Law & Technology
Master Thesis
Is “three strikes and you’re out” an appropriate measure for online copyright infringement?
Manpreet Kaur Singh
ANR: 328611
Email: [email protected]
Thesis Supervisor: S.L. (Sander) Gellaerts
Law and Technology, Faculty of Law
Tilburg University
June 2011
Table of Contents
1. INTRODUCTION ...... 4 1.1 Background ...... 4 1.2 Research Question ...... 5 1.3 Methodology ...... 6 1.4 Intended Outcome ...... 7 1.5 Thesis Structure ...... 7 2. RESPONSE TO COPYRIGHT INFRINGEMENT ...... 9 2.1 Introduction ...... 9 2.2 Copyright Law ...... 9 2.2.1 Relevance of Copyright Law ...... 9 2.2.2 Music, Film and Games Sub-industries ...... 10 2.2.3 Accurate and Reliable Figures? - Costs of Copyright Infringement ...... 12 2.3 History – The copyright journey ...... 15 2.3.1 The 15 th Century and 16 th century ...... 15 2.3.2 The 17 th Century ...... 17 2.3.3 The 18 th Century ...... 18 2.3.4 The 20 th century onwards ...... 19 2.3.5 EU Copyright Law and US Copyright Law ...... 20 2.4 Measures to combat copyright infringement ...... 21 2.4.1 The 4 Modalities – Law, Technology, Social Norms and Market ...... 22 2.4.2 [LAW] Notice and Takedown ...... 24 2.4.3 [LAW] Litigation ...... 24 2.4.4 [LAW] Graduated Response and Three strikes approach ...... 25 2.4.5 [LAW] ADR System modeled on ICANN’s UDRP...... 29 2.4.6 [TECHNOLOGY] DRM ...... 29 2.4.7 [SOCIAL NORMS] Education...... 31 2.4.8 [MARKET] Business Models ...... 31 2.4.9 US and EU – Comparisons and Conclusions ...... 32
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3. ACCESS TO INTERNET ...... 36 3.1 Introduction ...... 36 3.2 History from then to today: The internet journey ...... 36 3.3 Internet as a right ...... 38 3.3.1 Freedom of Expression ...... 38 3.3.2 Freedom of Information ...... 40 3.3.3 Freedom to access information, Human rights declaration – does it translate to a right to internet access? ...... 40 3.3.4 Is it a right? ...... 41 3.4 Is right of Access to Internet important in society? ...... 44 4. PROPORTIONALITY – AN APPROPRIATE MEASURE? ...... 46 4.1 Introduction ...... 46 4.2 Determining Appropriateness ...... 46 4.2.1 Proportionality and Subsidiarity ...... 46 4.2.2 Examples of Disproportionate and Proportionate damages ...... 48 4.3 Back to basics – purpose of copyright law ...... 51 4.4 Proportionality ...... 53 4.5 Subsidiarity ...... 54 4.6 The Future ...... 55 5. CONCLUSION...... 57 BIBLIOGRAPHY ...... 59
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1. INTRODUCTION
1.1 Background Copyright is a legal term describing rights given to creators for their artistic and literary works. The original creators of works protected by copyright, and their heirs, have certain basic rights which include the exclusive right to use or authorize others to use the work on agreed terms. The creator of a work can prohibit or authorize the work’s reproduction, its public performance, a recording of it, its broadcasting, its translation or its adaptation. The creator or the owner of the copyright in a work can enforce rights upon evidence of copyright infringement. Many of these creative works protected by copyright require mass distribution, communication and financial investment for their dissemination and therefore the creators often sell their works to individuals or companies in return for payment.
The entertainment conglomerate comprising of the film, music and gaming industries as a whole holds a lot of these exclusive rights and are feeling a sense of urgency especially in today’s world in wanting to combat copyright infringement. According to Frances Moore, CEO of the International Federation of the Phonographic Industry (IFPI), an organization that represents the recording industry worldwide, the key statistic published in its report of 2011 summed up the story of recent years – “on one hand, spectacular growth in digital revenues, up more than 1000 per cent in seven years; but on the other hand, the loss of nearly one-third of the value of the entire recorded music industry” 1. The report goes on to state that digital music piracy exists on a vast scale and is growing globally with illegal file-sharing on peer-2-peer (P2P) networks remaining in widespread existence, and alternative forms of illegal distribution such as cyberlockers, illegal streaming services and forums also a serious and growing problem. 2
The industry has employed several methods of reducing copyright infringement such as through education, innovation, and enforcement 3. Litigation has also been at the forefront of the copyright combating saga. For example, the Recording Industry Association of America (RIAA) has been pursuing copyright infringers directly through massive litigation for a 5 year continuous period from 2003 to 2008. 4 Although the judgments have been favorable for the industry, it has been noted that the reputation of the music industry has soured in the eyes of many young users 5 – the very clients that the industry are trying to entice. Was this appropriate? The question of appropriateness and how to determine when a measure is or isn’t appropriate is a central question of this thesis.
1 Digital Music Report 2011 by International Federation of Phonographic Industry (IFPI), p3 http://www.ifpi.org/content/section_resources/dmr2011.html
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Another more recently introduced concept within this area is the Graduated Response. “Graduated response” means each time a copyright holder finds an infringement, they increase their response. 6 Therefore the first time infringement is found, a warning is issued, the next time a threat to use or pursue criminal penalties may arise, and the third strike would be something more severe, and so on, with the final step being internet disconnection.
The use of this term is not yet uniform with different countries applying it differently, some countries using it more extensively than others. An example of the graduated response is the ‘three strikes and you’re out’ approach. This approach involves the issuing of up to two warnings to alleged online copyright infringers with the third warning resulting in internet disconnection by the user’s internet service provider, if a user fails to correct his or her actions in the act of infringing copyright. There are opposing views on the fairness of such a measure and what the legal position of right to internet access is for every individual, especially in this age of digital media proliferation.
1.2 Research Question Following on from the above discussion, the main research question is:
Is “three strikes and you’re out” an appropriate measure for online copyright infringement?
The thesis attempts to answer the above question by firstly looking at what measures (including copyright laws) are currently in place to clamp down on infringement, performing an in-depth analysis on the graduated response measure. A conclusion is made on the importance of copyright to society. A comparison is then done by looking at internet access and determining whether it is a fundamental human right, and how important it is to society. The reason for looking at internet access is because the most severe outcome of the three strikes and you’re out approach (‘three strikes approach’) is internet disconnection.
In the Charter of Fundamental Rights of the European Union, article 17 states that intellectual property is a fundamental right for every individual. 7 Additionally, article 11 states that freedom of expression and information is a fundamental right for every individual. 8 Which is more important and essential to daily living and of benefit to society shall be explored in this thesis.
As a result, there are several sub-questions as follows:
1. How important is copyright to society?
6 Ruth Suehle, “Introduction to “three strikes” copyright infringement rules in Dragon*con EFF track”, 3 September 2010, http://opensource.com/life/10/9/introduction-three-strikes-copyright-infringement-rules-dragoncon-eff- track
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2. How important is internet access to society?
The thesis shall look at the conditions both in the United States (‘US’) and European Union 9 (‘EU’), one involving a common law and the other a civil law regime respectively. The reader is then taken through the analysis of the appropriateness of the three strikes approach using the principles of proportionality and subsidiarity. These are widely used principles for the purposes of determining if an action is appropriate and therefore will be used as the basis for the legal analysis in the thesis.
What is an appropriate measure depends on the perspective and functions of copyright law taken. There are two perspectives at present – the common law and the civil law approach to copyright. The common law approach involves the right to ensure payment, looks at copyright as a real property right, and as a result, is open to more measures to deal with infringement including even possibly imprisonment. On the other hand, the civil law system protects some public domain issues, views copyright to be protecting information and not real property, and is open to enabling more stimulation which would result in more information being available. Perhaps in the end the answer to the question of appropriateness would be the same from both the common law and the civil law perspective.
Sooner or later the issue of online copyright infringement will be facing every government in the world. Therefore, although the discussions will be based on the US and EU systems, it technically could apply to any country regardless of geographic location and legal system. Being a student of copyright law and having an interest in online activities, the writer decided to look at the consequences of the three strikes approach as it may possibly have a direct impact on her potential online endeavours in the near future.
The focus of this thesis shall be on the online entertainment industry (consisting of music, film and games) and on peer-to-peer file sharing activities.
1.3 Methodology How does one determine whether a measure is appropriate or not? One may do so by using the legal principles of proportionality and subsidiarity. Proportionality requires that an official measure must not have any greater effect on private interests than is necessary for the attainment of its objective 10 – that one may only act to the extent that is needed to achieve its objectives and nothing further. 11 Subsidiarity involves asking if something can be done using less power and resources and still achieving the desired results.
9 The United Kingdom is excluded from the EU classification for current purposes as the UK is a common law country as opposed to most of the EU countries which are predominantly civil law based. 10 Brian Harris and Andrew Carnes, ‘Disciplinary and Regulatory Proceedings’, Proportionality, http://regulatorylaw.co.uk/Proportionality.html
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The way that the question shall be answered is firstly to look at the current measures in place for combating copyright infringement. This shall be done by browsing through articles, looking at implemented legislation, and at policies and law being proposed for future implementation, especially the graduated response. The results shall be presented in the form of tables. A discussion of the opinions on the success and effectiveness of the measures shall be undertaken. Following that, an analysis shall be done on the graduated response and the three strikes approach looking at the procedure and penalties involved in various countries by way of journals, news articles and online blogs. Using similar sources, the issue of internet disconnection shall be explored. Finally, applying the principles of proportionality and subsidiarity, the current copyright measures are assessed including the three strikes approach, with the standard being the higher the levels of proportionality and subsidiarity, the more appropriate a measure is. Some real life events shall be used to provide examples of measures that are disproportionate to enable a better comparison.
1.4 Intended Outcome The intended outcome of the thesis is to present strong arguments in favour of internet access over copyright law and to explain that when put in a situation where a selection has to be made between copyright and internet access that internet access will and should win hands down. The internet is the way of the future, and certainly the way of the present. Any law, regulation or policy that is implemented which contains a penalty of internet disconnection is completely inappropriate and wrong for today’s society – to the extent of breaching a fundamental human right. The laws of copyright are in need of a major overhaul as the internet platform of today enables and allows for so many facilities and functions that were not in the least envisaged or thought of by the creators of copyright several centuries ago. The decision makers of today’s society need to acknowledge and accept this fact and act accordingly by creating and modifying laws and regulations aimed at ensuring that the fundamental right to internet access is maintained at all costs while at the same time ensuring that the rights for the underprivileged are increased to the level of the rest of the global society.
1.5 Thesis Structure In Chapter 2, the history of copyright shall be explored from the fifteenth century to present day followed by a discussion of the situation facing the industry with some facts and figures. The section then moves on to discuss the costs of copyright infringement. Are the figures used by the music industry accurate or is it an over-exaggeration; and an analysis and comparison of the loss of revenue in the music industry to the amount of damages in penalty faced by individuals sued in recent cases is performed. The efforts so far by the various institutions in trying to combat copyright infringement are then analyzed including the three strikes approach and the graduated response regime. The section then ends off with a comparison of the US and the EU. The central theme of this chapter is the journey of copyright from the beginning to present day, and what the future might be.
The most severe outcome of the three strikes approach is internet disconnection. In Chapter 3 the internet is introduced with a brief description of its journey from beginning to present day. Then, the
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question of whether internet access is a human right is posed and explored. And if it is not a human right, whether it should be, highlighting recent real life examples of when internet access was terminated for a period of time. It also explores the consequences of loss of internet access in today’s world and the severity of that consequence on one’s standard of living.
Chapter 4 is about determining whether the three strikes approach is an appropriate measure using the principles of proportionality and subsidiarity. It then discusses examples of disproportionate measures. The chapter then revisits the purpose of copyright law, and subsequently arrives at a conclusion as to the level of appropriateness of the three strikes approach, undertakes a brief discussion of the future. The thesis then concludes, in Chapter 5, with a summary of the research findings.
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2. RESPONSE TO COPYRIGHT INFRINGEMENT
2.1 Introduction The current state of online affairs in relation to copyright is divided with one side strongly fighting for more restrictive laws to expand the reach and scope of copyright and the other side fiercely opposing it. This chapter commences by discussing the relevance of copyright in general and also specifically relating to the music, film and games industry. The next issue discussed is the history of copyright – its origins and how it all began. The subsequent section then looks at how the industries that heavily rely on copyright are dealing with the problem of online ‘massive infringement’ 12 - by using different measures that have been implemented, or are being considered for implementation in the near future. The section then concludes with a comparison of the measures that are in place in the US and the EU, in terms of the success rates and areas to work on for solutions in the future.
2.2 Copyright Law
2.2.1 Relevance of Copyright Law The traditional justification for copyright law is an economic one: Legally sanctioned monopolies for inventions and artistic creations provide rewards, which are understood to be essential to causing people to invent and create. 13 It is also important in that it offers people with employment opportunities within the industry. Copyright law provides a mechanism for defending employment rights and the opportunities to stimulate creativity enabling the advancement of innovation and development of knowledge and culture within society. Therefore, these goals of copyright law are considered to be important to society and as a result should be protected by law.
However, there is a growing population of those who are of the opinion that the goals mentioned above can be achieved through methods that do not require strict copyright law such as through open source 14 and using the creative commons 15 system.
These are promising alternatives to the regimental approach taken by enforcers of copyright, and in this writer’s opinion, would be something that has far greater potential and meaning for all users of the digital medium of the internet. It is also in line with the arguments put forward by Karl Fogel and Rick Falvinge that copyright was designed to subsidize distribution and not creation. 16
12 Bridy (2011), note 2, p3 13 Eric E. Johnson, ‘Intellectual Property’s Great Fallacy’, 2011, p1 14 For more information see Open Source Initiative, http://www.opensource.org/
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For the sake of the digital natives, the focus and importance of copyright should shift to something more practicable in today’s day and age. Only time will tell where and how these differing opinions will affect the copyright industry.
2.2.2 Music, Film and Games Sub-industries It is important to note that the cost of damages within the entertainment industry differs to various extents, depending on the type of product each of the sub-industries offer. In a recent study conducted by several organizations as a joint effort in The Netherlands, 17 a clear distinction was made between the music, film and games industry as each of those sub-industries had different factors affecting them and as a result were each in different situations in terms of online copyright infringement.
The music industry is facing a shrinking market for its products due in part to the turnover loss directly reflecting the sharing of digital music files, through P2P networks and other means. 18 Its defensive strategy (consisting mainly of massive lawsuits) has not succeeded in capping the amount of music sharing and has failed to come up with an early answer to today’s new digital reality. 19 As a result, organizations such as Apple have been able to claim key market positions in marketing and delivering digital music files. 20 According to the report, the total market for audio formats, including physical tangibles and downloads, is shrinking faster than Dutch record companies’ total revenue, which suggests that the record labels have found new sources of revenue, in line with the industry’s extensive effort to tap new income sources. 21 An increase in the development of marketing and income generating models is occurring whereby the income generated from those is not so much directly from music recordings, but increasingly by live concerts, merchandising and sponsorship, through mechanisms such as the 360- degree contract. 22 It has been stated that the new models still cater for music recordings, but show that in the future, the industry is not likely to be able to survive profitably on only music recordings. 23
The film industry is still enjoying growth in several markets such as cinema visits and DVD sales, even though DVD rentals have decreased. 24 It has been noted that the difference with the music industry could be because film sharing has not taken off on as large a scale as music sharing. 25 However, if this is true, then it has been highlighted that increasing broadband penetration might also result in the film http://questioncopyright.org/promise
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industry to record less growth or even reduce in size, subsequently causing it to feel the same sense of urgency that the music industry feels to reinvent its business model. 26 The nature of films also adds to the disadvantage as after watching a film once, most viewers are not likely to want to watch the same film again, the way music is listened to more frequently, within a short space of time from first experiencing the content. 27 Therefore, free downloading is more likely to result in substitution in the film industry as compared to the music industry. 28 A warning in some sense was made that the film industry should not allow itself to be complacent by the increasing turnovers, as file sharing to get to know a product, which downloaders may ultimately buy, is less applicable to the film industry as it is to the music world. 29
Yet another scenario is painted within the games industry which, out of the three sub industries, is experiencing the most growth and success, especially within the console games and related hardware sector, and the extent of file sharing is a lot less in console games than in PC games, where turnover is now negligble. 30 The factor that makes the official game release so appealing is the combination of specific platform, restricted hardware, software and content, which also provides large producers and distributors within the industry more scope and possibility to ensure profitable activity. 31 Such opportunities are practically non-existent in the music and film industries. 32
It was stated that this industry might be more equipped to prevent or mitigate the file sharing phenomenon that has plagued the music industry. 33 A further advantage of the games industry is the fact that product innovation and design are much more prevalent in the gaming world than in the music and films world. 34 It is also less complex for the games industry to join forces with the music industry to innovate and produce music games, as is starting to happen. 35 It has further been written that it should not be surprising if the games industry ends up being the winner in the battle for young consumers’ limited spending money, taken from the fact that the share of music is gradually declining and the share of games is showing explosive growth within the relatively constant size of the entertainment market as a whole. 36
26 Huygen et al (2011), note 17, p5 27 Huygen et al (2011), note 17, p5 28 Huygen et al (2011), note 17, pp5-6 29 Huygen et al (2011), note 17, pp5-6 30 Huygen et al (2011), note 17, p5 31 Huygen et al (2011), note 17, p5 32 Huygen et al (2011), note 17, pp5-7 33 Huygen et al (2011), note 17, p5; See also GamesIndustry.Biz website, Search for “music and games industries” produced the following results: http://www.gamesindustry.biz/search.php?q=music+and+games+industries ,
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2.2.3 Accurate and Reliable Figures? - Costs of Copyright Infringement An issue that needs to be explored is whether the industry as a whole is really losing the amounts of money that is being claimed and reported that they do. According to the International Federation of the Phonographic Industry (IFPI), an organization which represents music industry trade associations worldwide and which collated studies from 16 countries over a four year period, an estimated 40 billion music files were illegally shared in 2008, which represents 95 percent of all downloaded music. 37
Peter Yu in his article wrote that for the industry to make convincing arguments, it needs to provide credible empirical support substantiating the claims they make to the media. 38 He provides several instances of where the figures stated were questionable. For example, the latest study by the Business Software Alliance (‘BSA’) estimated the amount of piracy in business software to be more than $50 billion worldwide. 39 The International Anti Counterfeiting Coalition and the International Chamber of Commerce estimated the global trade in illegitimate goods to be “approximately $600 billion annually” based on an estimate of “5 – 7% of world trade”. 40 The figures supplied by the Organization for Economic Cooperation and Development (OECD) for counterfeit and pirated goods in international trade were estimated at $250 billion in 2007. 41 And lastly, MarkMonitor, a brand protection and management firm, released a report showing that “traffic generated to sites suspected of offering pirated digital content or counterfeit goods was over 146 million visits per day, representing more than 53 billion visits per year”. 42 Yu continues “if these figures are not problematic enough, “a number of industry, media and government publications have cited an FBI estimate that US businesses lose $200 - $250 billion to counterfeiting on an annual basis”. 43
However, and disappointingly, the US Government Accountability Office found that this figure “cannot be substantiated or traced back to an underlying data source or methodology” 44 even
37 Bridy (2010), note 4, p83; See also IFPI, ‘Digital Music Report 2009: New Business Models for a Changing Environment’, 2009, http://www.ifpi.org/content/library/DMR2009-real.pdf
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though government agencies have been cited repeatedly as sources to provide authority and enhance credibility. 45
Moving to another part of the world to illustrate the extent of this problem, according to an article published online by one of Australia’s leading newspapers, “piracy cost the core content industries – music, film, television, software and video games - $900 million last year. That will rise to $5.2 billion by 2016, with an estimated loss of $18 billion between 2010 and 2016.” 46
A subsequent article titled ‘No info can be found about mysterious report claiming Australia as a ‘nation of pirates’’ was published in response. 47 The writer of that article and his associates have been trying to track down the report and also the organization that wrote it, but was having trouble coming up with any information at all writing that “No one wants to provide the report, and there seems to be no significant evidence that the company that wrote the report is a real company.” 48 The troubling fact, he adds, is that apparently many in the Australian government are relying on the information in that report cited previously to make important decisions on changes in copyright law. 49
A day after the article above was published, the same writer then managed to locate the report, 50 and noted in a further article, that it was “even more ridiculous than we had initially expected”. 51 The basis for the article published in the Australian newspaper above, was the TERA 52 report from 2010 which used “such outrageous assumptions as to not even pass the most basic sniff test”, with the researchers not having made any attempt to determine the accuracy of the TERA report, nor to respond to any of the debunked points. 53 Another criticism is that it assumes that the volume of online infringement grows
45 Yu (2011), note 38, pp25; See also US Government Accountability Office (2010), note 43 46 Neil McMahon, The Age, ‘Nation of unrepentant pirates costs $900m’, 6 March 2011, http://www.theage.com.au/technology/technology-news/nation-of-unrepentant-pirates-costs-900m-20110305- 1bix5.html
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at the same rate as IP traffic and assumes the rate at which the industry will grow – since it’s making up a number for what the total jobs “should” be, it can just create whatever justification that it wants and claim any job loss number it wants to name. 54 As the writer put it, “the whole thing is a house of cards built on nothing.” 55
The Australian Federation Against Copyright Theft (AFACT) released a report titled “Economic consequences of movie piracy” in February 2011 which revealed that the Australian economy is losing $1.37 billion every year from illegal downloading. 56 Kim Heitman of Electronic Frontiers Australia (‘EFA’) wrote that that is “an alarming sum – or rather it would be, if we could take it at face value”. 57 She then proceeded to state that “the copyright industry is well known for offering up gargantuan figures that don’t hold up under real scrutiny”, and then set out a list of comments with the purpose of challenging the accuracy and correctness of the report. 58 One of those comments is downloads have an advertising effect – both on the product downloaded and future releases which must be offset against the lost sales. 59 Another comment is repeated studies have demonstrated that the entertainment industry vies for money and commitment of time with all the other forms of entertainment. 60
It was a situation of two separate reports released within weeks of each other by the Australian entertainment industry, trying to outdo each other in questionable assumptions and extrapolations. 61 The writer is confident to claim that she would not be surprised if similar incidents take place in other parts of the world.
There have been some positive actions towards resolving the lack of credibility for example in 2008, the US Congress directed the US Government Accountability Office (GAO) to provide information on the quantification of the impacts of counterfeit and pirated goods and emerged from the study with a report, as part of the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO- IP Act). 62 After interviewing many experts and going through the relevant literature, GAO writes that it can’t make any solid conclusions about the financial effect piracy has on the economy as a whole citing lack of data as one of the reasons. 63 One of the problems highlighted by the GAO is that government
54 Masnick (2011), note 50 55 Masnick (2011), note 50 56 AFACT, ‘Study reveals $1.37 billion loss to Australian economy from movie piracy’, http://www.afact.org.au/pressreleases/2011/17-2-2011.html ,
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officials admit that they simply rely on statistics and reports from the entertainment industries without conducting research on their own, resulting in the reports lacking transparency about the source of the figures and are often written to sell a political agenda through lobbying efforts. 64 The report however did note that piracy can have several benefits for consumers and businesses such as companies that experience revenue losses in one line of business, such as movies, may also increase revenues in related or complementary businesses due to increased brand awareness. 65 For example, companies may experience increased revenues due to the sales of merchandise that are based on movie characters whose popularity is enhanced by sales of pirated movies.66
Another aspect of the report is the positive impact piracy has on the revenues of third party companies for example the use of routers. 67 One of the more interesting benefits of piracy stated in the report is that it encourages innovation – interesting as it is the exact opposite of what copyright holders argue. 68 However, some of the innovation may be oriented toward anti-counterfeiting and antipiracy efforts, instead of enhancing the product for consumers. 69 The conclusion of the report is that it is uncertain what the financial consequences of piracy are for the economy, but blindly trusting statistics and reports from the entertainment industry is not a good idea. 70
2.3 History – The copyright journey Once it has been realized how the idea of copyright and the copyright owner has been created and constantly revised throughout history, it will be easier to elaborate a new set of concepts more suited to the peculiarities of today’s situation and to discuss the legal regulations, instruments and procedures that can mediate between the conflicting interests and between tradition and innovation.71
2.3.1 The 15 th Century and 16 th century The history of Anglo Saxon copyright can be traced to the Stationers’ Company of London where in 1403, a guild of writers of text-letters, bookbinders, booksellers, and parchminers, was formed in London. 72
In 1476, William Caxton established the first printing press in England 73 which modified the composition of the guild to consist mainly of printers and booksellers. 74 With the advent of the printing press, printed
Benefits of Piracy”, 13 April 2010, http://torrentfreak.com/u-s-government-recognizes-benefits-of-piracy-100413/
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books were cheaper than hand copied ones and unfortunately it also meant that pirating another’s book would be comparatively easier. 75 When piracy was easy, it created a problem among the few printers whom each could free ride on the other’s investment and payment for manuscripts. 76 Two wardens were appointed by the Mayor of London to oversee the behavior and work of the craftsmen when the guild was established in 1403. 77 At some point between 1403 and 1557, it became an offence to print a book before showing it to the wardens for approval, registering it in a register, and paying a fee. 78
With the proliferation and spread of printed matters, the literate population and the reading public group expanded, with writings that were more critical of the crown and others scandalous to the church, becoming available. 79
In 1557, the Stationers’ Company, as the guild came to be known, was awarded a royal charter, after a previous unsuccessful attempt, 80 and were given the usual privileges of being in a chartered company including: the right forever to be a corporate body with perpetual succession, the power to take legal action and to make rules for their own governance, the right to meet together and to elect a Master and two Wardens, and the right to own property in the City or suburbs. 81 Additionally, the Stationers’ Charter had terms which were unique to it for instance the preamble of the charter declared that certain privileges were to be given to the ninety seven Stationers, in addition to the normal rights of a company. 82 In effect, the Stationers’ Company had an almost exclusive right to printing in the whole of England. 83 Under the royal charter, the wardens were playing two roles simultaneously: First, they had to ensure that when approving a book, that it was not seditious, heretical, obscene or blasphemous; and second they had to ensure that a book had not been registered earlier in another printer’s or bookseller’s name. 84 To do the latter, a register was kept, and registration would only be given to a
73 BBC, History of William Caxton, http://www.bbc.co.uk/history/historic_figures/caxton_william.shtml
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member of the Company. 85 Also, the wardens had an expanded power to search for illegal or pirated copies of books throughout the kingdom. 86
Up until this point, authors had no role in the early copyright system and had no right apart from the ownership of manuscripts, and were merely bound by contract not to assist or sell the same manuscript to another printer or bookseller. 87
In 1566, a decree was passed that ordered for any books which offended against the laws of the land or against the grant or injunction issued by Her Majesty, whether they were printed in England or abroad, were to be seized and brought to the Stationers’ Hall. 88 In 1586, a new decree was made with more explicit control and powers to the Stationers’ Company. 89 A printer’s punishment was the destruction of his press and type, disablement from ever printing again and six months imprisonment without bail, and for the booksellers and bookbinders it was three months imprisonment. 90
2.3.2 The 17 th Century In 1644, John Milton was accused in the English parliament of having been deceived by the ‘fraud of some old patentees and monopolizers in the trade of bookselling’, through the London Stationers’ Company. 91
In 1662, after the Courts of Star Chamber was abolished in 1641, the English Parliament enacted a Printing Licensing Act which required every licence to be printed verbatim at the beginning of each book – this act first lapsed in 1679, was reinstated, and ultimately lapsed in 1695. 92 The ending of this act was a significant event in the history of copyright as the Stationers’ Company no longer had the advantage of an enforcement power, meant for searching unlicensed and illegal books, to protect its copyrights. 93 The Glorious Revolution of 1688 proved that “the Tudor methods of government under the shadow of which the Company had begun to play a real part of the world, were no longer workable”. 94 Subsequently, ten unsuccessful attempts were made by the Stationers’ Company between 1695 and 1707 at legislation to restore the Licensing Act or for registration of copyright. 95
85 Khong (2006), note 72, p39; See also Paul Edward Geller, ‘Copyright History and the Future: What’s Culture Got to Do With It?’ (2000), Journal of the Copyright Society of the USA, Vol. 47, p. 209 86 Khong (2006), note 72, pp39-40; See also Jessica M Silbey, ‘The Mythical Beginnings of Intellectual Property’ 87 Khong (2006), note 72, p40; See also Silbey, note 86 88 Khong (2006), note 72, p40; See also Edward Samuels, ‘The Illustrated Story of Copyright’, 2000 89 Khong (2006), note 72, p41 90 Khong (2006), note 72, p41; See also Geller (2000), note 85 91 Deazley, Kretschmer and Bently, “Privilege and Property: Essays on the history of copyright”, 2010, http://www.openbookpublishers.com/product.php/26 92 Khong (2006), note 72, p41; See also Geller (2000), note 85 93 Khong (2006), note 72, p41; See also Geller (2000), note 85 94 Khong (2006), note 72, p41; See also Geller (2000), note 85 95 Khong (2006), note 72, p41
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In 1709, a group of major London booksellers and printers managed to petition for leave to bring in a bill “for securing to them the Property of Books, bought and obtained by them”. 96 However, the Act that the Stationers received for their efforts was not what they had in mind – many key features in the bill that was returned from the committees of the House of Commons and House of Lords which were drafted for the advantage of the Stationers had disappeared and were replaced by those favoured by the Houses to restrict the monopoly enjoyed by the printers and booksellers. 97 Subsequently, the bill became law and came into force on April 10, 1710. 98
The system was quite openly designed to serve the booksellers and the government, not authors. 99 New books were entered in the Company’s Register under a Company member’s name, not the author’s name, and by convention, the member who registered the entry held the “copyright”, the exclusive right to publish that book, over other members of the Company, and the Company’s Court of Assistant resolved infringement disputes. 100 This was not simply the latest manifestation of some pre-existing form of copyright – it’s not as though authors had formerly had copyrights, which were now to be taken away and given to the Stationers. 101 The Stationers’ right was a new right, though one based on a long tradition of granting monopolies to guilds as a means of control. 102 Before this moment, copyright – a privately held, generic right to prevent others from copying – did not exist. 103
2.3.3 The 18 th Century It has been stated that the regulation of the printing press in the North American colonies were a provincial and somewhat crude version of European precedents, and that in the revolutionary France of 1789, the subtle balance that the royal decrees had established between the interests of the author, the bookseller, and the public, was shattered by the termination of the privilege system. 104
From 1695 onward, there was no copyright and creativity soared. 105
When the US was founded, the monopolies on ideas concept was carried to the New World and debated intensely with Thomas Jefferson being a fierce opponent to it. 106 Subsequently, the US Constitution was
96 Khong (2006), note 72, p41; See also Lyman Ray Patterson, ‘Copyright in historical perspective’, 1968 97 Khong (2006), note 72, pp41-2; See also Patterson (1968), note 96 98 Khong (2006), note 72, p42 99 Karl Fogel, “The Surprising History of Copyright and The Promise of a Post-Copyright World”, QuestionCopyright.org, 9 October 2005, http://questioncopyright.org/promise
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the first mechanism to specify the reason for copyrights – to promote the progress of sciences and useful arts. 107
During a similar period, Germany had no copyright monopoly which several historians argue, led to the rapid proliferation of knowledge that enabled Germany to take the industrial lead over the United Kingdom as knowledge could be spread cheaply and efficiently. 108
The first Copyright Act was passed by the British Parliament in 1710, which was followed by the French passing theirs in 1793 and the Germans in 1794. 109
In the late 1800s, the publishers’ ever strengthening copyright monopoly had lopsided the creators’ opportunities of making any revenue from their works, with all the money going to publishers and distributors leaving creators to starve due to the copyright monopoly – a situation which arguably is similar to today’s world. 110
2.3.4 The 20 th century onwards The recent history of copyright law arguably has been shaped by an Anglo-American understanding of copyright as property. The integration of intellectual property rights into the global trade system with the WTO TRIPS Agreement, 111 the WIPO Internet Treaties 112 and subsequent implementations reveal a droit d’auteur concept of a personal individual right, in retreat even in the European Union. 113
It has been argued that in response to the crisis of a copyright regime that is perceived by many as a system of overprotection, shielding the investments of existing right owners, society needs to recover the perspective of a personal individual right ( droit d’auteur). 114 If the conception of copyright as a
107 Flakvinge (2011), note 106 108 Flakvinge (2011), note 106 109 Khong (2006), note 72, p35 110 Rick Flakvinge, Flakvinge on Infopolicy, “History of Copyright, Part 5: Moral Rights”, 14 February 2011, http://falkvinge.net/2011/02/14/history-of-copyright-part-5-moral-rights/
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personal right is accepted, many problems of overprotection within the copyright regime are cast in a new light. 115
What one can learn from the history of copyright is that copyright was originally created not with the author in mind, but for the protection of the distributors and publishers of that era. The authors and creators of the original works were in fact happy to know that people were interested in their work and made copies of it. The lesson to be learnt from this is that as more rules are made and as society develops and progresses especially in the online arena, the intention and reasons for the introduction of copyright several hundred years ago should never be forgotten.
2.3.5 EU Copyright Law and US Copyright Law At present, the European Union Copyright Directive (‘EUCD’) 116 , which is a legislative act of the EU, states that “a harmonized legal framework on copyright and related rights, through increased legal certainty and while providing for a high level of protection of intellectual property, will foster substantial investment in creativity and innovation, including network infrastructure, and lead in turn to growth and increased competitiveness of European industry, both in the area of content provision and information technology and more generally across a wide range of industrial and cultural sectors. This will safeguard employment and encourage new job creation”. 117 It further states that “any harmonization of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation” 118 and that “their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large” 119 . It highlights the importance for authors and performers to be able to continue their creative and artistic work, and receive an appropriate reward for the use of their work, as must producers in order to be able to finance the work, by exercising copyright. 120
The directive subsequently states that, “a rigorous, effective system for the protection of copyright and related rights is one of the main ways of ensuring that European cultural creativity and production receive the necessary resources and of safeguarding the independence and dignity of artistic creators and performers”. 121
In the US, the power to enact copyright law is granted in Article 1, Section 8, Clause 8 of the US Constitution which states:
115 Peifer (2010), note 113, p357 116 European Union Copyright Directive 2001/29/EC 117 European Union Copyright Directive 2001/29/EC, Paragraph 4, http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML
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The Congress shall have power to promote the progress of science and useful arts, by securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries. 122
These are the laws currently in place with respect to copyright in the two regions. Other parts of the world in some way or another follow either of these approaches.
The concept of intellectual property is determined by legislators who represent specific political, social, economic and cultural interests. 123 It is developed and interpreted by professors of law, judges and lawyers, who reduce the complexity of bundles of social, cultural and economic functions and roles with the aid of interpretations and procedures peculiar to their profession. 124 Subsequently, there is often a difference between the prevailing legal conception of the “author” and the “intellectual work” on the one hand and cultural, social and commercial notions of the author on the other. 125
2.4 Measures to combat copyright infringement Senator Orrin Hatch, the chairman of the US Senate Judiciary Committee, once remarked that “he favoured developing new technology to remotely destroy the computers of people who illegally download music from the internet” because he reasoned that damaging someone’s computer “may be the only way you can teach somebody about copyrights”. 126 Approximately 8 years have passed since that remark which was made around 2003 and one may question whether there has been progress.
By the end of 2003 the actions of the industry heavyweights caused one scholar to write that the war on copyright is expanding and that it is no longer a complicated issue that only copyright lawyers, legal scholars, technology developers and copyright holders are interested in – it is one of public significance, affecting every one of us in our daily lives. 127 In addition to this, if the entertainment industry does not pay attention to the public and if it continues to use ill-advised battle strategies, it has been argued that the industry might eventually lose the war. 128
This section is about measures to combat copyright infringement – what has been implemented so far and what is being considered for implementation, and the success or effectiveness of the measures. The scope is potentially global given the nature of the internet but for the purpose of this thesis, the focus shall be on the US and EU.
122 Constitution of the US, http://www.archives.gov/exhibits/charters/constitution_transcript.html
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2.4.1 The 4 Modalities – Law, Technology, Social Norms and Market For the purpose of streamlining and simplifying the discussion in relation to copyright combating measures, the work of Lawrence Lessig 129 is used as the basis for classification.
According to Lessig, behavior in the online world is regulated by four constraints. These constraints are law, social norms, market and architecture. Lessig popularized the concept of regulation theory by applying it to behavior on the internet. Briefly, Lessig explains that the law regulates the internet by penalties imposed after the fact – for example, spamming is against the law. Social norms regulate online activity through the understandings and expectations of everyone within the online community – for example, being polite and decent through communication by email. The market regulates the online world through price by setting opportunities and through the range of opportunities it regulates – for example how much can one earn online by providing his or services. And finally, architecture, or code as is the online equivalent, is the constraint of the internet as one finds it – encryption prevents digital duplication of a document. Therefore, to understand a regulation, one must understand the four constraints operating together and only looking at any one of these constrains alone will not provide full understanding.
Accepting Lessig’s model as accurate for the purpose of this thesis, the measures for copyright infringement have been categorized accordingly and presented in the following table.
Table of Copyright Measures 130
DESCRIPTION / PURPOSE LAW ALREADY IMPLEMENTED Notice and Takedown (DMCA) As per litigation enacted in 1998 aimed at dealing with the digital and online environment Litigation Massive litigation by the recording industry and awards of exemplary and punitive damages for the purpose of deterring future infringement NOT YET IMPLEMENTED Graduated Response and Three Voluntary (Private ordering) and s tatute based, Different variations e.g. three strikes approach (with internet strikes, perhaps 4 strikes? Or 5 strikes? disconnection as ultimate penalty) Alternative Dispute Resolution Whereby a copyright owner seeking to enforce a copyright against a P2P infringer (ADR) System modeled on could face an administrative proceeding before an administrative law judge, ICANN’s UDRP instead of civil litigation TECHNOLOGY
129 Refer to Lawrence Lessig, ‘The Laws of Cyberspace’, 1998, http://www.lessig.org/content/articles/works/laws_cyberspace.pdf
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Restrictive licensing agreements The access to content is controlled – for example when entering a website or downloading software, users are subjected to licensing agreements. This is one form of Digital Rights Management (DRM) Blocking and protection Encryption, Fingerprint systems, Embedding of a tag. This is another form of DRM technology SOCIAL NORMS Education To enable users, both young and old, t o understand implications of their online actions Advertising campaigns Also to enable users to learn about and understand the implications of their online actions MARKET New Business Models Some examples are Apple’s iTunes store and online advertis ements on sites to generate revenue
As a result of deliberations, discussions, lobbying and educating, legislation and rules have been implemented in the online world in an attempt to bring order and control over the activities. Examples of legislation are the DMCA,131 the currently being considered COICA,132 the European Copyright directive, and the recently introduced but not yet implemented ACTA.133 From these, the specific measures for combating online copyright infringement that have been created include litigation, the Notice and Takedown, the Notice and Notice,134 the Graduated Response (including the three strikes approach), and the Alternative Dispute Resolution system.
131 The Digital Millenium Copyright Act, US Copyright office summary, 1998, http://www.copyright.gov/legislation/dmca.pdf
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As a preliminary observation, the categories that seem to have the most potential for improvement are the ‘Market’ and ‘Social Norms’ categories. The ‘Law’ category has been at the forefront in terms of amount of work done so far but the results have not been that effective as has been discussed above. The ‘Technology’ sector could do with more improvements and user friendly features.
2.4.2 [LAW] Notice and Takedown The Notice and Takedown is a measure for combating copyright infringement as it involves providing notices to ISPs stating that potentially infringing work has been posted to the ISPs’ facilities and the ISPs must ‘take down’ the work.135 As a result, details can be possibly obtained from the ISPs’ who possess vital information regarding their users’ online activities.
The notice and takedown procedure has been effective to some extent, for example in the recent case of Viacom against Youtube where Viacom’s power to eliminate 100,000 instances of alleged infringement overnight with a single notice was demonstrated, and is a testament to the DMCA’s success in its goal of making online enforcement manageable without creating growth-inhibiting burdens for online services like YouTube, whose business models are founded on content sharing. 136
2.4.3 [LAW] Litigation 137 Litigation is a measure for combating copyright infringement as it enables rights holders to bring actions against potential infringers in court and to stop them from conducting similar acts in the future. It is not only available to enforce one’s rights in a court of law, but has also been used as a scaring tactic. A measure that has been in place at least since 2003 is litigation and a lot of it. 138 The entertainment industry has been either actively taking or threatening to take legal action against those who allegedly infringe upon its rights under existing copyright law. 139 A difficult and expensive exercise in going against individual pirates, the industry nevertheless has enjoyed phenomenal success in lawsuits against companies operating filesharing networks, pushing most of them into shutdown, sale or bankruptcy. 140 Examples of such litigation were in the cases of Thomas-Rasset, 141 Tenise Barker 142 and Tenenbaum. 143 These cases shall be discussed in Chapter 4 of the thesis. While litigation has been used as a scaring tactic, litigation is also available to enforce one’s right in a court of law.
135 Baird (2009), note 134, p23 136 Bridy (2011), note 4, p26 137 For a summary of this measure and this section, see Peter Yu, ‘The Escalating Copyright Wars’, pp913 - 918 138 Annemarie Bridy, ‘Graduated Response and the Turn to Private Ordering in Online Copyright Enforcement’, 2010, ssrn 139 Yu (2004), note 5, p913 140 Yu (2004), note 5, p913 141 Baird (2009), note 134, p23; See also CNET, “Jammie-Thomas hit with $1.5 million verdict”, 3 November 2010, http://news.cnet.com/8301-1023_3-20021735-93.html
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2.4.4 [LAW] Graduated Response and Three strikes approach This brings us to the general framework for what is described as ‘graduated response’ which is as follows: the first notice issued by a rights holder and sent by the ISP to the subscriber warns the subscriber that future infringement could result in the ISP terminating (or suspending or throttling, depending on the statutory requirements) internet service to the subscriber. 144 A similar warning that if there is one more complaint of an allegation of infringement, service will be terminated comes with the second notice. On the third notice, the subscriber’s internet service is terminated resulting in disconnection. This is the ‘three strikes and you are out’, or ‘three strikes’ approach to describe the proposed law.
There are variations between jurisdictions on the details of the laws such as who is responsible to inform all parties involved including the subscriber, the ISP, a government administrative agency or court, if there is any appeal process for the ISP’s subscriber, if there is suspension – how long the service is suspended for, is termination possible, and whether the subscriber will be prevented from seeking internet service from another provider.
At least one country, namely France, has enacted a provision giving complying ISPs a safe harbor from secondary liability for the copyright infringement or liability under contract law with regard to the user. 145
Many national governments are currently debating and considering some form of a graduated response or ‘three strikes’ procedure.146
The Recording Industry Association of America (‘RIAA’) at the end of 2008 concluded its five year campaign of litigation against individual P2P file sharers, and announced that it would be shifting its online copyright enforcement activity to the graduated response model. 147 The way that it has been presented by the RIAA and other industry groups, the enforcement paradigm embodied in graduated response avoids litigation and statutory mandates in favor of voluntary cooperation between rights owners and internet service providers – parties that have long been at loggerheads with each other in the war on piracy. 148 The Business Software Alliance (‘BSA’), for instance, has publicly advocated
144 Baird (2009), note 134, p25 145 Baird (2009), note 134, p25 146 The three strikes laws have been enacted in France, New Zealand, South Korea and Taiwan. Singapore and other countries are pursuing voluntary measures, some of which do not involve terminating internet access as the ultimate penalty. Graduated response is also being considered in the context of the highly controversial Anti- Counterfeiting Trade Agreement negotiations. Baird (2009), note 134, pp25-6 147 Bridy (2010), note 4, p81 148 Bridy (2010), note 4, p81
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bypassing Congress to pursue a “voluntary industry led approach”, a move which it predicts will prove more effective than further governmental intervention along the lines of the DMCA. 149
A similar view was expressed in testimony by a representative of the RIAA before the US Congress concerning the proposed Internet Freedom and Preservation Act of 2008. 150 And in a more recent event, the Motion Picture Association of America (MPAA) asked the government, in comments filed with the Federal Communications Commission (FCC) in relation with the notice of proposed rule-making concerning the preservation of the open internet (the Open Internet NPRM 151 ) to step aside and “not interpose any legal or regulatory obstacles” (e.g. in the form of net neutrality mandates) that would prevent rights owners and broadband providers from working together to implement graduated response. 152 This turn to private ordering and technology based solutions represents a departure from the dominant strategies of lobbying and litigation that corporate rights owners have pursued domestically since the early days of the digital revolution. 153 None of the measures of lobbying and litigation made much of a dent in the extensive volume of illegally traded files. 154 For example, according to the International Federation of the Phonographic Industry (‘IFPI’) which compiled studies from sixteen countries over a four year period, an estimated forty billion music files were illegally shared in 2008, which represents ninety five percent of all downloaded music. 155 Therefore the growing belief among rights owners is that the time is right for a strategic shift away from public law and litigation, toward partnerships with ISPs, and an enforcement regime that operates on internet users through a combination of technology and private law mechanisms, such as standardized terms of service and acceptable use policies. 156
The most extensively publicized form of graduated response is the “three strikes and you’re out” model, whereby internet access is suspended or terminated by a user’s ISP following the user’s receipt of three successive notices of copyright infringement. 157 The division of labour between rights owners and ISPs with regard to monitoring and notification of infringement differs from one variation of graduated response to the next. 158 The most aggressive, severe and controversial regime is one in which ISPs implement filtering technologies within their networks and fully automate the process of notification,
149 Bridy (2010), note 4, p81 ; See also BSA Position on Appropriate Measures to Deter Online Piracy of Content, BUSINESS SOFTWARE ALLIANCE, http://www.bsa.org/country/Public%20Policy/online-content-piracy.aspx 150 Bridy (2010), note 4, p82 151 Get informed about the Open Internet, http://www.openinternet.gov/get-informed.html
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suspension and termination of internet access. 159 For example, this comprehensive and fully automated form of graduated response is offered by Audible Magic , an online media expert organization, offers an appliance called CopySense that is widely marketed to IT departments at colleges and universities. 160 Some universities and colleges have already adopted this model of graduated response in an attempt to comply with the Higher Education Opportunity Act of 2008 (HEOA) which specifically requires them to develop copyright enforcement plans that include technology based deterrents to online infringement. 161
Regardless of the exact division of labour, in all forms of graduated response the burden of enforcing digital copyrights is shared between rights owners and ISPs, and repeated notices of infringement – from whichever source they originate – amounts to at least a temporary suspension of internet access. 162
The voluntary graduated response, as publicly controversial as it is, is squarely on the table as corporate rights owners and broadband providers discuss their individual roles in the future of online copyright enforcement. 163 It reflects the shift taking place between the two groups within the context of copyright law’s special rules of liability for intermediaries that act as “mere conduits” for their customers’ communications. 164 These rules, which have historically protected ISPs from liability for the infringing transmissions of their customers, are becoming less clearly applicable as internet broadband providers use “intelligent” routers within their networks, giving them the ability to inspect, sort, and filer the traffic they carry. 165 As broadband business models evolve away from the traditional model of passive carriage, ISPs risk sacrificing the special protections that have developed over time to shield neutral intermediaries from liability for copyright infringement. 166 This potential exposure gives ISPs a compelling incentive to explore private partnerships with rights owners that would once have been politically unthinkable. 167
The graduated response system provides an alternative enforcement mechanism through which ISPs can take a wide variety of actions after giving users several warnings about their potentially illegal online filesharing activities. 168 The actions include suspension and termination of internet service, capping of bandwith, and blocking of sites, portals, and protocols, among others. 169
159 Bridy (2010), note 4, p84 160 Bridy (2010), note 4, p84; See also http://audiblemagic.com/solutions-colleges.php
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It was during the Obama administration in the US when the push for the graduated response system came where it was actively pushing for greater expansion of internet service in underserved and unserved areas, especially those in rural America. 170 For instance, the recently adopted government stimulus package has earmarked more than $7 billion for broadband deployment and the demand for the development of a graduated response system also happened during a fierce debate involving the country’s future telecommunications policy, implicating such issues as the principle of network neutrality and the role of deep packet inspection in network management and intellectual property protection. 171
In March 2010, the Federal Communications Commission (FCC) announced its intent to undertake a major overhaul of the nation’s broadband policy. 172 The purpose of the overhaul would be to dramatically increase internet speeds, including those of online uploads and downloads, while revolutionizing the way Americans use the medium. 173
This ongoing debate involving the graduated response system parallels similar debates taking place across the globe. 174 For example, in May 2009, France adopted the Loi favorisant la diffusion et la protection de la création sur internet , which established a new administrative body called HADOPI to impose suspension or termination of internet service, among other measures. 175 Even though the French Constitutional Council struck down part of the law as unconstitutional, the legislature quickly adopted a replacement law that introduced an additional judicial process, and the new law has now entered into effect. 176
Similar policies and laws have been considered, adopted or rejected by Australia, Germany, Hong Kong, the Netherlands, New Zealand, South Korea, Sweden, Taiwan and the United Kingdom. 177 So far, there have been rejections of the graduated response proposals by Germany, Hong Kong, Spain, Sweden, as well as the European Parliament. 178
170 Yu (2010), note 133, p1375 171 Yu (2010), note 133, pp1375-6 172 Yu (2010), note 133, p1376 ; See also John Poirier & Sinead Carew, U.S. to Roll Out Major Broadband Policy, REUTERS, Mar.14, 2010, http://www.reuters.com/article/2010/03/14/us-usa-broadband- idUSTRE62D0ZX20100314
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“Copyright owners should ‘not use the copyright laws to defend old business models’ but should rather offer legitimate services” – this was what Sweden said when it rejected the system in March 2008. 179 Similarly, the Hong Kong government noted that the present is “not an opportune time to consider introducing such a system in Hong Kong, especially when its implications are yet to be fully tested in overseas jurisdictions”, in its digital copyright reform proposal recently submitted t o the Legislative Council. 180
2.4.5 [LAW] ADR System modeled on ICANN’s UDRP It was suggested in the literature that it may be possible to design a “quick, cheap dispute resolution system that enables copyright owners to get some limited relief against abusers of p2p systems and to deter others from such abuse.” 181 The incentive for rights holders would be reduced enforcement costs, and consumers would benefit from limiting the procedure to clear cases of high volume uploaders and from a clear set of affirmative defenses for “arguable fair uses” such as space shifting lawfully acquired files from CDs to other media or making out-of-print works available to the public. 182 This proposal was largely initiated from the success of the Uniform Domain Name Dispute Resolution Policy (‘UDRP’) as overlooked by the organization responsible for the internet naming system known as ICANN. 183 This does seem to have potential as a just and economically viable solution that may be implemented in the near future.
2.4.6 [TECHNOLOGY] DRM 184 The next strategy the entertainment industry uses concerns the deployment of copy-protection technology such as encryption, 185 digital watermarking, 186 and the use of trusted systems. 187 By using
179 Yu (2010), note 133, p1377 180 Yu (2010), note 133, p1377; Generally see also Annemarie Bridy, “ACTA and the Specter of Graduated Response”, 2010 181 Mark A Lemley & R. Anthony Reese, ‘Reducing digital copyright infringement without restricting innovation’, 56 STAN. L. REV. 1345, 1399 & n.219 (2004) 182 Peter Yu, ‘P2P and the Future of Private Copying’, 2005, p730 183 Yu (2005), note 182, p730; See also Internet Corporation for Assigned Names and Numbers (ICANN), ‘UDRP’, http://www.icann.org/en/udrp/udrp.htm
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such features and facilities, the industry is able to successfully prevent the general public from reproducing its products without authorization. 188 Additionally, restrictive licensing agreements are also used. The creation and use of these features collectively can be classified as Digital Rights Management (‘DRM’).
Despite having such technology, the entertainment industry remains vulnerable as once the technologies lose their protective function when they are decrypted (usually by hackers), the general public can take advantage of the hackers’ breakthrough and make copies without the copyright holder’s permission, and can also share illegal copies freely with others through websites, file-swapping software and peer-to-peer networks. 189
The industry must regularly upgrade its encryption technologies to prevent the public from taking advantage 190 but unfortunately such upgrading would attract more attention from hackers, who by nature are just too keen to crack the latest encryption technology available. 191 The repeated encryption and decryption will ultimately create a vicious cycle in which the entertainment industry and the hacker community engage in an “endless copy-protection arms race”. 192 The industry would have to invest limited resources in encryption technology and in preventing consumers from accessing copyrighted works, instead of using those same resources to developing artists and improving products, which would hurt artists, the industry and ultimately consumers. 193
There is strong opposition against DRM technology arguing that the technology restricts users’ access to movies, music, literature and software, indeed all forms of digital data, 194 and it is “simply a prison in which users can be put to deprive them of the rights that the law would otherwise allow them.” 195 The increased use of encryption technologies to protect copyright has triggered concerns among consumer advocates and civil libertarians. 196
A few more measures under this category include the Domain Name System (DNS) blocking, the Uniform Resource Locater (‘URL’) filtering, and the fingerprint system as presented in the table.
188 Yu (2004), note 5, p918 189 Yu (2004), note 5, pp918-19 190 Yu (2004), note 5, p919, 191 Dorothy E Denning, Hacker Ethics, ‘Why Hackers Break into Systems’ http://www.southernct.edu/organizations/rccs/oldsite/resources/research/security/denning02/hacker_ethics.htm l
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2.4.7 [SOCIAL NORMS] Education 197 and Advertising Campaigns
Another strategy the entertainment industry has been using very actively in recent years is educating the consuming public. 198 Thousands of letters have been sent by entertainment groups to colleges and corporations making them aware of the infringements, and at the same time celebrities such as Dixie Chicks and Missy Elliott have appeared on MTV 199 and BET 200 to relay artists’ concerns. 201 To the extent even Madonna annihilated her fans for downloading an illegal copy of her new single, American Life. 202 In another example, during the 2004 Annual GRAMMY Awards ceremony, the Recording Academy revealed a major public education campaign which included the new website whatsthedownload.com, print and radio public service announcements, grassroots initiatives and retail activities. 203 Advertising campaigns are also used for the purpose of making the public aware of the implications of their actions.
Another extreme instance of education since September 2003 has been through mass litigation. 204 The industry has filed at least two thousand lawsuits against individuals suspected of swapping music illegally through peer-2-peer networks. 205 Cary Sherman, president of the Recording Industry Association of America once declared that “lawsuits are a very potent form of education.” 206 Even though CD sales did increase since the filing of lawsuits and some studies have shown that illegal file sharing had declined, 207 it remains unclear as to whether the lawsuits have the proclaimed educational value as commentators had attributed the increase in record sales to other factors such as an improving economy, a better and wider selection of artists and albums, and an increasing tendency to deny downloading activities. 208
2.4.8 [MARKET] Business Models
197 For a summary of this strategy see Yu (2004), note 5, pp920-1 198 For instance, the “Byte Me” website was set up by the recording industry to stem the distribution of illegal copies of popular music in MP3 format: The Digital Dilemma: Intellectual Property in the Information Age (2000); See also Yu (2004), note 5, p921 199 Music Television channel 200 Black Entertainment Television 201 Entertainment Industry Widens War, USA TODAY, Feb. 13, 2003, at 9D; See also Yu (2004), note 5, p920 202 Lev Grossman, It’s All Free!, TIME, May 5, 2003, at 60 http://www.time.com/time/magazine/article/0,9171,1004761,00.html
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Moving on to the fourth constraint and category of regulation according to Lessig which is by the market, this section arrives at the discussion of business models. An example of the use of this business model has been through licensing by the entertainment industry. Examples include Apple Computer launching the iTunes Music Store 209 and the re-launched subscription based music service Napster 210
While both these services (iTunes and Napster) offer legal alternatives to KaZaA, Grokster, Morpheus, and other allegedly illegal file sharing networks, they also assist students and computer users to develop habits that the industry hopes will continue, an exciting opportunity from the industry’s standpoint. 211 Another possible type of business model is the use of advertising on websites to generate revenue.
2.4.9 US and EU – Comparisons and Conclusions This section commences with a comparison of the measures that have already been implemented in each of the regions. The results have been compiled in the table below:
MEASURES ALREADY IMPLEMENTED US EU LAW Notice and Takedown (DMCA and √ √ Copyright Directive) Litigation √ √
209 This store offered low priced music downloads from the five major record labels: Laurie J. Flynn, Apple Offers Music Downloads with Unique Pricing, N.Y. TIMES Apr. 29, 2003, http://www.nytimes.com/2003/04/29/business/technology-apple-offers-music-downloads-with-unique- pricing.html
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Graduated Response (three strikes X X (limited) approach) ADR System X X TECHNOLOGY Restrictive licensing agreements (DRM) √ √ Blocking and protection technology (DRM) √ √ SOCIAL NORMS Education √ √ (limited) Advertising c ampaigns √ √ (limited) MARKET Business models √ √
Even though there are similarities as can be seen in the table above, there are also some distinct differences between the US and EU systems.
Within the constraint of law, the US has the DMCA and the EU has the Copyright directive. US law is based on the common law system, whereas EU law is based on the civil law system. US copyright law allows for fair use as an exception, a concept that EU law does not have. The Notice and Takedown is set out in the DMCA for the US, but the European equivalent is set out in both the Copyright Directive as well as the E-Commerce Directive.
Under the category of technology, the measures that have been discussed are applicable in almost the same way for each region. This is due to the universal and uniform nature of the internet technology that knows no boundaries or territories, and instead mostly relies on series of numbers. However, when it comes to technologies that are not completely reliant on the internet, then differences do arise. Take a movie DVD for example which has five different regions across the globe within which to operate. If an individual purchases a DVD from the US, he or she will not be able to play it in the EU, and vice versa due to the technology within the DVD. This is a classic example of copyright protection using technology. This is also linked to the fourth category of the market discussed shortly.
The next category or constraint within which online behavior is determined, is through social norms. It is a fact that are cultural differences between Americans and Europeans ranging from the way they spend their time with family to the way they eat.212 The thinking is different, and therefore one could argue that as a result, their online behavior would be different as well. For conclusive results, properly conducted experiments need to be done but for the present purpose, it is sufficient to say that there is a difference in culture. Even the education is different. However one could argue that education could be used as a tool to modify social norms. Another thing to note is looking at the history of copyright, it originated in Europe and then eventually found its way to the US. Everyone came from the same region but after moving, new ways developed and a new culture emerged.
212 ‘Top 10 differences between Europe and America’, http://listverse.com/2007/11/25/top-10-differences- between-europe-and-america/
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The final constraint on online behavior is through the market by way of for example business models. It is arguable that business models in both the US and EU would be similar as at the end of the day, the financial bottom line is what that matters, and with the internet everything is online and similar regardless of where one is living. However, there may be some cultural aspects as well as some technological aspects that might affect it. For example, being able to buy the Apple iPad in the US earlier than any other region could cause some tension in the market.
Copyright combating measures in the past (and present) and the future
PAST / PRESENT FUTURE LAW DMCA Notice and Takedown Gradu ated Response (three strikes Copyright Directive approach) Litigation ADR System
TECHNOLOGY Copy protection technology DNS Blocking (TPMs 213 and Encryption 215 More advanced encryption? DRMs 214 ) Digital watermarking More advanced fingerprint systems? DNS Blocking 216 None of the above? URL Filtering 217 Fingerprint system 218
213 Technological protection measures 214 Digital rights management 215 An encrypted CD may not function in the same way as a conventional CD whereby previously available functions including those to which consumers may have a legal right under the ‘fair use’ privilege in copyright law may no longer exist for example consumers may no longer be able to make archival backups or analog compilations of copyrighted songs for personal use. Additionally, an encrypted CD may not be operational on car stereos, computers, and old CD players, resulting in consumers being forced to buy new devices they do not otherwise need or cannot afford. The recording industry has subsequently faced highly negative responses including a lawsuit by two California consumers when Sony released Celine Dion’s album in encrypted format. (See also Jon Healey & Jeff Leeds, Record Labels Grapple with CD Protection, L.A. TIMES, Nov. 29, 2002, ‘Record labels grapple with CD protection’, http://articles.latimes.com/2002/nov/29/business/fi-secure29/2
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SOCIAL NORMS Education More education? Mass litigation More advertising campaigns? Advertising campaigns
MARKET Business model – Licensing Different business models?
In terms of the future and to which area should the solution for dealing with online copyright infringement come from, there is no single definite answer. Many options have been tried and implemented, with varying results. With for example copyright protection, consumers didn’t like it because they felt they had a legal right to the copy that they purchased. The key to success in the technological aspect is to use techniques and devices that are user friendly. Existing technologies such as fingerprinting are not user friendly – YouTube is such an example of that. There is therefore scope for improvement in this category.
With regards to the market, in the 90s there really was no market as the consumers did not have the power to cause changes in the supply. It was the market that decided what consumers did. However, it’s a different story these days as consumers drive demand. Perhaps the solution lies within this category.
As for social norms, there is not enough evidence for a comparison as in the past one could not copy as easily, quickly or cheaply as can be done today. The only desire in those times was that of wanting to share information and material with others. Another possible method is through education – by educating the public on what is right and wrong and why it is so could help in fighting online copyright infringement. Also more effective advertising campaigns may be created for better results.
Perhaps the answer lies in regulation and the law. That may be the case, but one thing is for sure. If an existing law results in a penalty which causes a human right to be breached, then it is not appropriate regardless of how effective the measure is. The discussion on fundamental human rights shall be undertaken in the next chapter.
Given the number of measures within each category, perhaps technology might be the most reliable way of handling online infringement as it contains the most number of possible measures to use.
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3. ACCESS TO INTERNET
3.1 Introduction As the most severe consequence of the three strikes approach is internet disconnection, this chapter shall now look at the issue of the internet in general, and of internet access. It is necessary to be aware of the substantial impact that digitization has had on the various sectors of the entertainment industry, with the practice of file sharing and the use of peer to peer networks making it increasingly difficult for the entertainment industry to maintain control over their works, with the risk of eroding their commercial foundations. 219 The purpose of this chapter is to prove that internet access is an important and vital aspect of daily life in this day and age.
First an introduction to the internet and its origins shall be provided. The chapter then moves on to discuss the internet as a human right, and whether it has already become a human right. It then concludes with assessing the importance of internet in today’s society.
3.2 History from then to today: The internet journey The internet has revolutionized the computer and communications world like no other. 220 The creation of the telegraph, telephone, radio, and computer set the stage for this unprecedented integration of functions and capabilities. 221 A global broadcasting facility, a mechanism for information distribution, and a medium for collaboration and interaction between individuals and their computers beyond borders and geographic locations, all in one framework. 222
It arose as a result of visionary thinking by people in the early 1960s who saw great potential value in allowing computers to share information on research and development in scientific and military fields. 223 J.C.R. Licklider of the well known Massachusetts Institute of Technology (‘MIT’) first proposed a global network of computers in 1962, and in the same year, moved to the Defense Advanced Research Projects Agency (DARPA) to work on developing it. 224
What began as a US Department of Defense network to link scientists and university professors all around the world, a network of networks, is now a global data communications system that links
219 Huygen et al (2011), note 17, p4 220 Internet Society, http://www.isoc.org/internet/history/brief.shtml
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millions of private, public, academic and business networks via an international telecommunications backbone that consists of various electronic and optical networking technologies. 225
Decentralized by design, no one owns the internet, and it has no central governing authority. 226 The words ‘internet’ and ‘world wide web’ are often used interchangeably, but the fact is they are not one and the same. 227 For a better understanding, one can imagine the World Wide Web as the platform which allows one to navigate the internet with the use of a browser such as Internet Explorer or Mozilla Firefox. 228
Today, the internet is a public, cooperative and self sustaining facility accessible to hundreds of millions of people all around the world. 229 Electronic mail (e-mail) has practically replaced the Postal service for short written transactions, live conversations can be carried out with other computer users, internet telephony hardware and software allows real time voice conversations, and web browsing allows for access to millions of pages of information for research and knowledge gathering, among other things. 230
It has been stated that the public internet was not initially designed to handle massive quantities of data flowing through millions of networks. 231 In response to this, experimental national research networks (NRN’s) such as Internet 2 and NGI (Next Generation Internet), are developing high speed next generation networks. 232
225 InvestInTech.com, ‘A Brief Guide to the History of the Internet’, http://www.investintech.com/content/historyinternet/
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Internet2 operates the Internet2 Network, a next generation hybrid optical and packet network that furnishes a 100Gbps 233 network backbone, providing the US research and education community with a national dynamic, robust and cost effective network that satisfies their bandwith intensive requirements. 234 Although it does not replace the internet, this private network does provide an environment in which cutting edge technologies can be developed that may eventually migrate to the public internet. 235
The development and speed of technology, 236 online communications and of life in general has become much higher and more intense in current times than they were for our parents and grandparents. The young adults of this generation, as well as of upcoming generations referred to as ‘digital natives’, 237 are experiencing life in a completely different way as a result of the advances of the internet. One can only wonder how the internet will be twenty years from now.
3.3 Internet as a right Allowing for the uploading, downloading and exchange of information, the internet is a powerful communication medium. Using the well established principles of freedom of expression and freedom of access to information, this section attempts to link internet access to those principles and propose that internet access should be a human right.
3.3.1 Freedom of Expression In 2010, nearly 2 billion people worldwide were using the internet – representing over one quarter of the global population. 238 Such a large and constantly growing statistic calls for certain rights to be put in place, which is the issue in this section of the paper.
The Freedom of Expression is a well recognized and entrenched fundamental human right, and its leading instrument is the 1948 Universal Declaration of Human Rights (‘UDHR’). 239 Article 19 of the UDHR provides that:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” 240
233 Current state of the art infrastructure is 10Gbps – Internet Alliance, ‘Facing the challenges of developing 100Gbps Platforms’, June 2010, http://www.ethernetalliance.org/files/document_files/Roadto100G_ChallengesWhitePaper.pdf 234 InvestInTech.com, note 225 235 InvestInTech.com, note 225 236 ‘The Speed of Technology’, http://intentionaldesign.ca/2009/03/13/the-speed-of-technology/
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Freedom of expression is one of our most fundamental rights. 241
Additionally, the European Convention on Human Rights (‘ECHR’), an international treaty which protects human rights and fundamental freedoms in Europe, contains a similar provision to the UDHR in relation to freedom of expression as found in Article 10. 242 Paragraph 2 of article 10 states that:
“the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
It is therefore universally recognized – including in both the US and EU, that in summary, the Freedom of Expression includes:
• the right to express, or disseminate, information and ideas; • the right to seek information and ideas; • the right to receive information and ideas; and • the right to impart information and ideas. 243
In 2007, the Commissioner for Information Society and Media in the European Commission said, “Freedom of expression is one of the most fundamental rights of our European Democracies” ... but that “without freedom of information, freedom of expression often remains meaningless”. 244
240 The Universal Declaration of Human Rights, http://www.un.org/en/documents/udhr/index.shtml#a19
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3.3.2 Freedom of Information This brings us to the topic of Freedom of Information, referring to the protection of the right to freedom of expression with regards to the internet and information technology, and also relates to censorship in an information technology context. 245 Freedom of Information is an extension of freedom of speech, which is a fundamental human right recognized in international law, and in today’s terms is understood more generally as freedom of expression in any medium (oral, visual, writing or print). 246
Freedom of Speech, from the US perspective, focuses on the right enshrined in the First Amendment to the US Constitution. 247 The right to Freedom of Speech is also outlined in Article 19 of the UDHR and Article 19 of the International Covenant on Civil and Political Rights (‘ICCPR). 248
A few of the early events that signaled the power of the internet to promote freedom of speech include the Tiananmen Square rebellion in China in 1990, 249 the Russian Coup in 1991, 250 the Kuwait invasion in 1991, 251 the Yugoslavian government in 1996, 252 and more recently in the middle east (discussed in the next section).
These instances of real life world events highlight the sheer power of the internet infrastructure that has the potential to link possibly every single person in the world to each other for essential information exchanges, and news.
3.3.3 Freedom to access information, Human rights declaration – does it translate to a right to internet access? “Here’s a prediction: in five years, a UN convention will enshrine network access as a human right (preemptive strike against naysayers: ‘Human rights’ aren’t only water, food and shelter,
245 Mazhar Siraj, “Exclusion of Private Sector from Freedom of Information Laws: Implications from a Human Rights Perspective”, 2010 (link from Wikipedia); See also ‘Freedom of Information’, Wikipedia, http://en.wikipedia.org/wiki/Freedom_of_information
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they include such ‘nonessentials’ as free speech, education and privacy). In ten years, we won’t understand how anyone thought it wasn’t a human right. And even then, there will be destitute former music execs, living rough on the streets, using their laptops to argue that no, it’s not a human right: you should be deprived of your internet access if you’re accused of copyright infringement, because the internet is just a machine for making copies of trivial, copyrighted entertainment products” 253
The above statement was written by a well known Canadian blogger 254 , journalist and activist in favour of liberalising copyright laws and a proponent of the Creative Commons organization. And the way things are progressing, the writer would not be in the least surprised that the above statements manifest into reality and turn out to be true.
The internet can be used to provide essential information about storm warnings and crop prices for farmers, or medical services, or legal land records for farmers in developing countries. 255 “You don’t need a TV. You don’t need a radio. You don’t even need a newspaper. But you need the internet ...” said an aspiring poet who has been homeless for nearly two years. 256
Such uses of the internet, and such statements made by the not so privileged and those living in developing countries, demonstrates a level of reliance so high and so necessary to equate such a facility to being essential and vital in the day to day living of life and survival.
3.3.4 Is it a right? Recent events that occurred earlier this year in Egypt and other parts of the middle east prompted debate on whether internet access should be an entrenched right in today’s world. As one writer wrote, most people, including most Egyptians, took internet access for granted as a constant and the suddenness of Egypt’s internet shutdown raises the question of whether internet access is a human right. 257 According to a BBC World Service survey in December 2009 in Egypt’s biggest cities, the vast majority of urban Egyptians, namely 78 percent, feel that internet access is a human right. 258 On top of that, 55 percent said they “could not cope without it”. 259 Neil Hicks, international policy adviser for Human Rights First, told msnbc.com “It’s freedom of expression that is a long standing core right. Restriction from the internet is a violation of the right of free speech.” 260
253 Cory Doctorow, “Homeless people and the internet”, http://boingboing.net/2009/05/24-week/
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The internet has increasingly become the core medium for speech , in particular speaking out against one’s government. Social networking through the internet have allowed activists to get around those traditional forms of censorships, with Tunisia and Egypt being good examples of such facilities in recent times. 261 “The communication powers that these technologies permit are greater than the danger” continued Hicks. 262
According to the BBC World Service Survey, 79 percent of the 27,000 respondents across 26 countries worldwide are of the belief that access to the internet is a fundamental right, including most Americans. 263 However, when the same question was posed on the tech blog Gizmodo, the responses were far from unilateral with many commentators responding that internet access cannot possibly be a right. 264 As one commentator stated, “I can’t classify media access as a right to every human. Clean water, shelter, and adequate food to prevent starvation should be rights to every person; sadly they are not, in any country. There are far too many steps to accomplish first before internet access can be considered a human right.” 265 Another commentator wrote, “It’s no more a right than a computer, electricity, a home, and a job to pay for those things.” 266 On the other hand, “If we can’t communicate, we can’t organize, and if we can’t organize, then we are reduced to the power of a single individual. Without the ability to communicate we are nothing” wrote yet another commentator. 267 But the most cogent argument in support was that “there are certain technological advances that are such leaps forward in human evolution that they do, in fact, become human rights. Vaccines, for example. Potable water. I believe the internet has become one as well.” 268
Even if access to internet may not be a human right at the moment, the way things are progressing, one may be fairly confident that at some point in the future, it shall. This statement is derived from observing the comments made and words spoken by those in power for example:
• In a very recent conference on the topic of ‘Internet Freedom’, Thorbjørn Jagland, Secretary General of the Council of Europe emphasized the importance of having internet access in today’s world. 269 • In a draft of ‘Internet Governance Principles’ prepared as a result of the very recent Council of Europe conference on Internet Freedom 270 , the protection of human rights and fundamental freedoms is highlighted. It also states in paragraph 4 that “the internet can significantly enhance
261 Ibid 262 Ibid 263 Ibid 264 Ibid 265 Ibid 266 Ibid 267 Ibid 268 Ibid 269 Video interview with Secretary, Council of Europe Conference, ‘Internet Freedom – From principles to Global Treaty law?’,
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the exercise of most human rights and fundamental freedoms, and, in particular, the right to freedom of expression”. 271 Further, “people increasingly rely on the internet for their everyday activities and to ensure their rights as citizens. They have a legitimate expectation that internet services will be accessible and affordable, secure, reliable and ongoing. The internet is, similarly, a critical resource for numerous sectors of the economy and public administrations”. 272 • On his first Asian trip as President of the US, Barack Obama cited freedom of expression, along with religion, as a universal human right saying that “... freedoms of expression, and worship, of access to information and political participation – we believe they are universal rights. They should be available to all people, including ethnic and religious minorities, whether they are in the United States, China or any nation.” 273 • In 2010, US Secretary of State, Hillary Rodham Clinton evoked the First Amendment to the US Constitution, and Franklin Roosevelt’s ‘Four Freedoms’ speech of 1941, to discuss freedom of expression on the internet and extend this to what she called the freedom to connect, defined as the “idea that governments should not prevent people from connecting to the internet, to websites, or to each other.” 274 • “People lack many things: jobs, shelter, food, health care and drinkable water. Today, being cut off from basic telecommunications services is a hardship almost as acute as these other deprivations, and may indeed reduce the chances of finding remedies to them.” 275 This was stated by Kofi Anan, former Secretary General of the United Nations. • “The capacity of the internet – yet to be fully imagined – to eliminate forever the knowledge gap between rich and poor countries may be the single most important determinant of what our world will look like in fifty years. Whether it be linking rural villages in India with one another, health clinics in Kazakhstan to hospitals in Paris, or farmers in Ukraine to commodity markets in Chicago, we have the power to accelerate development by generations.” 276 This was stated by James Wolfensohn, former president of The World Bank Group.
271 Council of Europe Conference, ‘Internet Freedom – From principles to Global Treaty law?’, para 4, 2011, http://www.coe.int/t/dghl/standardsetting/media-dataprotection/conf-internet- freedom/Internet%20Governance%20Principles.pdf
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There are countries that have already institutionalized access to internet as a human right – Finland is an example of this. 277 There may be a possibility that internet access could be a point of discrimination for those who are not part of nations that have such an act as a human right. However, the threat of that is not as great compared to the threat of not making internet access a fundamental human right.
In a very recent report by the United Nations Human Rights Council, it was emphasized that “there should be as little restriction as possible to the flow of information via the internet” 278 and that “the full guarantee of the right to freedom of expression must be the norm, and any limitation considered as an exception, and that this principle should never be reversed”.
It is the writer’s conclusion that internet access has already become a human right in the hearts and minds of people in today’s society.
3.4 Is right of Access to Internet important in society? The level of access and connectivity of especially the digital natives in today’s world is extremely high. People have completely different virtual personalities in the online world and some spend hours and hours on end being connected 279 . It has reached such a level that withdrawal symptoms are felt when there is disconnection from the internet for a limited period of time. 280
People of today use the internet for a tremendous number of things from job applications, finding work, banking, conducting ecommerce through online businesses, using cloud computing, 281 using VOIP 282 to completely replace landline telephones, connecting with other people, voting and campaigning, promoting good causes, finding out further information on practically anything, finding friends and life partners and spending spare time on.
277 CNN Tech, “First nation makes broadband access a legal right”, 1 July 2010, http://articles.cnn.com/2010-07- 01/tech/finland.broadband_1_broadband-access-internet-access-universal-service?_s=PM:TECH ,
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Therefore, it is imperative that internet access – and complete, unrestricted access at that, is elevated to the level of a fundamental human right. It is of utmost importance as this is the way of the present, and it is also the way of the future. 283
283 “Get informed about the open internet”, http://www.openinternet.gov/get-informed.html
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4. PROPORTIONALITY – AN APPROPRIATE MEASURE?
4.1 Introduction After commenting on the current measures in place regarding copyright infringement including the three strikes approach, and exploring the consequences of the most extreme penalty of internet termination, the discussion now moves to determining the appropriateness of the measure and to answering the main research question.
Under international standards as set by the United Nations Human Rights Committee, any limitations on freedom of expression must satisfy that the interference is provided in law and is clear and accessible, that the interference must pursue a legitimate aim as set out under Article 19(3) of the ICCPR and that the restrictions must be necessary and proportionate. 284
This chapter will open with an introduction to the principles of proportionality and subsdiarity, which are used to determine if a measure is appropriate. Then, a discussion of the claimed costs of copyright infringement is conducted questioning whether the losses suffered are in fact as bad as is reported, followed by several examples in which disproportionate damages have been awarded. The original purpose of copyright law is then highlighted after which a comparison is made between the importance of copyright and the importance of internet access. Subsequently, by working through the criteria for proportionality and subsidiarity, the degree of appropriateness of the three strikes approach is then assessed followed by a discussion of the possibilities of the future, and what should be done with regards to the online copyright battle.
4.2 Determining Appropriateness
4.2.1 Proportionality and Subsidiarity “Any of the measures taken by Member States regarding end-users’ access to or use of service and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law, including effective judicial protection and due process.”285
Proportionality
284 Banisar (2010), note 239, p139 285 Press Release, European Union, Agreement on EU Telecoms Reform Paves Way for Stronger Consumer Rights, an Open Internet, a Single European Telecoms Market and High-speed Internet Connections for All Citizens, http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/09/491 (Nov. 5, 2009) (quoting Article 1(3)(a) of the new Framework Directive) (emphasis in original modified). As Guy Bono, the drafter of the amendment, stated, “We do not play like that with individual liberties. The French government should review its [graduated response system]!”; See also Yu (2010), note 133, p1378
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The general principle of proportionality is today a worldwide principle of law and is found in both the common law and civil law before national and transnational courts alike. 286 It is a key organizing principle of contemporary legal thought, and is the example of the depth of convergence of civil law and common law to a global uniform ius commune which hybridizes aspects of common law (binding case law) alongside civil law (general principles of law, into which common law fundamental rights are imported / subsumed). 287
The European doctrine of proportionality requires that an official measure must not have any greater effect on private interests than is necessary for the attainment of its objective 288 – that one may only act to the extent that is needed to achieve its objectives and nothing further. 289 The Privy Council adopted a three stage test – Lord Clyde observed that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself: “whether
(i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective” 290
Another way of looking at the principle of proportionality is that any measure by a public authority that affects a basic human right must be:
- Appropriate 291 and necessary in order to achieve the objective, which is intended, in other words, there are no less severe means of achieving the objective; and - Reasonable, in the way that the person concerned can reasonably be expected to accept the measure in question. 292
The level of proportionality shall be determined using the above three stage test as well as the subsequent three part criteria.
Subsidiarity
286 Eric Engle, ‘The history of the general principle of Proportionality: An overview’, (SSRN) 2010, p3 287 Ibid 288 Harris and Carnes, note 10 289 Office of the First Minister and Deputy First Minister, note 11 290 Harris and Carnes, note 10 291 According to an online dictionary, appropriate means suitable for a particular person, condition, occasion or place; or to be fitting, The Free Dictionary, http://www.thefreedictionary.com/appropriate
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The principle of subsidiarity requires that legislative action be taken at the appropriate level. 293 It involves the idea that a central authority should have a subsidiary function, performing only those tasks which cannot be performed effectively at a more immediate or local level. 294 It has been created for the purpose of better meeting the expectations of the people of Europe. 295 Specifically, that the EU should only act if the objectives of the proposed EU action cannot be sufficiently met by Member States and can be better achieved by the Union. 296 In more simple terms, this means that nothing should be done by a larger and more complex organization which can be done as well by a smaller and simpler organization. 297 Or alternatively, can something be done using less power and resources and still achieve the desired results.
The European protocol cites three criteria for determining whether subsidiarity has been fulfilled. Adopting and adapting the criteria for present purposes the following questions need to be asked: 298
(i) Does the action have transnational aspects that cannot be satisfactorily regulated at the local level? (ii) Would action at the local level or lack of action conflict with the requirements of the law? (iii) Would action at the higher level (central authority) produce clear benefits?
The extent of subsidiarity shall be determined using the above criteria.
4.2.2 Examples of Disproportionate and Proportionate damages According to the US Copyright Act, in a civil action, the rights holder can seek damages of 750 dollars per infringement up to 150,000 dollars. 299 Applied to the P2P cases, these numbers can add up very quickly, and as a result, this remedy has become a significant issue both in the legal and public sphere. 300 For instance, the RIAA has won large jury awards in cases involving average music consumers and hundreds of downloads on P2P networks. 301
293 European Union Committee, ‘Strengthening National Parliamentary Scrutiny of the EU – the Constitution’s subsidiarity early warning mechanism’, April 2005, p9, http://www.parliament.the-stationery- office.co.uk/pa/ld200405/ldselect/ldeucom/101/101.pdf
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Thomas-Rasset In November 2010, single mother Jammie Thomas-Rasset was ordered to pay a gigantic amount in damages to RIAA for 24 songs that she illegally downloaded and shared online in 2006. 302 The jury in that case decided that she was liable for $1.5 million, or $62,500 for each song she illegally shared. 303 This is the third trial for Thomas-Rasset, who was originally accused of sharing 1,700 songs. After one jury found her liable for copyright infringement in 2007 and ordered her to pay $222,000, the judge in the case later ruled that he was incorrect in instructing the jury and called for a retrial. 304 In the second trial taking place in 2009, a jury found Thomas-Rasset liable for $1.92 million to which she subsequently asked the federal court for a new trial or a reduction in the amount of damages. 305 The judge in the third trial found that amount to be “monstrous and shocking” and reduced the amount to $54,000. 306 RIAA then informed Thomas-Rasset that it would accept $25,000 if she agreed to ask the judge to vacate his decision and remove it from the record but Thomas-Rasset rejected the offer. 307
Tenise Barker In another older example, social worker Tenise Barker 308 had initially challenged the constitutionality of the damages in the case and succeeded in challenging RIAA’s claimed standard for liability in “making available”. 309 Although Tenise did admit in her answer that she had used Kazaa file sharing software, her attorney said that she had important affirmative defenses which would have been successful. 310 When asked how she felt, these were her comments:
“I love music. I grew up in a house where music was played all the time. We had milk crates filled with albums…. So to be sued for having music files on my computer is an insult. It’s a slap in the face. This experience has left such a bad taste in my mouth that I wanted to swear off music” 311
Tenenbaum Another recent case example is that of Joel Tenenbaum in which a federal jury ordered an award of $675,000, or $22,500 per song to the major record labels for willfully infringing 30 songs by downloading and distributing them over the KaZaA P2P network. 312
302 Baird (2009), note 134, p23; See also CNET, “Jammie-Thomas hit with $1.5 million verdict”, 3 November 2010, http://news.cnet.com/8301-1023_3-20021735-93.html
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Charles Nesson, who was Tenenbaum’s attorney and a Harvard Law School professor, said that he felt things might have been different had they been allowed to argue fair use but said they were not allowed to speak fairness even though he thought they had very strong arguments for it. 313
Professor Nesson expressed his views in an audio interview as follows:
“The idea that 7 clicks is causing millions to the music industry is ridiculous … It is disproportionate – a total lack of proportion. We have the industry’s power aggregating all the injury it feels is being caused to itself … all of it piled on to one kid in a single piece of litigation where the kid has no means of defending itself… No knowledge, no lawyer, no ability to do anything except succumb to settlements, to default judgments. Not a single case has gone through to trial to let serious judges look at the case and say this is what is really going on here. It is a misuse of the federal courts and the federal law. It is completely insulting.” 314
In response to that, general counsel for RIAA Steven Marks stated:
“The litigation was launched about 5.5 years ago not because we thought it was the best way, but it was the only way we thought we could handle it. There were no partners at the time and we were faced with the situation of trying to educate the wider population. Nothing was working. Just asking the simple question – is this legal or not, the numbers showed that around 30% said it was illegal. Within months of launching the suits, that number changed from 30% to 70% highlighting the unbelievable swing. It demonstrated unfortunately the best way to show people that such activity was illegal. It did help to address the problem. Now we have the opportunity to transition the program, including working with ISPs to resolve the problem.” 315
It has been noted that such recent cases have received substantial mainstream and new media press coverage, with some wondering if the RIAA had terminally shot itself in the foot with what is generally perceived by the public as disproportionate damage awards against their very own customers. 316
Proportionate Damages Proportionate damages attribute only partial liability to the alleged infringer – only to the extent of the negligence or wrongdoing that he or she is responsible for. 317 The writer has not been able to locate
312 Ben Sheffner, Arstechnica, “Οy Tenenbaum! RIAA wins $675,000 or $22,500 per song”, 2010, http://arstechnica.com/tech-policy/news/2009/07/o-tenenbaum-riaa-wins-675000-or-22500-per-song.ars
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recent online p2p cases in which proportionate damages have been awarded reflecting the fact that either there are not enough cases being litigated, or that the courts have not been able to come up with a working system as yet. The Tenenbaum and Thomas Rasset courts ruled that there must be some relationship between actual damages and the amount of statutory damages that is awarded, which may be difficult for some copyright plaintiffs to enforce their rights because they must show the actual harm that they have suffered from the infringement – arguably a potentially difficult and expensive task to carry out especially in the context of digital media and file sharing. 318 Another possibility is that courts may choose to follow the ‘three times the statutory minimum damages’ as a de facto standard in determining statutory damages in p2p file sharing cases.319 This area of copyright law, it has been noted, promises to continue to be in an unsettled state as no other courts, nor government have taken action to resolve the matter through legislation. 320
4.3 Back to basics – purpose of copyright law Before making a determination on whether the three strikes approach is appropriate, a re-visit back to the purpose of copyright law shall be conducted in this section.
Many believe that the primary purpose of copyright law is to protect authors against those who would steal the fruits of their labor. 321 This misconception is incorrect, but because it has been repeated so often that it has become accepted among the public as true, and also poses serious danger to the core purpose that copyright law is designed to serve. 322 The core purpose of copyright law, according to the US, is found in its Constitution: Article 1, section 8, clause 8 provides that Congress shall have the power “to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. 323
This misunderstanding held by many, and emphasized by for example the stern law enforcement agency warnings at the beginning of video tapes, by overly broad assertions of the rights in the copyright notices, and by the general lack of public discourse about the balance required in copyright law if copyright is to fulfill its constitutionally entrenched goal of promoting knowledge and learning, threatens to upset the delicate equilibrium in copyright law. 324 And it is subsequently turning copyright
318 Brian T. Yeh, ‘Statutory Damage Awards in Peer-to-Peer File Sharing Cases Involving Copyrighted Sound Recordings: Recent Legal Developments’, Congressional Research Service, 16 September 2010, p14, http://www.fas.org/sgp/crs/misc/R41415.pdf
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into what the founding fathers of the US tried to guard against which was a tool for censorship and monopolistic oppression. 325
Where the law of the US directly reflects the utilitarian considerations of information policy such as to promote science and the useful arts, in Europe, ‘author’s rights’ are based primarily on notions of natural justice and are not created by law, but always existed in the legal consciousness of humans through the concept of droit d’auteur. 326 In the pure droit d’auteur philosophy, copyright is an essentially unrestricted natural right reflecting the ‘sacred’ bond between the author and his personal creation. 327 There are also other rationales underlying the copyright concept which are recognized in Europe including economic efficiency, protection of culture and dissemination of ideas. 328
The general objective of copyright is to realize a balance between the interests of rights holders and those of private and professional users seeking access to culture. 329 The original purpose of copyright is that of protecting the interests of right holders only to the extent that a general progress of culture is assured, and not to have it completely dominate over users’ actions and abilities. 330
However, it should be noted that the applicable acts also play an important role, and it is not only about the purpose. Within the act would contain a right which should be honored even if the act is not agreed upon. A distinction needs to be made between an inappropriate act and an inappropriate measure. An inappropriate act could contain an appropriate measure. Using a simple example, if an act states that cycling is forbidden (presumably an inappropriate act for all intents and purposes), a measure of 4 hours of prison time could be considered appropriate and fair even though the act is inappropriate and unfair. The distinction has to always be made between the law and the measure, and it does not necessarily always directly correlate.
325 Ibid: The first copyright act in the US granted the exclusive right only to print, publish, and vend a copyrighted work, which lasted for fourteen years and also a possibility for a further fourteen year term. No exclusive rights to perform the work or to create an adaptation of the work were granted, only the right to print, publish and sell. However, under current copyright law, copyright owners have the right to publish, distribute, control the public performance, control the making of adaptations of the work, and to control the reproduction of the work. Additionally, as a result of the Copyright Term Extension Act passed in October 1998, the basic term of copyright lasts for the life of the author plus a further seventy years. The outcome is a far bigger monopoly and a far longer time that the public must wait for any given work to enter the public domain and be used without adverse legal ramifications. 326 P. Bernt Hugenholtz, “Copyright and Freedom of Expression in Europe”, Expanding the Boundaries of Intellectual Property, Oxford University Press, 2001, p2, www.ivir.nl/publications/hugenholtz/PBH-Engelberg.doc
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4.4 Proportionality Applying the 3 stage test for proportionality discussed earlier to the present scenario of online copyright infringement and the three strikes approach within the music, movie and games industry, the following questions need to be asked:
(i) Whether the objective of protecting the interests of copyright holders is sufficiently important to justify limiting the freedom of expression and speech through the right to internet access? (ii) Whether the ‘three strikes and you’re out’ approach is rationally connected to protecting the interests of copyright holders? and; (iii) Whether the means of disconnecting internet access is no more than is necessary to accomplish the objective of protecting the interests of copyright holders?
There are at least two different viewpoints on the issue of the importance and appropriateness depending on how copyright law is perceived. The first view is that of the industry. So far, it has been the industry view that has prevailed explaining the many restrictions on the use of copyright. The other view is that of the public, and is distinguished from the view of the consumer (who arguably wants everything for free). If copyright law is seen mainly as an investment, then the industry’s viewpoint prevails. If however copyright is seen to be both an investment as well as for the general development of knowledge and culture, then a balance needs to be created for copyright to exist for both those purposes. An analogy that is sometimes used is that if it is ok for one to be punished by for example going to jail for stealing a car, then why should it not be the same when one uses copyright unlawfully? There is another group that believe that copyright is not property, that copyright does not involve stealing in the traditional sense of the word, and that copyright is not necessary. This anti-copyright group also known as the free content movement argues that stealing is not the same as copying and therefore a big distinction should be made.
Accordingly, responding to the questions posed above, firstly, the objective of copyright differs according to the perspective taken. The industry perspective naturally is that copyright is sufficiently important. However, the public and society would prefer a less restrictive version or even an absence of copyright to enable the mass distribution and circulation of the expression of ideas to which the industry argue that the quality of which would not be as high as compared to when it is protected by copyright. The writer’s response to the first question is that protecting the interests of copyright holders is not sufficiently important to justify limiting the freedom of expression, information and speech. Copyright is important, but it is not that important so as to cause restricted internet access, which is part of the freedom of expression, information and speech.
Additionally, the three strikes approach is not suitable and necessary as there are less severe means of managing copyright infringement as discussed in the possible measures section in chapter 2. Further, it is not reasonable that the alleged copyright infringer can be reasonably expected to accept the three strikes approach given the importance of the internet in today’s day and age.
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Secondly, the three strikes approach is not rationally connected to protecting the interests of copyright holders – at least not the version that has internet disconnection as its penalty. There are many other available measures in existence, or being considered such as education, licensing, notice and notice, and the ADR system that can be used to arguably achieve a similar outcome.
And thirdly, the means of disconnecting internet access is more than necessary to accomplish the objective of protecting the interests of copyright holders. The balance between investment and the development of knowledge and culture needs to be maintained to enable the greatest level of satisfaction by the greatest number of parties. Currently, this balance is maintained through enforcement. The law proclaims that it is through copyright law that that balance is reached.
The question that needs to be asked is whether copyright infringement currently distorts that balance. If the view is that there has been so much infringement that the balance has in reality been distorted, then more enforcement rules (through law, market, social norms and technology) are required to restore it. If however the balance is currently in place, which is what the writer feels, then to introduce more enforcement would be inappropriate.
4.5 Subsidiarity Moving on to the subsidiarity principle, the main question to ask is if the action can be done using less power and resources while still achieving the desired results. More specifically, would the three strikes approach still be effective in preventing online copyright infringement if it was carried out using a less severe penalty than internet disconnection? In the writer’s opinion the answer is yes as there can be other types of penalties such as reduced internet connection (as opposed to complete disconnection) or an increase in educational activity.
A summary of findings in the degree of proportionality for each of the measures discussed earlier is presented in the following table.
A summary of the findings is presented in the following table. 331
PROPORTIONALITY 332 MEASURES 1st 2nd 3rd STRENGTH 333 criteria criteria criteria LAW Notice and Takedown (DMCA) + + – Medium
331 This table attempts to summarise the requirements to determine the level of appropriateness of a copyright measure using proportionality by listing out the criteria and determining if each measure fulfils them. 332 In the ‘Proportionality’ column, each of the three points correspond to the three part test used to determine the level proportionality. In summary, the three parts are appropriateness (1 st point), necessity (2 nd point) and reasonableness (3 rd point). A ‘+’ means that the criterion is satisfied and a ‘–‘ means that the criterion has not been satisfied. 333 The ‘Strength’ column reflects the level of proportionality there is for each of the measures. The possible levels are Very low, Low, Medium, High, Very high
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Litigation (mass) – + – Low Graduated Response with – – – Very low internet disconnection as penalty (three strikes and you’re out) ADR System modeled on + + + Very high ICANN’s UDRP TECHNOLOGY Restrictive licensing agreements Blocking and protec tion + + – Medium technology SOCIAL NORMS Education + + + High Advertising campaigns MARKET New b usiness models + + + High
According to the above table, the measures that were low in proportionality were the Graduated response with internet disconnection as the penalty, ACTA and COICA. These were the ones that contained the possibility of disconnection. Taking into account the discussion in chapter 3, the writer is of the opinion that any measure that involves the disconnection of the internet should be looked upon unfavorably therefore explaining the low grading of them in the table.
In conclusion, the three strikes approach with internet disconnection as the penalty, is disproportionate in its operation and therefore is not an appropriate measure for online copyright infringement.
4.6 The Future The original purpose of copyright is to protect the interest of right holders only to the extent that a general progress of culture is assured. 334 However, as it has been pointed out, if copyright cynically departs from its purpose, piracy becomes an easy option.335 This is in fact already happening in society with the problem of p2p file sharing being out of control, and thus explaining the constant search for better and stronger measures to be put in place by those who stand to lose the most by such acts, for example by the recording companies.
Perhaps the concept of copyright needs to be revisited and modified taking into account the real purpose behind its creation. Copyright was never primarily about paying artists for their work but was designed by and for distributors and publishers which in today’s terms include recording companies. 336
334 Association for Fair Audiovisual Copyright in Europe, note 329 335 Association for Fair Audiovisual Copyright in Europe, note 329 336 Fogel (2005), note 99
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The creation of the internet has provided an infrastructure that the Stationer’s Company never envisioned – a world without distribution costs and therefore, it is no longer logical to restrict sharing in order to pay for centralized distribution. 337 It has been noted that abandoning copyright now is not just possible, but desirable as it would benefit both artists and audiences aesthetically. 338 It is very important for the sake of the online society and for the upcoming digital natives that the focus and importance of copyright should shift to something more practicable. 339 Even WIPO is realizing that copyright law may have gone too far. 340
Perhaps the industry is too focused on using the law to combat the problem. As Lawrence Lessig explained, behavior is regulated by four types of constraints with the law being just one of them.341 The law is all about obeying orders, and if they are not obeyed, punishment will result. 342 However, there are other forms of regulation such as through social norms, through markets by way of price, and through architecture, which also impact and regulate human behaviour. 343 These four modalities operate together, although to different extents, and guide individuals to behave or act in a certain way. 344 Therefore, perhaps the focus should move away from law to architecture, the market and social norms to enable an outcome where infringement is reduced. In some ways, this has already taken place through the use of self help and DRMs and through education. However, more needs to be done in this aspect.
It is the nature of society and they way it is progressing that will lead inevitably to some industries being less popular than others. In these days, the internet, computer games and mobile telecommunication applications “take eyeballs and dollars away from DVD and CD sales, but also sports arenas, sales of board games and printed works. Magazines are also suffering”. 345 Change is consumer driven, and it’s futile for the industry to try to hold fast to a business model and methods of content distribution which are dying with or without fierce law enforcement of copyrights 346 – this is something that the industries need to understand and is of utmost importance and urgency – for the shift to take place and leave more than one party in a win-win situation.
337 Fogel (2005), note 99 338 Fogel (2005), note 99 339 Fogel (2005), note 99 340 Techdirt, Mike Masnick, ‘Even WIPO Realizing that Copyright Law may have gone too far’, 10 March 2011, http://www.techdirt.com/articles/20110310/03032313426/even-wipo-realizing-that-copyright-law-may-have- gone-too-far.shtml
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5. CONCLUSION
Given the recent events of the introduction of the graduated response and the creation of ACTA and COICA, among other things, it doesn’t seem likely that the problems and issues of online copyright infringement are going to evaporate and disappear into thin air. There are far too many players on opposite sides with differing opinions for any settlement of online copyright issues to be finalized and made into consensus – at least in the near future. More holistic and grassroots level work needs to be done to educate and empower the various actors in this field.
The current measures available for the purpose of managing online copyright infringement include litigation, education, self help, business models, and the graduated response. Not yet a standardized term, the graduated response system includes the three strikes approach – a measure that involves internet disconnection upon receipt of the third notice by an alleged online copyright infringer. The intention behind the creation of such a system is to manage and also reduce online copyright infringement of music, movies and games through p2p file sharing activities. However, the actual penalty outcome of such a system, which is internet disconnection for a specified period of time, leads to the breach of possibly a human right under the general right to freedom of expression and information. This view has not been entrenched within every legal system as yet. Only Finland has made internet access a human right so far, but the writer is confident that soon, more and more nations are going to start seriously considering making internet access a specific human right. And even if such an event does not happen, the right to internet access can very straightforwardly be classified under the right to freedom of expression and information.
Is the “three strikes and you’re out” approach an appropriate measure for copyright infringement? Using the principles of proportionality and subsdiarity to determine the level of appropriateness, the conclusion is that the “three strikes and you’re out” approach is not appropriate. This is after comparing the importance of copyright and internet access in society.
The general objective of copyright is to realize a balance between the interests of rights holders and those of private and professional users seeking access to culture. It was not specifically created to protect authors against those who would steal the fruits of their labor. However this misconception has been spread far and wide by those who stand to lose the greatest in terms of profits and power – the distributors. It has driven them to desperation and as a result caused them to search for every possible way and means to combat the massive online proliferation of music, movies and games. Such levels of desperation have resulted in ferocious litigation with unfair outcomes and reports being written exaggerating the extent of losses experienced within the industry.
All this without really understanding and truly appreciating the fact that the internet has brought with it an infrastructure for simple, cheap, fast and extensive distribution – the complete opposite of how things were back in the old days when the copyright concept was first created. With new infrastructure
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come new methods and new ways of doing things including accessing information and creating. And with these new methods and ways, more and more people are relying on the internet for conducting their daily affairs including school, work, finances, government related activities, business, communications, information retrieval, social contact, health related issues and general livelihood.
Bearing the fact of increasing online reliance in mind, the answer to the question of which is more important copyright or internet access, it is natural to choose internet access. Any rule or law that contains as a penalty, internet disconnection for a period of time, is not appropriate in today’s society. The disconnection aspect of the three strikes approach should be removed to make it a more appropriate measure, or modified to perhaps include other aspects such as education. Another option could be to overhaul the entire copyright regime and create new rules for this dynamic platform called the internet.
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