Stop Treating Symptoms And Start Curing Diseases: The End Of Graduated Response

By Rene Summer

This post originally appeared on The Networked Society Blog, here.

The debate about copyright enforcement – whether rights holders’ unshakable conviction in the effectiveness of graduated responses is rational – has reached a watershed. This is not to say that there aren’t any ongoing, well-funded lobby campaigns around the world aimed at convincing policy makers to revert to the practice of some form of graduated response. Nor am I saying that there aren’t any other important considerations, such as the rights of citizens and intermediaries, to be weighted in when debating copyright enforcement, lessening the case for such practices. Rather, what I am saying is that arguing for graduated responses can no longer be done on efficiency grounds without at the same time being intellectually dishonest.

To prove my point, the scholar, Rebecca Giblin in her paper, “Evaluating Graduated Response” reached the following conclusions:

• “There is no evidence demonstrating a causal connection between graduated response and reduced infringement. If “effectiveness” means reducing infringement, then it is not effective”
• “There is no convincing proof that any variety of graduated response increases the size of the legitimate market. If “effectiveness” means increasing the market, then it is not effective.”
• “Do graduated responses encourage the widest possible production and dissemination of a variety of cultural content? Some graduated responses might have an impact on this. Overwhelmingly however, graduated responses do very little to actively require or even encourage beneficiaries to make more content than they otherwise would, or to distribute it more widely.”
• “As demonstrated, a number of schemes disproportionately incentivize the creation and dissemination of “Big Content” over independent and smaller-budgeted forms of creation.”

Ericsson has long argued that illegal access to content is mostly a symptom of a problem, not the root cause of it. The root cause being the inadequate availability of lawful, timely, affordable, competitively-priced and wide-ranging choice of digital content. This is fundamentally a market-supply failure.

Now that the efficiency argument is lost, one can conclude that the only rational explanation left for advancing enforcement policies must be about something else.  And that other thing has been addressed by another scholar, Ruth Towse who offers a rational explanation for irrational behavior:

“Economists have long had concerns that copyright has a moral hazard effect on incumbent firms, including those in the creative industries, by encouraging them to rely on enforcement of the law rather than adopt new technologies and business models to deal with new technologies.”

This reliance on enforcement to protect old technologies (read physical distribution) and old business models is the root cause of the market-supply failure problem. It results in insufficient access to lawful digital content and its symptoms are illegal access. The causation works even the other way around increasing availability of lawful digital content also leads to decreased frequency in accessing illegal content.

So from now on policy makers can be assured that the creative sky is not falling, nor is there a need for an inefficient solution that even more adds to the problem by maintaining the status quo of a digital supply failure.

How about we for a change address the root cause and cure the problem once in for all and make copyright fit for the digital age?

Rene Summer is Director of Government and Industry Relations. He is responsible for policy, formulation and promotion research in the areas of telecom regulation, TV-broadcast regulation, media regulation, copyright, advertising, state aid and consumer privacy.