Graduated response

Graduated response is a scheme designed to ensure respect for copyright on the Internet, firstly by sending warnings and, in the event of failure, by transmitting to the judicial authorities the file revealing facts likely to characterize an infringement of copyright.

The French regulatory authority for audiovisual and digital communication (Arcom) receives most of the reports of copyright infringement from sworn agents authorized by rights holders (copyright or neighbor rights) on protected works, and issues the warnings required by law (articles L. 331-19 and L. 331-20 of the French intellectual property code).

This preventive scheme reminds Internet connection holders of their obligation to ensure that their connection is not used to download or make available copyrighted works on peer-to-peer networks(article L. 336-3 of the French intellectual property code). The holder of an Internet contract may be a natural person (an individual) or an artificial person (such as an association, a company, a municipality, etc.).

After two warnings followed by repeat offences, a letter of notification may be sent, by recorded delivery and by electronic means, informing the contract holder that downloading or sharing of protected works has once again taken place from his or her connection, and that he or she is liable to legal sanctions. The letter invites the subscriber to submit his or her observations within 15 days, and reminds the subscriber that he or she may request a hearing within the same period, and that he or she has the right to be assisted by counsel.

The Arcom member in charge of the works protection mission may then decide to forward the file to the competent state prosecutor on the basis of the offence of gross negligence, which punishes the holder of an Internet contract who has not prevented the use of his connection for infringement purposes despite the warnings sent by Arcom(article R. 335-5 of the French intellectual property code). The maximum penalty is 1,500 euros (or 7,500 euros in the case of an artificial person).

He may also decide to refer cases to the judicial authorities on the grounds of infringement. The person responsible for making the content available, as identified during the investigation, is liable to a maximum penalty of three years' imprisonment and a penalty notice of 300,000 euros (or 1,500,000 euros in the case of an artificial person).