The ‘graduated response’ strategy to stopping illegal online filesharing has been replicated in countries around the world from South Korea to New Zealand, France and the UK.
Whilst the sanctions and legal process differ, the general ‘three strikes or you’re out’ approach works by sending warnings to customers about copyright infringement allegations against them, telling them to stop or face the consequences.
These laws are often controversial, and are frequently seen as the result of extensive government lobbying by the film and music industry to protect their out-dated business models.
Nevertheless, the proponents argue they lose vast sums of money from piracy which diminishes the economic growth of creative industries, thus making such laws necessary.
The controversy often lies in the draconian and disproportionate punishments, which go far beyond a casual slap on the wrist.
In New Zealand, for example, a presumption of guilt lies on the alleged infringer, and if they can’t disprove the charges, they can face fines up to NZ $15,000 or a maximum six month internet disconnection for repeat infringement.
In France, the law allows a judge to order internet disconnection for up to one year, or alternatively a €1500 fine.
It is this well-established French “Hadopi” system that three years on has now been called into question this week by the French Culture Minister, Aurélie Filippetti.
Aurélie Filippetti condemns the regulator as a waste of money, citing its failure to develop alternative legal download services, and questions the proportionality of disconnecting repeat offenders from the internet.
It costs a whopping €12 million per year for its 60 officers who send around 1 million emails annually.
Although nobody has actually been disconnected under the law, 314 cases have gone through their warnings and then referred for prosecution.
Hadopi is currently under broader review, and its future and funding are uncertain as Filippetti feels its utility has not been proven.
So, what warning might the Hadopi experience provide for other younger graduated response policies, particularly for the UK?
The UK government has recently restarted the push for enforcement of the Digital Economy Act (DEA). Whilst it was rushed onto the statute books back in 2010, enforcement has repeatedly been postponed.
The new text states that as of 2014 copyright owners who identify sources of illegal downloading can report this information to the relevant ISPs.
From there, the ISP tracks down the infringing subscriber and posts them notification letters warning them to stop illegally downloading content.
If the subscriber ignores the warnings and receives three of these letters within 12 months, their details are added to an anonymised “Copyright Infringement List”.
Once on this list, copyright owners can then seek a court order demanding the ISP hand over the information needed to begin legal action against the infringer.
Whilst the threat of litigation is clearly a pretty big incentive to stop illegally downloading, punishment without changing the underlying reason for such behaviour can only do so much.
As noted above, Hadopi has been criticised for not developing legal alternatives. The Ofcom Code however pushes for directing of users to legal, licensed services, and stresses the need for development of attractive online content services.
This reflects recommendations for reform made in last year’s UK Government-commissioned “Digital Opportunity: A review of Intellectual Property and Growth” report, where Professor Ian Hargreaves noted, “Emphasising enforcement as an alternative to improved digital licensing and modernised copyright law is the wrong approach. Action is needed on all fronts. ”
He continued, “The role for Government is to facilitate the provision of readily available legitimate digital content, to reshape copyright law where it is out of touch and to support this with effective measures to educate consumers and to enforce the law.”
It seems that heavy-handed enforcement and pointing infringers to a few overpriced legal content access services won’t be enough to truly address piracy. The content providers who only rely on the big stick of demonising and chasing illegal downloaders need to do more to find their elusive carrot.
Until there are enough innovative, responsive business models allowing quality, low cost access to legal content, (such as licensed streaming) it is difficult to see how copyright owners can realistically compete with the alternative of free, on demand pirated content.