Agreement for the development and protection of cultural works and programmes on new networks

Our country possesses one of the strongest content industries on the planet; this provides an opportunity to preserve and develop the cultural identity and influence of France and Europe.  Our country also benefits from having one of the most developed broadband Internet access industries in the world; this is a considerable advantage in the virtual economy battle.  These assets must not cancel each other out, but to the contrary complement each other, in the best interests of the consumer who will in this way have at his disposal powerful distribution networks and rich and diversified content.

It is with this ambition in mind that the parties to this present agreement wanted to carry out a concerted and transparent action in the fight against attacks on intellectual property rights on digital networks and, to this end, in a pragmatic manner, promote the availability of legitimate content on the Internet to the benefit of consumers and implement original measures to prevent piracy whilst respecting individual liberties.

With this in mind, the parties have agreed on the following principles:

1.  The public authorities undertake:

•  To propose legislation to the Parliament and to adopt regulatory measures, allowing the setting up of a warning and sanction mechanism aimed at deterring infringements of intellectual property rights on digital networks.  This mechanism would be based on the principle of the responsibility of the subscriber for the fraudulent use of his subscription, currently found under Article L. 335-12 of the Intellectual Property Code, and will be driven by a specialised public authority, placed under the control of a judge, in order to guarantee individual rights and liberties.  This authority will be given the personnel and technical means to warn and to sanction.  On the basis of a complaint from righholders, directly or via structures entitled by law to investigate infringements of rights, it will send out in its name, via the Internet service providers, electronic warning messages to the owner of the subscription.  In cases of repeat infringement, it will apply, or will refer the matter to the judge in order to have applied, sanctions against the owner of the subscription. These sanctions will range from the suspension of access to the Internet to the termination of the Internet subscription;

o  This authority will have the power to apply sanctions on access providers who do not respond, or do not do so in a diligent manner, to its injunctions.  It will publish monthly statistics on its activities;
o  This authority will also have, under the control of the judge, the ability to request technical providers (hosting services, access providers, etc.) to take any measures necessary to prevent or put an end to injury caused by the content of an online communication service.

•  To constitute, further to an opinion from the national Informatics and Liberties Committee (CNIL – Commission nationale de l’informatique et des libertés), a national directory of subscribers whose contracts have been terminated for the reasons mentioned above;
•  To publish on a monthly basis an indicator measuring, by sampling, the volume of illicit uploads and downloads of music files and of audiovisual and cinematographic works and programmes;
•  To invite the European Union to extend to all cultural goods and services the reduced VAT rate.  Consumers should benefit from this measure wholly or partly thanks to a reduction in retail prices.

2.  Audiovisual, film and music rightholders as well as broadcasters undertake:

•  To get organised to use the existing legal mechanisms and to cooperate in good faith with the platforms hosting and sharing content in order to assess, choose and promote common fingerprinting or watermarking technologies.  They will also make available the information enabling the establishment of the most comprehensive as possible catalogues of fingerprints, knowing that the development of these techniques does not prejudice the obligation for these platforms to institute any measures aimed at combating the illegal offer of protected content online;
•  From the moment that the warning and sanction mechanism is functioning effectively, to bring into line the effective window release for on-demand video with that of physical video;
•  To open discussions that should lead, within a maximum period of one year from the effective functioning of the warning and sanction mechanism, to the reorganisation of the media chronology, under the authority of the Ministry of Culture and Communications, notably with the aim of allowing a faster availability of cinematographic works online.  It should also indicate how to harmoniously insert the window for video on demand into the traditional system which partitions this chronology into windows of exploitation;

•  To strive to make available the audiovisual works and programmes in video on demand and to accelerate their online exploitation following their broadcasting, whilst respecting recognised rights and exclusivities;
•  To make available, within a maximum period of one year following the effective functioning of the warning and sanction mechanism, the catalogue of French musical productions for online sale by title, without technical protection measures, in so far as these do not allow interoperability, all the while respecting recognised rights and exclusivities.

3.  The technical providers undertake:

•  Concerning internet access providers:

o  To send the warning messages and to implement the sanction decisions, in the framework of the warning and sanction mechanism and in the name of the authority;
o  Within a maximum period of 24 months following the signature of the present agreement, to cooperate with the rightholders on the ways to test filtering technologies which are available but which deserve more preliminary in-depth research.  They also undertake to apply them if the results prove convincing and if their general application proves technically and financially realistic;

•  Concerning hosting and content-sharing platforms, to cooperate in good faith with rightholders, without prejudice to the conclusion of the agreements necessary for the legal use of protected content, in order to:

o  Extend in the short term the effective filtering and fingerprinting and watermarking technologies, notably by establishing with them the acceptable fingerprinting technologies together with the catalogues of fingerprinting sources that the rightholders should help to create;
o  Define the conditions within which these technologies will be systematically implemented.

Once implemented and one year after their execution, these general principles will give rise to a meeting of the signatories of the present agreement under the aegis of the Ministry of Culture and Communication and the Ministry of Economy, Finance and Employment.  This meeting will result in the drafting of an evaluation report which will be made public