| 'Those of us who create intellectual property welcome the internet as a tool for disseminating our work - but not at any price.' |
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Internet service providers (ISPs) host material that we may all access as we search for words, pictures and sounds on the internet.
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By law, these ISPs are liable for the content of the material on their websites. For example, they have to ensure that it is not obscene or defamatory, and that it doesn't infringe copyright. The ISPs are running a business, and the stock that is offered using their facilities (however it is to be paid for) must be both within the law and available to offer in the first place.
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But ISPs also need some protection, given their liabilities, from the possibility that - unsuspectingly - they are hosting illicit material. In our present context, that would mean copyright material which is not cleared for particular use by the person posting that material on the internet. The question is: how may protection be afforded, without offending the legitimate rights of content providers to post material that is acceptable?
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There is no simple and universal answer to that question, given all the parameters that may come into play. With factors such as the potential cloning of illicit music tracks for piracy on the one side, and the cynical use of copyright protection measures to stifle legitimate debate on the other, there is unlikely ever to be a one-size-fits-all regulatory system which answers every particular case.
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So the question becomes, what is the most appropriate way to tackle this pressing problem in practice?
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Self-regulation, in which the ISPs follow a stated, recognised and agreed system of procedures, is likely to be the best possible approach in which all involved in the matter are protected. It is certainly an advance over existing practice, in which we all take pot luck when any internet content is questioned or challenged.
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Indeed, it may be argued that the best interests of internet users would be served by a situation in which all the parties to the provision of material (creator, content provider and host) are each secure in agreement that the product is safe, has proper provenance and may not be wrongly removed from the internet.
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An agreed code of practice - for example, notice and takedown - allows ISPs the protection they need against rightsholders who complain that their intellectual property is being used without the owner's consent. It also allows ISPs the protection they need against content providers who claim that perfectly legitimate material has been challenged and removed.
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A code of practice affords rightsholders the opportunity to have their private work removed from unrestricted public access as soon as possible - preferably before it has been copied illegally, which can happen in moments. But it also requires rightsholders to be answerable for false claims. And a code of practice offers content providers the chance to respond if improperly challenged, and then to have their material restored to its rightful place.
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Such a code of practice is most efficiently set up in a self-regulatory environment where all those with legitimate interests agree how regulation should be carried out. Any judicial approach is bound to be unwieldy, time-consuming and subject to differing local regulations.
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The point has been made that a self-regulatory method such as notice and takedown offends civil liberties, in that it reverses the presumption of innocence. It is claimed that a content provider is assumed in advance to be infringing copyright rather than assumed to be acting properly, because the material in question is taken down immediately on notice.
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I am not a lawyer, but it seems to me that this argument muddles criminal law - in which innocence is presumed unless a court or jury finds that there is more than a reasonable doubt that the accused be guilty - with civil law. We are not talking here about a remedy for a wrong committed, but about a procedure to safeguard proper business practices. In any case, the motion for this spiked-debate is simply that self-regulation is the route to go; not any particular system - such as notice and takedown - within a self-regulatory framework.
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There is also often a cry for freedom of expression. Why shouldn't anyone be permitted to post anything they choose to say or portray on the internet? After all, the European Convention for the Protection of Human Rights and Fundamental Freedoms  supports freedom of expression; of course it does.
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But, acknowledging that this freedom carries with it duties and responsibilities, the Convention doesn't allow freedom of expression at the expense of offending the rights of others. For example, when the rights of composers and songwriters - the moral and commercial rights we have with regard to the use of our music and lyrics - are offended, and illegally offended, by the unlicensed and/or unacknowledged inclusion of that work in the content of a website.
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We are talking about our creations and our livelihood. Those of us whose work is the creation of intellectual property welcome the internet as a tool for the dissemination of that work. We support the global and speedy interchange of material between friends, between businesses and customers, between people with something to say and people who have ears to listen.
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But not at any price. Not at the cost of throwing away the best (albeit imperfect) systems we have come up with so far to enable creators to be rewarded for their work according to its use. Copyright must be protected. And self-regulation would appear to be an entirely legitimate approach to protecting copyright on the internet.
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The composer David Stoll is ex-chairman of the British Academy of Composers and Songwriters and a board director at British Music Rights. He writes music for the concert hall, theatre and the media, and much of his work is available on CD. For more details, visit his website.
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