Decision no. 2009-580 DC of 10 June 2009 | Conseil constitutionnel 02/02/2023, 13:42 Decision no. 2009-580 DC of 10 June 2009 Act furthering the diffusion and protection of creation on the Internet A referral was made to the Constitutional Council on May 19th 2009, pursuant to Article 61, paragraph 2 of the Constitution, by Messrs Jean-Marc AYRAULT et al., Members of the National Assembly, with respect to the Act furthering the diffusion and protection of creation on the Internet THE CONSTITUTIONAL COUNCIL Having regard to the Constitution Having regard to Ordinance n° 58-1067 of November 7th 1958 as amended (Institutional Act on the Constitutional Council); Having regard to the Intellectual Property Code; Having regard to the Post Office and Electronic Communications Code; Having regard to Act n° 78-17 of January 1978 as amended on Data Processing, Data Files and Individual Liberties and to decision n° 2004-499 DC of July 29th 2004; Having regard to the observations of the Government registered in May 29th 2009; Having heard the Rapporteur 1. The parties making the referral for review by the Constitutional Council of the Act furthering the diffusion and protection of creation on the Internet contest the manner in which said statute was debated by Parliament and contend that sections 5,10 and 11 of said statute are unconstitutional. WITH RESPECT TO THE MANNER IN WHICH THE STATUTE WAS DEBATED BY PARLIAMENT 2. The parties making the referral argue that the Government failed to supply Parliament with objective elements of information needed to ensure clarity and accuracy of debate. They therefore claim that the statute was passed in an improper manner. 3. The Houses of Parliament had at their disposal, as is attested by the reports of the Committees called upon to examine or give their opinion on the Bill and by the minutes of debate, sufficient elements of information on the provisions of the Bill under debate. The argument raised is thus not supported by the facts. WITH RESPECT TO SECTIONS 5 AND 11 4. Firstly section 5 of the statute referred for review inserts into Chapter 1 of Title III of Book III of the first part of the Intellectual Property Code a section comprising Articles L 331-12 to L 331-45 devoted to the "High Authority for the diffusion of works and protection of copyright on the Internet". This new independent administrative authority is composed of a college and a committee for the protection of copyright. The college is responsible in particular for furthering the lawful offer of works and property covered by copyright or related rights. The task of the Committee for the protection of copyright is to trigger the new warning mechanisms and administrative penalties incurred by internet users who have failed to monitor access to the internet. 5. Secondly, section 11 inserts into Chapter IV of the same Title Articles L 336-3 and L 336-4. It defines the duty to monitor access to the internet and determines the cases in which internet subscribers whose access has been used in a manner such as to infringe copyright will escape the imposition of penalties. As regards the duty to monitor access to the internet: 6. The first paragraph of Article L336-3 of the Intellectual Property Code provides "A person who has subscribed to internet access to online public communication services is under a duty to ensure that said access is not used for reproducing, showing, making available or communicating to the public works or property protected by copyright or a related right without the authorization of the copyright holders provided for in Books I and II when such authorization is required". 7. Contrary to what is claimed by the parties making the referral, the definition of this duty is distinct from that of the offence of infringing copyright. It is defined in sufficiently clear and precise terms. When imposing this duty Parliament neither failed to exercise fully the powers vested in it by Article 34 of the Constitution nor failed to comply with the constitutional objective of intelligibility and accessibility of the law. As regards the penalties incurred for failure to comply with the duty to monitor access 8. Firstly, paragraphs 2 to 6 of the same Article L 336-3 provide " No penalty shall be imposed on an internet access holder in the following cases : If the access holder has installed one of the security devices referred to in the second paragraph of Article L 331-32; If the infringement of the rights referred to in the first paragraph hereof has been committed by a person who has fraudulently accessed public online communication services In the event of force majeure. Failure by the access holder to comply with the duty set out in paragraph one hereof shall not result in the incurring of criminal liability by said access holder". 9. Secondly, under Article L 331-27 : "When it has been ascertained that the subscriber has failed to comply with the duty defined in Article L 336-3 in the year following receipt of a recommendation addressed by the Committee for the protection of copyright accompanied by a signed acknowledgment of receipt or any other means likely to prove the date of the sending of said recommendation and its receipt by the subscriber, the Committee may, after a full hearing of all parties, impose one of the following penalties depending on the seriousness of the failure to comply and the use of https://www.conseil-constitutionnel.fr/en/decision/2009/2009580DC.htm Page 1 of 10