Tuesday, April 15, 2008

European policy on ISP responsibility for copyright infringement

In recent weeks there has been increasing discussion regarding the desire for internet service providers to take steps to reduce breaches of copyright law. There are three ways in which major copyright holding corporations seek to involve internet service providers in the pursuit of those who fail to respect their property rights. These include the disclosure of users identities following private investigation of their internet use, a three strikes policy forcing the banning of users after a series of notifications of copyright infringement and an internet wide filtering policy.

Disclosure of users identities
Earlier this year the European Court of Justice ruled that the European Community does not have to disclose the identities of those in breach of copyright law unless a country's national law requires such a disclosure.

The EFF reported: The decision in Promusicae v. Telefonica involved a request made by a Spanish music rightsholder association (Promusicae) to Spain's leading ISP (Telefonica) for personal data about Telefonica subscribers using particular dynamic IP addresses, which Promusicae alleged were engaged in filesharing.

The decision upheld the importance of privacy protections preventing the disclosure of users identities where infringement does not incur a criminal penalty.

Three Strikes & Filtering
Initially France announced its intention to introduce a three strikes policy; a strategy later attracting further attention in the UK and other countries around the world. The European Parliament has also been in the process of discussing and debating the Bono Report on the Cultural Industries. In November 2007 the European Parliament's Committee on Industry, Research and Energy (ITRE), following heavy lobbying from organisations such as the IFPI, tabled an amendment supporting the introduction of internet wide filtering by ISPs.

This sparked widespread public outcry forcing the Parliament to rethink this approach.

Last week further changes were introduced to the report seeking to reverse the adoption of these strategies, instead providing formal recognition of the need to preserve human rights on the internet and to maintain a degree of policy independence:

BBC News reports stated: The amendment called on the EC and its member nations to "avoid adopting measures conflicting with civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness, such as the interruption of internet access."

Two hundred and ninety seven members (out of three hundred and fourteen) of the European Parliament voted to accept these changes. Whilst not having immediate or direct impact on the laws implemented at a National level, it nonetheless represents a recognition of the negative implications of these approaches and overall policy objectives of balancing copyright protection with other fundamental human rights as they relate to the internet.

The blanket filtering of copyright material on the internet posses significant practical, social and creative implications.

The practical implications include the need to provide and maintain expensive infrastructure in an attempt to prevent unlawful access and use of such material. This would result in additional costs for ISPs which would be borne by individual and commercial users of the internet. At best, the flow on effect would be one of performance degradation, with some copyright material still likely to be accessed regardless.

The social issues are also immense. Essentially such a move would enable private interests to dictate what members of the public could access, with significant implications for free speech, cultural diversity and the future development of technology. Other arguments include the favouritism of large media corporations over that of independent producers, and the artificial continuance of business models and practices that are simply no longer relevant to the digital environment. Fair use/fair dealing rights are also likely to suffer from the adoption of a policy of this nature.

For ISPs there also remains significant questions as to their independence and liabiltiy as communications carriers. There has been a long held belief across many jurisdictions that it is for the overall benefit of the public that the internet remains an open and accesible network.

Similarly, the social costs of a three strikes policy include the restriction of internet access to those most likely to need and benefit from it – children and students. I have posted on the problems associated with this strategy in the past.

Let’s hope that these developments signify the recognition of competing interests in this space and a determination not to automatically accept the arguments offered by powerful corporations.

EFF, Music Industry Pressures EU Politicians for Filtered Internet (7 December 2007) <http://www.eff.org/deeplinks/2007/12/music-industry-europe-filter-pressure> at 15 April 2008

ZeroPaid, European Parliament Rejects Plans to Disconnect File Sharers (11 April 2008) <http://www.zeropaid.com/news/9398/European+Parliament+Rejects+Plan+to+Disconnect+File-Sharers> at 13 April 2008

BBC News, Europe rejects anti-piracy plans (11 April 2008) <http://news.bbc.co.uk/2/hi/technology/7342135.stm> at 13 April 2008

TechDirt, European Parliament Rejects IFPI Plan To Make ISPs Copyright Cops (10 April 2008) <http://www.techdirt.com/articles/20080410/165146815.shtml> at 13 April 2008

ZeroPaid, European Amendment to Stop P2p (8 April 2008) <http://www.zeropaid.com/news/9391/European+Amendment+to+Stop+P2P+Disconnections> at 8 April 2008

EFF Deeplinks, EU Politicians Strikes Back Against Three Strikes (7 April 2008) <http://www.eff.org/deeplinks/2008/04/eu-politicians-strikes-back-against-three-strikes> at 8 April 2008

EFFector, EU Law Does Not Require ISP to Hand Over Customers' Identity Data in Alleged Filesharing Case (6 February 2008) Vol. 21, No. 04 <http://www.eff.org/deeplinks/2008/01/eu-law-does-not-require> at 7 February 2008

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