File sharing is a fast-developing global phenomenon, and the difficulties of protecting copyright online cannot be ignored.
Copyright infringement is a worldwide issue, and particularly so online. In its 2009 report, the International Federation of Phonographic Industry (IFPI) claims that ‘95 per cent of music downloads are unauthorised, with no payment to artists and producers’. While the use of file sharing, for example, involving the use of peer-to-peer (P2P) networks to download and share music is particularly popular, other file types such as films, television shows and video are also shared in the same way. Copyright owners argue that this illegal consumption of their products is directly responsible for a decline in sales. The last few years have seen high-profile coverage of cases where the international music industry has taken measures to discourage music filesharing by suing individuals for copyright infringement – cases that the music industry has won.
But while individual battles continue to be fought, could it be argued that companies providing individuals with access to the internet should be tasked with policing the web to address copyright infringement problems? Or should internet service providers (ISPs) be used as instruments to help enforce the law in each jurisdiction? Does the copyright infringement buck stop with the ISP? And how can the law help?
Lisa Peets, Head of European IP at Covington & Burling LLP, London, highlights that within the EU, the e-Commerce Directive remains the primary tool by which ‘the broad rules relating to ISP liability in Europe’ are governed. She explains that, ‘while the rules are fairly detailed, at a very general level, the Directive provides that ISPs are eligible for a “safe harbour” from certain types of liability for copyright infringements occurring on their networks where they act expeditiously to remove those infringements when they become aware of them’. While EU Member States have had to implement the legislation through their national laws, some have chosen to adopt more expansive regimes which go beyond the provisions contained within the EU Directive, and impact more heavily on ISPs.
In the UK, for example, the Government’s digital economy bill encompasses the wider digital spectrum. The bill seeks to confer greater powers on Ofcom, the UK’s communications regulator (which operates under the Communications Act 2003 and exists to regulate the UK’s broadcasting, telecommunications and wireless communications sectors), but perhaps one of the more controversial aspects of the bill is the inclusion of provisions to impose obligations on ISPs to ‘reduce online copyright infringement’, the power of ‘the Secretary of State to amend copyright legislation to the same end’ and, in particular, to put in place a system whereby persistent copyright breaches online could result in disconnection from the internet. Peets highlights that other EU Member States, including France, have adopted similar approaches which have come to be known as ‘three strikes’ regimes, involving sending out notifications to subscribers of their internet service who have allegedly used the ISP’s networks to infringe copyright. Repeat offenders have ended up having their network access terminated or restricted.
But not all EU Member States have adopted the same approach. Gonzalo Ulloa Suelves, Senior Vice Chair of the IBA’s IP and Entertainment Law Committee and Head of IP & Technology at Gómez-Acebo & Pombo Abogados SLP, Madrid, highlights the existence of a number of local IP laws including the Spanish Copyright Act (Texto Refundido de La Ley de Propiedad Intelectual), the Spanish E-commerce Act (Ley 34/2002 de 11 de junio, de Servicios de Sociedad de la Información y de Comercio Electrónico) and Directive 2006/24/EC of the European Parliament and of the Council (Directive on the retention of data generated or processed in connection with the provision of publicly available electronic communications services). He points out, however, that as witnessed in the Productores de Música de España (Promusicae) v Telefónica de España case (C-275/06, 28 January 2006), ‘ISPs are not very much involved in the prosecution of copyright infringements in Spain. According to Instruction 1/2006 [delivered by the Chief Public Prosecutor in relation to intellectual copyright infringements], copyright infringements committed by users through P2P networks cannot be deemed crimes or offences and, therefore, those infringements should only be judged in a civil proceeding’.
Ulloa Suelves observes that in view of Instruction 1/2006 and Directive 2006/24/EC, which he states ‘only require ISPs to provide Internet Protocols (IPs) used by potential infringers within a criminal judicial proceeding originated by severe offences’, it would be impossible for prosecution to occur in cases of online copyright infringements.
‘EU Member States, including France, have adopted similar approaches which have come to be known as 'three strikes' regimes’
Covington & Burling LLP
Retention of data
Ulloa Suelves highlights that more needs to be done to expand the role of ISPs in the protection of IP through ‘the prosecution of copyright infringements on the web’, so that there is a more effective legal process through which copyright can be defended. He points out that while some legal attempts are being made – such as a new law relating to cases where web pages are used to make links available to works protected by copyright, enabling prosecution and the closing down of such e-linking web pages – existing legislation could be improved. Such improvements, he believes, should be achieved by making clear definitions available of what constitutes an online copyright infringement, and containing this definition within the Copyright Act and the Criminal Code. He adds: ‘it is necessary to derogate Instruction 1/2006 and to amend the “Act on the retention of data” to require ISPs to facilitate IPs to judges within any type of proceeding (civil or criminal).’
In Peets’ view, the EU approach – via the e-Commerce Directive – has been one of balance; striking a balance between the interests of the main parties: content owners and ISPs. Thus, while ISPs must behave responsibly by removing content that infringes copyright law as and when they become aware of it, they will, in return, be protected from liability: ‘the Directive also expressly provides that ISPs have no duty to monitor for illegal activities occurring on their networks. In other words, there is no obligation on ISPs to “police” their networks.’
Policing is a specific area that provides a major stumbling block for providers of internet access. According to Peets, many rights owners would welcome intervention on the part of ISPs to help tackle certain types of IP infringement, but for their part, ISPs respond by saying that it is ‘virtually impossible for them to monitor the entirety of the internet [and that] the obligation to police their networks would thus be untenable’.
Search for solutions
According to the IFPI, ISP cooperation remains the key to solving the problem of online copyright infringement. The organisation points out that, in 2008, France and the UK led the way by looking to ISPs to help bring piracy on their networks under control through the use of a ‘graduated response system, whereby ISPs write to persistent copyright abusers to educate them and warn them about their actions’, and only applying sanctions – of loss of internet access of between one and twelve months – as a last resort. According to the IFPI, research suggests that the graduated response scheme would be effective because seven out of ten UK music consumers claimed that they would stop illegally downloading if their ISP told them to do so. Following both agreed and proposed changes to the law, it would be difficult to measure with any accuracy the success of the ‘graduated’ scheme. However, Ulloa points out that an initiative to establish agreements between ISPs and content providers involving the provision of internet content that is both attractive to customers and falls within the parameters of IP law could certainly bear fruit.
Peets makes the point that ‘there is no “silver bullet” or single entity that can prevent or solve online infringements’. Rather, she indicates, a multifaceted approach which draws together a workable legal framework, voluntary measures by stakeholders and education for users about the importance of respecting IP, plus ‘robust enforcement measures brought against those who infringe’, seems the most promising means to address issues of online piracy.
Both Peets and Ulloa are agreed that through subscription packages, downloading and streaming activities the technology sector is providing new and exciting ways to distribute and share online content, thus the challenges of IP copyright online are likely to continue to figure. But while Peets gives voice to the fact that there will be an ongoing struggle between the parties involved – the owners, ISPs, and policy-makers – as they struggle to find a solution that addresses their competing interests, Ulloa remains resolute: ‘file sharing and downloading or streaming of files is the future of the content industry. Therefore, we need to make it legal. Illegal file sharing and downloading need to be prosecuted, and legal and attractive initiatives for the digital distribution of works strongly promoted.’
Debbie Legall is a freelance journalist. She can be contacted by e-mail at firstname.lastname@example.org.
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