| 'On the internet a different balance has to be found – taking into account the inadequacy of the court system and the greater stakeholder interest of the citizen.' |
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This spiked-debate is intended to be about whether self-regulation by industry stakeholders is a legitimate means of regulating infringement on the internet. Unfortunately, the debate has become characterised as a battle between entertainment industry interests and citizens' rights.
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The entertainment industry suffers from the infringement of its copyright material at the hands of (a minority of) players in the online value chain, including citizens. A solution has to be found to this problem.
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Infringement of creations was the primary motivation for the original enactment of copyright legislation. Sadly, infringement has continued ever since, both in organised form (to generate illegal revenue) and in 'private' form.
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The organised infringement has been injurious to the entertainment industries, and over the years, steps have been taken to limit its effect. Arguably, private infringement has usually been at such a level, and within the boundaries of most fair use doctrines, that it has not been considered to be so damaging.
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In some countries' legislations, a means of recompensing the rightsholders for this private infringement has been found through the levy system. The courts have been the mechanism provided to rightsholders to redress infringement of their content. However, successful actions have meant that some content has not been available for distribution to the public. Most citizens were unaware and unconcerned that this was the copyright regime in which they lived.
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The development of the protocol TCP/IP  and the markup language HTML has put massive pressure on this relatively contented state of affairs, for two reasons.
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First, the ability to make perfect digital copies at greater speed, and transmit them across the globe in seconds, has significantly increased the problem of infringement. It gives far greater opportunities for organised infringement, and enables citizens to 'privately infringe' way beyond any fair use doctrines. In the context of the internet, court procedures are simply too slow to be effective, because of the volume of cases and the protracted nature of the process. A faster solution needs to be put in place.
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Second, the very nature of the internet as a medium for information and entertainment has hugely broadened horizons and expectations of what content is available. This has resulted in a greater public interest in how the availability of this content is 'controlled' by the entertainment industry, and other stakeholders in the delivery chain.
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The creation of organisations such as the Electronic Freedom Foundation and Internet Freedom is testament to that. Because of technological change, 'citizens' are now more significant stakeholders in these debates, although the concerns generated from this position are usually massively overstated.
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The development of a solution therefore comes down to finding a balance among a range of potentially competing interests, with creators and the entertainment industry at one extreme, and citizens at the other extreme. Finding this balance has been the problem encountered by legislators since the drafting of the very first copyright law.
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Now, however, a different balance has to be found, which takes into account the inadequacy of the court system and the greater stakeholder interest of the citizen. But where do we draw the line?
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First, there is the detailed legislative solution. This is the route taken in the Digital Milennium Copyright Act . However, this is the ultimate example of a self-regulatory agreement between the interested parties with little more than ratification by Congress. Furthermore, the process is seen as being cumbersome, expensive and frequently heavy-handed, and citizen's interests are largely ignored. Even if the European Union was to pursue such a solution for Europe, it is certain that the solution would suffer from the same problems.
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Second, there is the creation of a purely self-regulated solution. This is the route taken in the Ecommerce Directive . The limited attempts to provide this solution have only involved industry stakeholders. In my experience, this is because consumer/citizens' rights organisations that are well qualified to represent us all have failed to pick up these issues, despite attempts to engage them in the debate.
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Debate has been left to a few lonely voices that, as rightly pointed out by Sandy Starr, cannot claim to represent the constituency of citizens. Despite this, industry stakeholder consensus has considerably improved. And while problems remain, and there may be a need for some form of legislative underpinning, the atmosphere is one of seeking mutually satisfactory solutions. An implementation need not be that far away.
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A third alternative would be to provide a mixture of legislative and self-regulated solutions, which seeks to provide the speed, efficiency, and certainty that is required by industry stakeholders, while providing the protections required by the citizen's rights lobby. Industry stakeholders would finance and operate the practical self-regulatory notice and takedown procedure. This would be overseen by a public organisation with judicial power, that would ensure that the interests of individuals (whether creators or citizens) are not being abused.
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The different interests of the creator at one extreme, the citizen/consumer at the other, and all stakeholders in between, now converge through the technology of the internet. Past copyright legislation has not needed to cope with such a complex balance of interests.
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To achieve a balance in the fundamentally different medium of the internet requires more sophisticated mechanisms. Self-regulation is a legitimate cornerstone of that solution.
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Mark Isherwood is a director and joint founder of Rightscom Ltd, a digital content strategy consultancy firm specialising in advising all clients involved in the content delivery chain, on the many technical and commercial solutions needed for the transition of their businesses from an analogue/physical environment to an digital/online environment.
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