ISP Liability, Limitations And Exceptions Top Global Copyright Issues In 2009

Copyright has taken centre stage again this year as the battle over internet service provider (ISP) responsibility for digital piracy intensifies and spreads around the world.

2009 will also feature growing global pressure for a more harmonised system of copyright limitations and exceptions, and continuing controversy over the proposed Anti-Counterfeiting Trade Agreement (ACTA).

Intermediary Liability

This year is crucial for the music industry, which needs to see “ISP cooperation become a reality,” said a spokesman for the International Federation of the Phonographic Industry. IFPI’s Digital Music Report 2009 [pdf], published on 16 January, warned that despite a greater variety of legitimate online music offers and innovative business models, peer-to-peer (P2P) piracy continues to overwhelm the sector.

The recording industry’s belief that ISPs should assume more responsibility for protecting the content that passes through their pipes continues to find a sympathetic ear in some governments.

In 2007, French ISPs agreed to try filtering infringing files (IPW, European Policy, 27 November 2007). A proposal by French President Nicolas Sarkozy for a “graduated response” scheme in which alleged infringers are given two warning notices before their internet subscription is terminated was approved by the Senate late last year. Assembly action is expected by the end of March at the latest, the government has said.

In July 2008, the UK government brokered a deal with major ISPs and the music and film industries as part of a light-touch, co-regulatory approach to digital piracy (IPW, Enforcement, 28 July 2008). However, in a 29 January 2009 response [pdf] to input on legislative options to address illicit P2P file-sharing, the government acknowledged that neither its co-regulatory approach nor any other proposed option won widespread support from rights holders, consumers or ISPs.

In an interim “Digital Britain” report published the same day, the government signalled its intent to require ISPs to notify alleged infringers, subject to “reasonable levels of proof from rights holders,” that their conduct is unlawful, and to collect anonymised data on serious repeat infringers to be turned over to rights owners upon receipt of a court order. It apparently ruled out disconnection of serial infringers’ internet subscriptions. The final report is due in June.

As part of the Digital Britain initiative, the UK Intellectual Property Office is seeking feedback on an informal paper on “Developing a Copyright Agenda for the 21st Century” [pdf]. In addition to issues relating to digitisation and the internet, the inquiry covers creators’ rights, rights clearance processes and enforcement matters. A discussion paper is expected early this year, the IPO said.

The European Commission also has toyed with the idea of a graduated response approach to unauthorised file-sharing. However, an April 2008 European Parliament vote urging governments not to allow shut-off of internet access in cases of suspected piracy may have forced EU Information Society and Media Commissioner Viviane Reding to rethink her position (IPW, Enforcement 10 April 2008).

In a speech last November, Reding said she is still working on a future framework for online content. She criticised efforts at the EU and national level to view content issues such as piracy as requiring a “deal” between two camps only. The third camp, consumers, must be part of the equation, she said. She promised to relaunch the ‘Content Online’ debate in 2009.

Australian ISPs, battling a similar push for a “notice and disconnect” regime, are watching European developments closely, Internet Industry Association Chief Executive Peter Coroneos said last year (IPW, Monthly Edition, June 2008).

In December, the Australian government published a draft consultation paper on digital economy future directions [pdf]. Among other issues, the government is considering whether to extend copyright “safe harbours” limiting intermediaries’ liability for infringement activities of their subscribers to other types of online service providers, such as social networking and video-sharing sites. The consultation closes 11 February.

The ISP issue is also in play in the United States but with a network neutrality “wrinkle” that could pop up elsewhere, said Copyright Alliance Executive Director Patrick Ross. One question Congress must deal with in deciding whether service providers should be allowed to manage traffic flow on their networks is whether to protect legal and illegal transmissions, he said. So far, lawmakers favour only the former, he said.

The impact of India’s Information Technology Act 2000 Amendment Act 2006 on intermediary liability, which cleared Parliament in December, will be analysed soon, said Pranesh Prakash of the Centre for Internet & Society. Most cases so far have centred not around copyright but on obscenity, defamation and other issues, he said. But given the increase in copyright-related litigation and enforcement, ISP responsibility for infringement “will soon be a topic of contention,” he said.

Licensing may hold the key to slowing online infringement. But despite ongoing talks among music labels and ISPs in the UK and elsewhere, there is no simple solution in the offing and more governments are mulling regulation (IPW, Copyright Policy, 28 January 2009).

Limitations and Exceptions

Limitations and exceptions to copyright – and, in particular, the issue of access to information by the visually-impaired – was at the top of the agenda at the last meeting of the World Intellectual Property Organisation’s Standing Committee on Copyright and Related Rights (SCCR), WIPO Deputy Director General Michael Keplinger said.

Discussion on the special needs of the visually-impaired with respect to copyright will continue this year, including how to enhance their access to protected works and the cross-border transfer of copies in accessible formats, he told IPW. The visually-impaired community needs effective and prompt solutions to these challenges, particularly regarding access to digital content, he added. The SCCR is expected to meet next on 25-29 May.

Last year, the European Commission launched a debate on limitations and exceptions needed to ease dissemination of knowledge for research, science and education in the digital environment. The comment period on the “Green Paper on Copyright in the Knowledge Economy” [pdf] closed in November.

In January, the European Parliament Legal Affairs Committee responded to the green paper. The European Bureau of Library, Information and Documentation Associations branded the report “unduly biased” toward publishers and asked lawmakers to reject it when it comes up for vote in plenary session in February.

Anti-Counterfeiting Treaty Agreement

Negotiations on international trade standards for tackling large-scale copyright, patent and trademark infringements continue this year, the European Commission said. Current negotiating parties to the Anti-Counterfeiting Trade Agreement (ACTA) are the US, Australia, Canada, the European Union, Japan, Korea, Mexico, Morocco, New Zealand, Singapore and Switzerland.

The proposal has sparked an outcry from public interest groups. “The speed with which it has been rushed through – and the secrecy of the meetings and the provisions is alarming,” said IP Justice Executive Director Robin Gross. ACTA will make routine surveillance of laptops, iPods and other devices in the hope of finding questionable music, videos and other information “a de facto standard for every airport in the world,” she said. The proposal also shifts the costs of enforcing private rights to the public, she said. So far civil society and developing countries have been barred from talks, she added.

But the Commission said there is not yet even a draft text on which negotiators agree. “A number of ‘texts,’ wrongly presented as draft ACTA agreements have been circulated on the web,” it said. The next round of talks could take place in Morocco in early March, it added.

In another trade-related development, a World Trade Organization panel considering a US-China dispute over copyright and customs matters found China in violation of two of its responsibilities under international trade and IP rules and in partial breach of another (IPW, WTO/TRIPS, 26 January 2009). Either side could appeal.

Open Access

Interest in free access to scientific research publications is growing worldwide, commentators said.

Last August, the European Commission, which set aside over €50 billion for research between 2007 and 2013, began pilot-testing a regime to give open access to peer-reviewed scientific journal articles resulting from EU-funded research. The initiative is one of several underway in Europe that experiment with open access and new business models guaranteeing access to publicly funded research results, the Commission said.

Open access will “likely be an issue” in the US as well, said Ross. A National Institutes for Health rule effective last year mandates free access on the NIH website to copyrighted scientific journal articles 12 months after their publication if any of the research was paid for by federal grant, he said.

The only papers posted, however, are ones that have undergone a journal-sponsored peer review and are edited and ready for publication in that subscription journal, Ross said. The works then compete for free against the journals sponsoring them, he said. In response, House Judiciary Committee Chairman John Conyers (Michigan Democrat) introduced the “Fair Copyright in Research Works Act” on in February. The measure bars agencies from requiring researchers to give up their intellectual property rights in works partly, but not totally, paid for by federal grants.

The open access movement is “slowly gaining prominence” in India as university students and faculty mobilise, said Prakash.

Other Issues

Copyright reform is “a very hot issue” in Brazil, said Professor Pedro Paranagua, project lead at the Centre of Technology and Society, Fundacao Getulio Vargas School of Law, in Rio de Janeiro. Pressure from copyright owners, although not necessarily authors, is strong, he said. In addition, artists are deeply divided over Creative Commons licences, and scandals have erupted over mismanagement and unfair royalty distribution by Brazil’s collecting society ECAD, he said.

The Ministry of Culture will introduce copyright reform legislation in coming months and, in January, issued guidelines (in Portuguese) on best practices and needed changes to the Copyright Act, which Paranagua called “one of the most unbalanced in the world.”

The internet is putting “real strains” on collective management of copyright royalties, Keplinger said. WIPO wants to further assess how collecting societies will fare in the digital age, he said.

Another issue on WIPO’s radar is applicable law in online cross-border copyright disputes. And on 10 March, the organisation will hold information meeting, with speakers from the developed and developing worlds, to explain the importance of IP financing, Keplinger said. In addition, the UN Commission on International Trade Law (UNCITRAL) Working Group VI, on security interests, will discuss security interests in intellectual property at its 27 April – 1 May meeting.

And in Australia, the government is discussing its paper on future directions for the digital economy.