European copyright regulators are trying to learn from the USA. But they’re learning the wrong lessons.
Not content with drafting heavy-handed legislation such as the USA’s Digital Milennium Copyright Act (DMCA) and Europe’s Ecommerce Directive and Copyright Directive, governments and industry are continually looking for new ways to put a stranglehold upon the digital dissemination of films, music, books and software (1).
Since the USA has had more experience with copyright legislation targeted at internet piracy – the DMCA became law in 1998, while the Ecommerce Directive and Copyright Directive are still being implemented by European Union member states – the UK government’s Department of Trade and Industry (DTI) and the Publishers Association recently went to the USA to see what they could learn from the US experience (2). The resulting report, Combating Internet ©opyright Crime, was presented at the DTI’s offices in February 2003.
Hugh Jones, copyright counsel at the Publishers Licensing Society, introduced the report by arguing that copyright infringement ‘is a massive problem now for the music industry, the film industry, the software industry’. The true extent of this problem is less certain – recent attempts to correlate falling CD sales with digital music piracy have been questioned on empirical grounds (3). Still, it is fair to say that applying established copyright law to the internet is a difficult business.
The main problem for copyright owners wishing to complain about infringement, is knowing who to address claims to. It unclear who should assume legal responsibility for content published on the internet, where users can post content with varying degrees of anonymity – the only easily identifiable party is the internet service provider (ISP) that hosts the content. Those complaining of infringement are faced with three options, set out in Combating Internet ©opyright Crime: ‘he may ask the ISP to provide the identity of the user’, ‘he may ask the ISP to pass on a complaint to their customer’, or ‘he may ask the ISP to suspend or terminate their customer’s internet connection’ (4).
None of these options is particularly attractive – the first violates privacy, the second is ineffective, and the third is excessive. Not only that, but all three options place too heavy a burden of responsibility upon the ISP. The DMCA and the Ecommerce Directive ostensibly absolve ISPs of such responsibility, by dictating that ISPs are not liable for copyright-infringing content that they host, provided that they remove it ‘expeditiously’ upon notification. As Hugh Jones put it at the report launch, ‘intermediaries will not be liable’.
The problem is that mere notification by alleged victims of infringement is not enough for ISPs to remove content on a fair basis. The DMCA is slightly preferable to European legislation, because it at least incorporates mechanisms intended to discourage wrongful takedown. But this does not make the role of ISPs any fairer. Supporters of new copyright legislation often argue that this legislation removes ISP liability, but given the heavy burdens placed upon ISPs to remove all allegedly infringing content, it is equally true to say that new legislation imposes ISP liability.
As I have argued previously on spiked, new regulatory regimes remove copyright regulation from public visibility and accountability (see Self-regulation makes us all blind). The authors of Combating Internet ©opyright Crime consistently praise the ‘trust’ that makes the US system run smoothly, arguing that ‘the practical goodwill of internet intermediaries, such as ISPs, will be essential in finding workable remedies for IP infringements online’ (5). And at the report launch, Ronnie Williams, chief executive of the Publishers Association, argued that the ‘trust model’ is ‘the end we want to achieve’ in Europe. But ‘trust’ here is simply a euphemism for industry collusion.
It is the very unaccountability of today’s copyright regulation that enables regulators to claim that their system is a success. Combating Internet ©opyright Crime points to ‘very strong industry and government evidence in the USA that notice and takedown under the DMCA system works effectively, cheaply and well’, noting that ‘tens of thousands of notice and takedown notices have been issued, but counter-notices are very rare (virtually negligible: fewer than 10 out of 20,000)’ (6). Hugh Jones announced proudly at the launch that ‘in five years, in the most litigious country on Earth, there were hardly any court cases for notice and takedown’.
But such statistics tell us nothing about the adverse consequences of notice and takedown. Who is to say how many people have been discouraged from publishing content, simply because they are uncertain whether or not it will be removed under the new regime, and would rather not take the risk? Who is to say whether the relative absence of counter-notices is due to people conceding that they are genuinely guilty of copyright infringement, or due to people opting not to go to the effort of formally protesting their innocence?
Criticism of notice and takedown has been more vociferous in the USA, with its strong tradition of civil liberties, than it has in Europe. It seems that the authors of Combating Internet ©opyright Crime have taken such criticism on board. After meeting with a number of corporations and regulatory bodies, they concluded their trip by meeting with the Electronic Frontier Foundation: ‘We all agreed that any notice and takedown regime must have in place sufficient safeguards to prevent it being misused for the purpose of censorship.’ (7)
Unfortunately, the presumption of guilt inherent in notice and takedown opens it up to misuse no matter how many ‘safeguards’ are attached to it. Still, the report’s acknowledgement that a case against notice and takedown exists suggests that copyright regulators have woken up to the fact that not everyone agrees with them.
Hence new strategies by the regulators, such as connecting copyright violation with risk from organised crime. ‘There is a serious risk that the current players, mainly enthusiasts and counterculture rebels, will be joined by more organised criminals’, argues Combating Internet ©opyright Crime, as though to let the ‘enthusiasts’ and ‘rebels’ off the hook a bit (8).
Regulators are also relying more upon moralism in their arguments. So we learn from Combating Internet ©opyright Crime that the Business Software Alliance’s ‘objective was not just enforcement but also to find a way to stigmatise pirates’, while Microsoft has a ‘new system, where they send “friendly lawyers” to go and visit infringers to explain the errors of their ways’. The report concludes that ‘it is essential to stigmatise piracy effectively in the public mind’ (9). And Anthony Murphy, director of copyright at the UK Patent Office, used the report launch to flag up the Patent Office’s new initiative to foster public respect for intellectual property (10).
There is nothing wrong with the public having a better understanding of intellectual property law – of the balance that such law attempts to strike, between public benefit from creations and private reward for creators. But the regulators’ new moral broadside is motivated, less by a desire to enlighten the public than by fear that the public does not attach the appropriate stigma to the digital distribution of film, music and software.
The fear and desperation that underlies the moral message actually makes it ring false. When head of the Motion Picture Association Jack Valenti recently gave a lecture to the Georgetown University Law Centre, and argued that ‘too many students don’t believe it’s wrong to steal these movies’, he was laughed out of town. ‘I think you’re simplifying the argument beyond the level that’s appropriate for this audience – I’m sorry’, said one student.
The public has not turned morally bankrupt overnight on the question of copyright – people have merely become accustomed to the possibilities opened up by new technology. Belated attempts by regulators to turn back the clock, using technology and law, have proven problematic, so the regulators are now trying to engineer user behaviour.
Like the technological and legal attempts to stem digital piracy, the moral attempt is unlikely to achieve its objective. But whether successful or not, wrongheaded regulatory initiatives pose a threat to the free flow of ideas. If European regulators want to learn from the USA, this is one lesson they could do with learning.
Sandy Starr has consulted and written on internet regulation for the Organisation for Security and Cooperation in Europe, and for the European Commission research project RightsWatch. He is a contributor to Spreading the Word on the Internet: Sixteen Answers to Four Questions, Organisation for Security and Cooperation in Europe, 2003 (download this book (.pdf 576 KB)); From Quill to Cursor: Freedom of the Media in the Digital Era, Organisation for Security and Cooperation in Europe, 2003 (download this book (.pdf 399 KB)); and The Internet: Brave New World?, Hodder Murray, 2002 (buy this book from Amazon (UK) or Amazon (USA)).
spiked-debate: Copyright in the digital age
(1) See the Digital Millennium Copyright Act (.pdf 318 KB), Directive 2000/31/EC of the European Parliament and of the Council on Certain Legal Aspects of Information Society Services, in Particular Electronic Commerce, in the Internal Market (Directive on Electronic Commerce) (.pdf 105 KB), and Directive 2001/29/EC of the European Parliament and of the Council on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society (.pdf 152 KB)
(2) See the Department of Trade and Industry and Publishers Association websites
(3) RIAA’s statistics don’t add up to piracy, George Ziemann, Mac Wizards Music, 11 December 2002
(4) Combating Internet ©opyright Crime (.pdf 0.99 MB), Department of Trade and Industry/Publishers Association, February 2003, p10
(5) Combating Internet ©opyright Crime (.pdf 0.99 MB), Department of Trade and Industry/Publishers Association, February 2003, p30
(6) Combating Internet ©opyright Crime (.pdf 0.99 MB), Department of Trade and Industry/Publishers Association, February 2003, p30
(7) Combating Internet ©opyright Crime (.pdf 0.99 MB), Department of Trade and Industry/Publishers Association, February 2003, p29. Also, see the Electronic Frontier Foundation website.
(8) Combating Internet ©opyright Crime (.pdf 0.99 MB), Department of Trade and Industry/Publishers Association, February 2003, p4
(9) Combating Internet ©opyright Crime (.pdf 0.99 MB), Department of Trade and Industry/Publishers Association, February 2003, p21, 26, 31
(10) See the UK Patent Office website
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