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Fight against online counterfeiting: French Minister for Culture and Communication wants providers of hosting services to get more involved

In August 2012, the French Government asked Mr Pierre Lescure to draft a report on digital contents and cultural policy in the digital age. The Report, which was submitted on 13 May 2013, identifies the issues created by the digital economy in every field of creation (music, cinema, literature, photography, media etc.), and details 80 proposals (http://www.culturecommunication.gouv.fr/var/culture/storage/culture_mag/rapport_lescure/index.htm#/). With respect to the specific issue of online counterfeiting, the Lescure Report recommends focusing on streaming, direct downloading and referencing websites, rather than on private and occasional users. These websites derive huge benefits from the commercial exploitation of unlawful contents posted online, notably through payments made by users and through online advertising. In order to fight more efficiently against counterfeiting, the Lescure Report recommends increasing the involvement of technical and financial intermediaries, such as providers of hosting services, web browsers, Internet service providers etc.

On the basis of the findings of this report, a Member of the French Parliament asked the Minister for Culture and Communication, Ms Aurélie Filippetti, for her point of view on the specific question of the liability regime of providers of hosting services, and whether or not this regime should be amended. The Member of Parliament notably insisted upon the fact that nowadays, all intermediaries try to benefit from this limited liability regime in order to escape their liability.

In a Ministerial response no. 28052 published on 27 August 2013 (http://questions.assemblee-nationale.fr/q14/14-28052QE.htm), the French Minister for Culture and Communication confirmed the need for technical and financial intermediaries, such as providers of hosting services, to become more involved in the fight against counterfeiting. However, she reaffirmed that their specific liability regime, which derives from the e-commerce directive no. 2000/31/EC of 8 June 2000, should not be modified and that net neutrality should also be preserved. The French Minister for Culture also confirmed that she asked Ms Mireille Imbert-Quaretta to conduct a mission aimed at elaborating practical measures so that technical and financial intermediaries become more involved in the fight against counterfeiting. Ms Imbert-Quaretta is the President of the Rights Protection Commission of the High Authority for the distribution of Works and the Protection of Rights on the Internet (Hadopi). She notably drafted a report on the prevention of unlawful streaming and direct downloading which was submitted to the President of Hadopi last 15 February 2013 (http://www.hadopi.fr/sites/default/files/page/pdf/Rapportstreaming_eng.pdf). The Minister for Culture concluded by saying that these practical measures could consist of both voluntary measures, such as an agreement to be concluded between stakeholders, but could equally consist of laws and regulations. Ms Imbert-Quaretta’s report on this topic is due to be submitted in January 2014.