| 'We need a form of regulation that represents the interests of all stakeholders involved – ISPs, rightsholders and users.' |
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The short answer to the question posed by this spiked-debate is that self-regulation is necessary, but it is not sufficient by itself.
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Self-regulation is not a panacea to solve the problems of overlapping jurisdictions on the internet. The problem with industry self-regulation is, as Sandy Starr rightly points out, that it can be undemocratic and non-transparent. The challenge will be to find a form of regulation that combines both industry and government regulation, which is both effective and representative of the interests of all stakeholders involved.
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Copyright protection on the internet requires a careful balancing act between the interests of rightsholders, users and internet service providers (ISPs). New technology enables perfect copying, but at the same time allows new mechanisms for copyright protection. Here, however, we are concerned about the position of ISPs.
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The problem is that we are dealing with a tripartite relationship - the ISP is the 'piggy in the middle' between the conflicting interests of the rightsholders and internet users. If ISPs take content down, they may be liable towards users who wish to make content available or who wish to retrieve content, potentially restricting users' freedom of speech. But if ISPs do not take content down, they are potentially liable towards the rightsholder for copyright infringement.
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A way out of this conundrum is to ensure that infringing material is taken down without unduly restricting freedom of speech by forcing ISPs to take down all material following a complaint. Such a procedure will only work if ISPs are given statutory immunity from liability towards internet users, provided that ISPs comply with the terms of the procedure.
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Industry self-regulation cannot achieve such immunity - legislation is necessary. There should be framework legislation setting out the parameters of the procedure, to ensure legal certainty. The purpose of the procedure is to determine whether a complaint is justified or not. This determination could be done by fast and efficient online arbitration, perhaps modelled on the provisions of ICANN's Uniform Domain Name Dispute Resolution Policy  .
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The first issue such a procedure has to address is whether the ISP should have a duty to take down material on complaint. It is then up to the user to invoke the online arbitration procedure to have the material reinstated. Alternatively, the ISP could have a duty to put material back if the user issues a counter-notification. In this case, it would be up to the rightsholder to invoke the online arbitration procedure to have the material permanently taken down.
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In either option, there will be a short period where either the user or the rightsholder 'suffers' - so it is important that the procedure is fairly swift. It seems logical that the onus is on the rightsholder to have the burden of initiating the procedure, as those who wish to rely on their rights usually have to prove them.
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However, as the law now stands, with the implementation of the Ecommerce Directive in the UK, the burden is effectively on the user to claim that his material was unlawfully removed, as ISPs are under a duty to remove allegedly infringing material on notice.
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Online dispute resolution may help here as it gives the user the possibility of cheap, speedy and accessible redress. If the ISP takes down material on notice from a rightsholder, the user could start online arbitration proceedings. If the tribunal finds that there is no infringement of copyright, the ISP should reinstate the material. ISPs, however, might be worried that in doing so, they would still be liable to the rightsholder. For this reason, it's important that ISPs be given statutory immunity.
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Parties should still have recourse to the courts. A fast and cheap online arbitration procedure will necessarily be, to a certain extent, rough justice, as it will proceed on the basis of limited evidence. The losing party should still be able to go to court, if the value of the dispute merits litigation.
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Furthermore, it will be important that all interests are represented on the panel of the tribunal. Arbitrators should not only be recruited from the ranks of copyright lawyers representing the copyright industry, but also represent the interests of internet users and ISPs, to avoid systemic bias.
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The problem will be to find adequate representation of user interests.
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Julia Hörnle is a solicitor who has worked for the law firm Eversheds, and is currently a research fellow at the Institute for Computers and Communications Law, Queen Mary, University of London. She is co-editor of Ecommerce Law and Practice in Europe (Woodhead Publishing, 2001). Buy this book from Amazon (UK)
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