Mission ”Cultural exception – Act II”

The fundamentals of the Lescure report, which was published only a couple of days before, was introduced in a breaking news last week (only in Hungarian). One of my former students, Matthieu Pras, accepted my invitation to write a short summary of, a guest blog post about the almost 500 pages long document.

Cultural public policies in France have since the 80’s been driven around the notion of cultural exception. This postulates that, due to the importance of the non-economic aspects of artistic creations and their propagation, culture needs derogatory regulation differing from general commercial law. With the coming of the information era, the application of this principle has showed its limits. For example, the considerable free and illegal supply of cultural content available online makes it difficult for officials to implement policy measures protecting and promoting French authors and creations through the Internet. Perhaps the clearest illustration of this has been the adoption of Hadopi and its highly debated function of “graduated response”, aiming at providing room for copyright’s enforcement in the digital environment. As the executive changed in May 2012, moving to Hollande’s socialist presidency and its campaign promised to replace the Hadopi Act, a transparent assessment was needed.

In this context, the French government appointed a working group last September, in order to evaluate the state of play of cultural works in the digital environment, and identify possible solutions. The report, conducted under responsibility of journalist and former CEO of the on-subscription TV channel Canal+ (well-known for its large live sports events offer and broadcasting of movies), Pierre Lescure, was published on May 13th. It submits 80 suggestions, organized under three objectives, namely the development and promotion of a legal online supply, a fair remuneration for authors and artists, together with an adequate financing for creation, and as the third goal, the adaptation of IP law to the digital environment. Here are some of the proposals and approaches undertaken by the working group.

As a starting point, the report addresses legal online supply’s weaknesses relatively to illegal offer, underlining for instance the limited amount of content and the lack of interoperability of formats. It advocates for a qualitative improvement of the legal offer and a shift from physical to digital as the main form of exploitation of works. As to the promotion of a legal digital offer, a convention-based system would be implemented: the more a digital service ensures fair remuneration to rights holders and offers variety (among other possible criteria), the easier it would gain access to financing, consumers and works repertoires. Another more concrete measure to improve legal offer would be to shorten the time of video-on-demand availability of TV series.

Among other remarkable proposals, the report recommends a significant recast of the Hadopi system. Heavier efforts should be put on the educational aspects of the procedure (3 notification steps of alleged copyright infringement) and the legal sanction should be reduced, with a lower fine and giving up with the internet subscription suspension. This would imply a shift from criminal to administrative proceedings. Also, the Hadopi as an institution would disappear, with the High Audiovisual Council – already in charge of the regulation of broadcasting media – taking its functions over.

Teaching the basics of copyright during music and arts classes at school could, in the view of the working group, be relevant to make users, already at young age, understand of their rights and duties regarding the use of cultural content online.

Attention is also paid to the EU level of negotiations with, among others, a proposal to rethink intermediaries’ role to the illegal uses on the Internet. Other proposals give a foretaste of France’s possible position to those talks, with one suggesting the adoption of codes of conduct for search engines and social networks not to reference sites offering illegal content.

The report also proposes to amend copyright law, particularly some of its exceptions: the education one could extend to digital uses, while the short citation exception could cover, as an experimental measure, transformative works. The public domain could also be granted a positive definition, to clarify its scope. Interestingly, it is recommended to allow authors to permits adaptation of their works by third parties in advance, and even to bring works into the public domain on their own request, before the expiry of the 70 years from the author’s death time. The use of free licenses should be supported. For example, such licenses should be offered as an option by collective rights management organizations’ to their members for some of their works. Generally, public funding would be conditioned by the availability of works in digital forms and by a certain amount of free licensed creations. Some works created by public administrations, especially materials created by teachers, should be licensed under free or creative commons licenses. Those measures seem to be in relation to the improvement of legal supply’s quality and broader access of public to cultural content.

Finally, Lescure’s mission points out a range of arrangements that could be made to rationalize the complex financing system for culture, which would consist of allocating or re-allocating resources to specific purposes, or even create new taxation provisions. Probably the most worthy of mention is the proposed tax for smartphones and tablets that allows for reading and stocking content. 
As a general observation, it cannot be denied that Lescure’s report makes some far-going suggestions, both in form and in substance (reshaping of Hadopi system and the nature of proceedings, support to digitalization, improvement of the legal digital offer, important amendments to copyright law). The scope of the study was not limited to copyright, but also addressed aspects of public financing, taxation or institutional nature. Soft law is to a great extent recommended, through codes of conduct for intermediaries and sectorial good practices and recommendations in public administration and public-funded organizations. How well such policy, supposed to be tailored for copyright in the digital environment, will reach its goals is yet questionable. It is now up to the government to make choices and draw measures updating the cultural exception to the information society’s challenges.
Matthieu is a masters student at the University of Turku, Finland. He graduated from Université Jean Moulin Lyon 3, France in 2012. He is interested in IP law issues, and particularly in trademarks, about which he is writing his thesis in Finland.

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