WIPO Panel Weighs Role Of Internet Intermediaries In Online Copyright Infringement

The role and responsibility of internet intermediaries in the protection of copyright is under debate in several policy fora and often brings up issues such as privacy, access to knowledge, and freedom of expression. A panel was organised last week at the World Intellectual Property Organization to explore the viewpoints of several but not all stakeholders on this issue.

The quest for an effective response to copyright infringement on the internet is a difficult one to address and several legislations, such as in France, are involving internet intermediaries in the surveillance of internet users, and the blocking of content, or access.

The discussion was held on 22 June, as a side event to the 22nd session of the WIPO Standing Committee on Copyright and Related Rights. It was organised jointly by WIPO and the Internet Society.

According to Lilian Edwards, professor of e-governance at the University of Strathclyde, Glasgow, United Kingdom, online intermediaries are key to the internet economy, including new internet intermediaries providing new functionalities such as search, aggregation, and social networking.

The “takedown notice” solution was seen as a good solution for infringing content, she said, until peer-to-peer (P2P) sharing since sites did not physically host the infringing content anymore. This situation led to alternative strategies, such as suing users, torrent sites, suing internet service providers (ISPs) to block torrent sites, and control access of users to infringing content, he said.

Graduated Response, Disproportionate Sanctions

Another response was what is known as “the graduated response”, in which ISPs are asked or required to identify users from IP addresses harvested by rights holders, pass warnings to identified filesharers, and impose sanctions such as traffic slowing, restricted access, or disconnection.

Advantages of the graduated response, or “three-strikes-and-you’re-out” approach have been described as been quick and cheap for industries, being a deterrent because of the threat of being caught, and having an educational purpose since the user gets several warnings before being sanctioned, according to Edwards.

Problems have been noticed, however, such as due process, harvesting IP addresses and matching them with ISP subscribers can be error-prone, and establishing a collective punishment as an IP address only identifies the subscriber and not the actual file-sharer.

The graduated response also poses fundamental rights such as privacy, freedom of expression, and proportionality of sanction. The presentation of Edwards can be downloaded here. She also wrote a report available here [pdf].

Solutions imposing fewer costs on users and respecting the public interest should be adopted first, she said, and empirically monitored to see if they prove sufficient. She also advised that the international community discuss legal steps that should be taken to set up new business models for monetising digital content.

Marie-Françoise Marais, president of the Haute Autorité pour la diffusion des œuvres et la protection des droits sur Internet, commonly known as HADOPI, said that according to the French legislation, which is a graduated response, ISPs are involved in the fight against infringement. She described the graduated response procedure and said that the main focus of the system for the moment was educational and based on a dialogue between the identified infringer and HADOPI.

The goal of HADOPI is to increase public awareness, responsibility, she said, adding that about half of the people that were notified of their infringing activities had turned to legal downloading. She dismissed the issue of errors saying that this is a very rare occurrence. Marais also said that the maximum penalty for an infringer was a fine of €1500 and a suspension of internet access up to a month. She also added that HADOPI remained open to any other efficient system that would prevent infringement of copyright on internet.

Audiovisual Industry View; New Spanish Law

For Motion Picture Association Vice President and General Counsel Ted Shapiro, the most effective ways to confront infringement are legal alternatives, consumer education and outreach. Legal actions are also needed, he said, which need the cooperation of ISPs. But, “our experience has been that it is generally achieved only through litigation, particularly in Europe,” he said.

The focus of the Motion Picture Association enforcement effort is on websites that structurally infringe copyright, making substantial profits, inducing others to infringement and providing false contact data to avoid prosecution, Shapiro said.

For Pranesh Prakash, programme manager at the India-based Center for Internet and Society, attacking ISPs is like “shooting the messenger.” If ISPs do not encourage infringement or control editorial content, they should not be held liable, he said. Would a library be held responsible for a book that is placed on a shelf by an individual without the library’s encouragement? he asked. Infringement is easier on internet, but so is the search for the infringers, he added.

A new amendment in Spain to fight online copyright infringement was presented by Carlos Guervos, head of the copyright office in Madrid. He said the legal background of this law is very different from HADOPI. An administrative authority will be created but it will not have an independent status and will be part of the undersecretary of culture.

The process will only be triggered if there is a complaint, he said, and rights holders must initiate the procedure. The goal is to eliminate infringing content or ask ISPs to block access in Spain to infringing websites, he said.

The procedure will be very quick, with a timeframe of 24-48 hours, which will guarantee the effectiveness of the procedure, he said. The process will respect fundamental freedom and constitutional guarantees, he said. A judge will be responsible for closure of a website or removal of content, he added, and the process is subject to appeal procedure.

The bill was passed in January 2011, after a lively public debate. According to civil society, like “Cultura Geek” in Spain, the law has been criticised for endangering freedom of expression, the alleged influence of United States audiovisual lobby on the law, the lack of clarity of the limits of the law, and the establishment of a blacklist of infringers.

The law published in the official journal in March (in Spanish) has given way to civil protest and calls for disobedience, according to El Mundo newspaper (in Spanish), which also published a story saying that the law impacts users, not only ISPs. http://www.elmundo.es/elmundo/2011/03/18/navegante/1300467364.html (in Spanish) It was also alleged by some to have been strongly influenced by United States audiovisual industry lobbies.

A member of the audience at WIPO commented on the fact that no internet intermediaries or library representatives were present on the panel.