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G8 Conference (4): Combating Piracy and the Infringement of Copyright

G8 Conference (4): Combating Piracy and the Infringement of Copyright

Source: G8 Conference on Cyber-Crime, Paris, May 15-17, 2000. Statement issued by the French Ministry of Culture and Communication on "Combating Piracy and Infringrmrnt of Copyright" related to works on Phonograms, Videograms and performances protected by literary and artistic property (Paris, May 12, 2000).

Copyright infringement has developed spectacularly over the last few years thanks to the conjunction of digital reproduction technology, which allows perfect and infinitely reproducible copies of protected items, and the rapid expansion of digital networks which have encouraged the rapid, discreet and cheap distribution of pirated goods on an international scale.

What is also new is the tremendous ease with which offences can be committed and disseminated throughout the world, together with problems in applying legislation protecting literary and artistic property in view of the ephemeral nature of the content and the international nature of the networks.

France has equipped itself with an effective set of laws and regulations in order to fight the many and varied forms of piracy on the digital networks (I). However, it is impossible to imagine combating piracy without major preventive action and better cooperation between all those involved, both at national and international level (II).

I. A set of laws and regulations applicable to the numerous forms of piracy on the digital networks

Digital networks must not offer a way for pirates, whatever their methods (A), to remain outside the scope of the legislative and regulatory provisions of the Intellectual Property Code relating to infringement of copyright (B).

A. Copyright infringement on the digital networks - an increasingly prevalent practice

Before the advent of efficient standards of compression or high-speed networks, the installation of Internet sites in certain countries, offering distance selling or the exchange of pirated works, phonograms or videograms, enabled the distribution of pirated goods to take place.

The emergence of compression standards such as MP3, allowing physical supports to be eliminated and pirated items to be distributed directly over the digital networks has intensified these practices. While still images, music and software are the most widely distributed pirated items at the moment because of the limits of the technical capacity of the networks, the development of high speed transmission systems and of new compression mechanisms for digital files is opening the door to the pirating of audiovisual works and videograms in the very near future.

The distribution of pirated works has increased substantially over the last two years because of the multiplication of Internet sites belonging to private individuals or commercial traders who offer the downloading of digital files, the audition or dissemination of creative works without the authorization of the copyright owners. Surfers on the Net have simple and effective tools at their disposal which allow them to search for and locate these sites, either by using search engines or electronic directories, or by exchanging information in specialized forums or newsgroups. The pirate sites offer file downloading either by making pirated copies available directly or by referral to other pirate sites using framing (so that the second site is displayed in a window on the first site) or by links directly to the infringing files or sites. The sites which permit the distribution of protected items without authorizing the downloading of them are also infringing copyright even if this practice limits the dissemination of pirated files.

B. A set of laws and rules adapted to the digital environment

The provisions of the Intellectual Property Code require the prior authorization of the copyright owner or the neighbouring rights holder for the reproduction, representation and making available to the public of protected works and performances irrespective of the mode or technique used for the reproduction or communication to the public. As such, these provisions apply fully to the digital networks and breaching them is an infringement of copyright. Moreover, the courts which have already had to give a verdict about copyright infringement on the digital networks have confirmed that the provisions of the Intellectual Property Code apply in this area.

The Intellectual Property Code offers rights holders an effective legal framework by authorizing the rights holders as well as the professional bodies which represent them to take action against piracy. The law as it stands allows the litigious use to be classified as a breach of the law and the evidence of IT-related offences to be obtained in due course. Thus, the establishment of the fact that an actual offence has been committed can be carried out by "designated officials" (article L.331-2 of the Intellectual Property Code) available to the Societies for the Collection and Distribution of Royalties and to some of the professional associations (Agency for the Protection of Programs, Association against Audiovisual Piracy, Union for the Protection of Software Publishers).

The sanctions under the Intellectual Property Code are highly deterrent: copyright infringement is punished by a fine of one million French francs and two years imprisonment; these sanctions also apply to the retail sale and import of pirated goods. Furthermore, additional sanctions may be handed down, such as the confiscation of revenues or of the equipment used to make the illicit copies, the publication of the judgement or even the temporary or definitive closing of the infringing business. Re-offending doubles the punishment meted out for a first offence.

Although these measures against copyright infringement and piracy are certainly effective, the system could be improved in order to adapt it to the ephemeral nature of the networks and be flanked by a prevention and information policy alongside cooperation between the parties concerned, and indeed a mechanism for inter-State cooperation. All the parties involved in piracy, be it the copyright owners, the digital network intermediaries and the public authorities, must pull together to enforce the law protecting designers, creators and the cultural industry and increase the confidence of network users.

II. Stronger measures of prevention and cooperation

The dissemination of pirated items via the digital networks is not systematically the work of people deliberately committing a criminal act, but often the result of ignorance of the law and a failure to understand the damage suffered by copyright owners. The situation could be improved by information and prevention campaigns together with the development of technical measures to protect the fruits of mental activity (A). However, piracy will be dealt with effectively only through greater cooperation between the public authorities, establishment of instruments of international cooperation and development of quick procedures adapted to the digital networks (B).

A. Information and prevention of piracy on the digital networks

Copyright owners are adopting measures to prevent piracy: the identification of works, phonograms and videograms on the digital networks, the introduction of technical protection arrangements where legal protection must be provided in conformity with the 1996 WIPO Treaties.

Over and above these technical measures, there must be public campaigns to inform the public about piracy, particularly in the field of music which is especially prone to it. Press campaigns will shortly be backed up by television advertisements primarily targeting the young who are fertile ground for the propagation of pirated items and there will also be an information line about piracy on the Internet sites of professional associations (SACEM, SCPP, APP, etc.) and public bodies.

The National Committee Against Piracy, on which representatives of both the professional bodies and the public authorities sit, has begun to consider ways and means of informing the public as well as the legal authorities and the police and Gendarmerie about the practices and the legal and economic aspects of piracy.

Prevention of and information about piracy must be supplemented by better coordination of the means to combat it and cooperation between the various players involved in the digital networks.

B. Closer cooperation

With the increasing cooperation and coordination of actions on the one hand between the professional bodies and, on the other, between them and the government, there is more need than ever to establish the basic conditions for effective international cooperation.

At present, many procedures already exist for mutual assistance in the fight against crime, i.e. means whereby a State lends the assistance of its law-enforcement agencies or judicial authorities to help with another State’s investigations, conviction or law enforcement in the event of a breach of the law.

However, multilateral instruments for offering mutual assistance have frequently been organized on a limited geographical scale and have not always been designed specifically to address the particular problems posed by copyright infringement on the digital networks.

There can be various forms of cooperation, targeting key areas in order to avoid the creation of "safe havens" for digital criminals: the need for common definitions of breaches of the law, the scope and applicability of the law of the receiving country, the harmonization of admissibility criteria for legal proceedings, improvement of mutual assistance between police and customs services particularly with regard to the identification of pirates, the question of evidence and setting up of contact points.

Such cooperation must of course be complemented by greater cooperation between the various players on the digital networks and between them and the public authorities in order to put an end to unlawful behaviour as quickly as possible and to stop it re-occurring./.

 

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Directeur de la publication : Joël-François Dumont
Comité de rédaction : Jacques de Lestapis, Hugues Dumont, François de Vries (Bruxelles), Hans-Ulrich Helfer (Suisse), Michael Hellerforth (Allemagne).
Comité militaire : VAE Guy Labouérie (†), GAA François Mermet (2S), CF Patrice Théry (Asie).

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