would raise €86m, but this could be raised up to 4%.

France has a long-standing system of funding filmmaking via taxation on television advertising, pay-TV subscriptions and cinema box office tickets, which brought last year €749 million. But those taxes as well as requirements to finance film production do not apply to fast-growing online video services (and or foreign-content stores like Apple's iTunes).

The new tax would replace an existing tax already levied on blank DVDs, memory sticks and computer hard disks which is reported to have raised almost €200m a year to compensate artists for the loss of income through private copying.


Download the Lescure Report (PDF, 7.8Mb).

Story filed 15.05.13