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08 November 2016 à 14:20

The fight against piracy: Lessons to be learned from Germany?

Although it is difficult to establish figures on piracy, clear differences have emerged between the situation in France and Germany, in terms of the scale of the problem, the methods employed to curtail it, and the effects of these preventative and punitive measures.

Back in 2015 at the 13th Franco-German Film Meetings, Sunna Altnöder, who is now diplomatic adviser to the French Ministry of Culture and Communication, made a presentation of the specific features of Germany's anti-piracy campaign. A new benchmark report, set out below, that was produced with the participation of Fabien Arséguel, director of the German distribution company Alamode, highlights the importance of this phenomenon and the lessons France can learn from its German neighbors.

Prosecution of offenders: A more offensive strategy in Germany

France benefits from a pioneering organization in the campaign against infringements of intellectual property rights for film and television works: the "Association de Lutte contre la Piraterie Audiovisuelle" [Association for the Fight Against Piracy in the Audiovisual Sector] (ALPA). Founded in 1985, with 50% of its funding provided by the CNC, the goal of this association is to combat counterfeiting and piracy, initially on physical formats and now extended to include internet usage.

In addition to this, an administrative authority entitled the "Haute Autorité pour la diffusion des œuvres et la protection des droits sur Internet" (Hadopi) [High Authority for the Transmission of Creative Works and Copyright Protection on the Internet], is dedicated to the problematics associated with the distribution of audiovisual works and their protection on the internet. This government body was created following the enactment of two laws in 2009, the first of which promoted the distribution and protection of creative works on the internet, while the second related to the legal protection of literary and artistic property on the internet.

In Germany, the "policing of illegal downloading" is carried out by the GVU (Gesellschaft zur Verfolgung von Urheberrechtsverletzungen, which translates as the "German Federation Against Copyright Theft". Founded in 1984 and financed by the FFA Filmförderungsanstalt (which has a similar role to the CNC in France), the GVU conducts anti-piracy campaigns aimed at the general public that benefit from high visibility and are particularly aggressive. One such campaign in 2003 bore the theme "Pirates are Criminals!" Slogans such as this were subsequently considered overly extreme, and the federation has since softened its tone. Investigations led by the GVU are operated by former police officers, detectives, and legal experts, who can refer cases to the public prosecutor and can appear as witnesses in criminal cases.

Germany does not have an administrative authority responsible for controlling this problem, instead engaging the services of legal firms specialized in tracking shared data, who represent intellectual copyright owners. This delegation of powers to the private sector has led to the liberalization of copyright protection. The penalty procedure has thus become rapid and highly efficient. The aggressive stance of these legal firms is well-known and feared by the general public. This system, which results in the attribution of fines, is a highly lucrative business that above all benefits the lawyers involved, with, nonetheless, a number of dishonest practices emerging, such as bogus law firms.

Faster disciplinary proceedings in Germany

In France, the HADOPI Commission acts on receipt of a complaint from a copyright holder, or representative, and requests the internet service provider (ISP) concerned to supply the names of the accounts used. It then implements a three-stage progressive procedure:

  1. An email message is sent to the IP address of the offending internet access subscriber within two months of receiving the complaint. As at September 30, 2016, 7,477,916 of these messages were sent by the High Authority.
  2. If the Commission is notified of a repeat offense within six months, it can send a second email or a certified letter requiring a signature.
  3. If the Commission is notified of a repeat offense within a period of twelve months following this letter, it can, after informing the internet subscriber that he or she may be pursued under criminal law, refer the case to the courts. As at September 30, 2016, 1,209 cases of legal action have been reported, including 68 convictions and 78 alternatives to criminal conviction ordered.

In Germany, the legal firms require access to the IP address of the internet account utilized. The internet subscriber receives, without a legal warning and usually within two weeks of the incident of illegal downloading, a formal notice from the legal firm requiring the payment of a certain sum of money. The copyright owners have two possible routes of action, on two levels:

  • Formal notice: An obligation for the infringer to pay a fine accompanied by a prohibitory injunction and a requirement of compensation for the non-acquisition of copyright licenses.
  • Legal action: A protocol of infringement is drafted, and sent to the host server or to organizations authorized to enforce the law, such as the GVU.

A very different system in Germany, often more costly for offenders

In France, an internet subscriber who has not discontinued the utilization of his or her internet connection for purposes of infringing copyright can receive a fine for "gross negligence" of up to 1,500 euros (and 7,500 euros in the case of a legal entity). Fines imposed on individuals range, in reality, from 50 to 1,000 euros, with or without a conditional sentence. The offense of copyright infringement is punishable by a three-year prison sentence and a fine of 300,000 euros.

In Germany, the average amount of fines is 1,000 euros, in straightforward cases. In reality, many fines are not ultimately applied as many internet users appeal on the grounds of unjustified proceedings—particularly on the grounds of unauthorized disclosure of their personal details by the ISP (Internet service provider). However, the sums that internet users do not pay are often incorporated into their legal fees, which can be significantly higher.

Key cases in the fight against piracy

In France:

2015: After an investigation conducted by the ALPA, the indexing website Wawa-Mania, which offered users links to illegal downloads, was brought to trial and ordered to pay the sum of 15.6 million euros in damages and penalties.

2016: A criminal indictment was filed against the administrator of the illegal streaming website FullStream following an operation mounted by the police, assisted by the ALPA (who had lodged the complaint) and the SACEM (French Society of Authors, Composers and Publishers of Music). 2,400 television series and 10,100 films were identified on the website, with an estimated 1 million single visits of the website per month, according to Médiamétrie.

In Germany:

2009: A lawsuit was filed against YouTube, initiated by the GEMA (the German equivalent of the SACEM in France). Some of the music content on the website has since been blocked.

2011 and 2014: A lawsuit was filed, on the request of the GVU, against kino.to and its successor kinox.to, indexing websites that provide links to users to illegally download content. The founder of the website was convicted and sentenced to 4.5 years in prison.

2014: A lawsuit was filed, on the request of the GVU, against the illegal forum boerse.bz. 120 searches were carried out at residences of the infringing parties, and the website was shut down.

2015: A large number of court orders were issues to users of the torrent network Popcorn Time.

What lessons can be learned from the German example?

The anti-piracy measures applied in Germany are more repressive than in France. Due to a sophisticated system put in place to protect the holders of intellectual property rights, the filing of formal notices to offenders is immediate. Even if a large number of offenders succeed in avoiding fines, these fines are generally higher.

One key aspect that stands out is that the uncompromising stance of the authorities appears to inhibit the act of piracy: German people view the penalties as a reality, which has been reinforced by a number of anti-piracy publicity campaigns. By contrast, in France, the ALPA registered, out of a total of 46.9 million French internet users, 13.5 million visits of websites relating to copyright infringement of audiovisual content (including peer-to-peer file sharing, downloading, and streaming), representing a projected increase of 18.4% in 5 years.

Furthermore, the fight against piracy in Germany can perhaps partially explain the healthy state of the country's DVD/Blu-Ray market. In this way, even if changes in consumer habits have undoubtedly played an important role, the turnover for sales of DVD/Blu-Ray content remains high in Germany. While in France, this market has suffered a drastic decline of 47% in 7 years (798 million euros in 2014 against 1,494 million euros in 2007), this market dropped back by only 7% in Germany (1,492 million euros in 2014 against 1,603 million euros in 2007).

It is also important to take into consideration the difference in pricing policies between the two countries. The average sales price for a new release DVD in 2014 was 15.54 euros in France and 13.90 euros in Germany: the purchase of the product is more affordable in Germany and its price decreases more quickly than in France after the initial release date. In addition to this, German people show a strong interest in the protection of their personal data on the internet, and no doubt show a greater attachment to objects from the past and physical objects. It must also be remembered that broadband internet service infrastructure (which provides the essential technological environment for piracy) is not as highly-developed in Germany as it is in France.

The fact remains that on both sides of the Rhine today, it is becoming more difficult to keep control of the development of illegal streaming practices ("live" viewing of content, without saving files to a hard disk on a computer or other device). Holders of intellectual property rights are required to pay specialized companies to obtain the destruction of links leading to their works. However, streaming techniques take over from peer-to-peer sharing systems and continue to spread faster than the law can keep up with fining offenders. Indeed, according to French and German laws concerning intellectual property rights, internet users cannot be found guilty of infringement of copyright laws since streaming is only a temporary reproduction of content. The European Union Court of Justice ruled to this effect in a judgment handed down on June 5, 2014, in the case of "Public Relations Consultants Association Ltd vs. Newspaper Licensing Agency Ltd."

In Germany, in an effort to tackle the problem of streaming, holders of intellectual property rights often use the services of firms specializing in the destruction of links leading to their works, but this is a costly undertaking that adds to the exhibition fees charged by film distributors. Through the intermediary of these specialized firms, rights holders can only take libel action against content publishers or servers that host the websites which are infringing on their intellectual property rights.

This represents a new challenge for German rights holders, who currently deplore the lack of political mobilization regarding this problem and view recent French progress in this area with envy, such as the signature by advertisers of a "Code of good practice in advertising to protect intellectual property rights."

Eléonore Magnin & Yoann Ubermulhin

Sources: CNC, GfK, www.alpa.paris.com, www.hadopi.fr

(English translation for information purposes only)

Author : Yoann Ubermulhin

Latest update : 22 November 2016 à 14:20 CET

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Alamode

Activities :  Foreign distributor (feature film), Foreign production company, Buyer (feature films)

Recent filmography : Elementary, In Bed with Victoria, Sky, ...

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CNC (Centre national du cinéma et de l’image animée)

Activities external to film production :  Organization, Unifrance Partner

FFA Filmförderungsanstalt

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Franco-German Film Meetings - 2016

Type : Professional meetings

Theme : Franco-German co-production

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