Vive la France?

french-flagAs often as the Pirate Party of Sweden was condemned at the World Copyright Summit Tuesday, speakers heaped praise on the French government for passing the Creation and Internet law implementing a system of “graduated response” (i.e. “three-strikes”) to policing illegal file-sharing.

“I strongly believe that if we’re going to be successful in this fast-paced digital age, a solid partnership between the copyright community and the Internet Service Providers is crucial,” Sen. Orrin Hatch (R-Utah) said in a morning keynote. “Many countries have begun to take action by working closely with ISPs to curb online piracy. For example, France has adopted a three strikes law, which calls for ISPs to suspend a subscriber’s service if they are accused three times of pirating copyrighted material. Across the globe, from Japan to the UK, from Australia to Brazil, there have been engaging discussions within the industry on how best to proceed on this front.”

One of the highlights of Day 1 of the two-day gathering, in fact, was expected to be a speech by French Minister of Culture Christine Albanel, the official most closely associated with the new French law apart from President Nicolas Sarkozy. Mme. Albanel wasn’t able to make it to Washington, however, so her speech was read from the podium by France’s ambassador to the U.S., Pierre Vimont.

The speech offered a full-throated defense of the new law and also praised other countries for wisely following the French example.

“I am very happy that France is not alone in this struggle,” she said. “For more than a year, in a growing number of countries, the cultural and Internet worlds have been coming together to block piracy through graduated warnings and sanctions.”

She mentioned the same countries as Hatch and added South Korea and Norway for good measure.

christine-albanelThe reason for Albanel’sabsence, however, was the possibility that France’s Constitutional Council would rule on Tuesday on the constitutionality of the new law (it didn’t as it turned out). “I’m sure you can understand why the minister felt she must remain in France,” Vimont said.

While such a review is routine in France, the council’s official deadline for issuing a ruling is not until June19. A ruling early this week would be ahead of schedule, which is not routine in France.

Why the apparent rush? One guess would be the the council wants to issue its ruling before the European Union’s Council of Telecoms Ministers votes June 12 on whether to accept a European Parliament resolution declaring Internet access to be a “fundamental right.” If, as expected, the resolution is adopted it would set up a potential clash between France’s new law and EU law.

“It’s not a game,” the director of standard setting at the Council of Europe Jan Kleijssen, told IPWatch. “Election campaigns like the one of [President] Obama, or, in part, the one for the European Parliament, now take place on the Internet. Cutting access to this information [would] clearly violate the political and civil rights of people.”

Kleijssen predicted that the French law, known by its French acronym HADOPI, will ultimately end up in the European Court of Human Rights.

cohn-benditMore immediately, it could also end up in the European Court of Justice, which has the power to rule that it conflicts with EU law. Among the big winners in Sunday’s European Parliament voting (apart from the Pirate Party of Sweden) was France’s Green Party coalition headed by one-time anarchist and student radical Daniel (Danny-the-Red) Cohn-Bendit, which won 16.3% of the vote, a mere 0.2% behind the Socialists.

In the run-up to the election, Cohn-Bendit called the law “completely stupid,” and vowed to challenge it.

“France did not take into account the European decision,” he said (in auto-translation) after HADOPI was passed. “OK, but litigants may invoke the [European] law if convicted. It will be for the European Court of Justice to decide who has the prerogative.”

France’s Socialist representative to the European Parliament, Guy Bono, has also vowed to challenge the French law before the EU Court of Justice.

Far from following France’s lead, in other words, it’s quite possible that the rest of Europe will ultimately reject the French approach, to the point where France is forced to back down.

Vive la France indeed.

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