Three Hundred Years Since the Statute of Anne, from 1709 to Cyberspace
Edited by Lionel Bently, Uma Suthersanen and Paul Torremans
Chapter 32: The Graduated Response and the Role of Intermediaries: Avoiding the Apocalypse or a Return to the Sources?
32. The graduated response and the role of intermediaries: avoiding the Apocalypse or a return to the sources? Pierre Sirinelli* 1 INTRODUCTION This is the final presentation of the congress. It is supposed to be part of a historical film, that of a 300-year construction! However, the law I have to tell you about is certainly not the most attractive stone. And I suppose that we will not be talking about it in 300 years. Unless, perhaps, out of curiosity and so on. It is a special law that is worth mentioning because it is indicative of trends. More a law of ‘means’ than content, that is to say what interests us: works and creators. The term ‘graduated response’ has been used in France to describe the possible legal responses to the question of illegal ‘peer-to-peer’ (P2P) exchanges. It is preferable to use the phrase ‘graduated response’ rather than the neighbouring ‘flexible response’, the latter being part of military (one dares not say ‘diplomatic’) language, borrowed from the Cold War and evoking an attitude based on violence and nuclear response.1 This concept of ‘graduated response’ makes it possible to understand the idea of the new sanctions that the French law, voted on 13 May 2009, and entitled ‘Creation and Internet’, was intended to introduce in the case of breach of literary and artistic property rights. These sanctions should be proportional to the offence and appear less severe, as opposed to the * Professor at Paris-I University (Panthéon – Sorbonne). This contribution...
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