International Response – “Three Strikes” System

In recognition of the inability of traditional mechanisms of copyright enforcement to address peer-to-peer copyright infringement, several countries, including France, the UK and New Zealand have implemented (or have attempted to implement) a “three strikes”, or graduated response, system.  Essentially, the three strikes system shifts some of the onus of the enforcement of copyright onto internet service providers (“ISPs”).

How does a three strikes system work?

The New Zealand model as an example[21]

Under this system, at the instigation of copyright owners, ISPs must issue infringement notices to alleged copyright infringers.  ISPS must then keep a log of any further evidence of infringement.  The New Zealand Government says that it hopes that the issue of this first “detection” notice will be enough to deter the majority of infringers.

Upon receiving notification from an ISP that an account holder has received three notices, copyright owners may apply to the Copyright Tribunal for compensation of up to $NZ15,000 and/or make an application to a District Court requiring the ISP to suspend the account holder’s internet access for up to six months.

Under the newly-inserted proposed section 122MA of the New Zealand Act, the onus of proof is effectively reversed, such that a copyright owner can simply issue an infringement notice alleging that someone has infringed their copyright and the Copyright Tribunal may accept that as the truth.  This is the same kind of provision which was struck down as unconstitutional in France and, understandably, it has already created a lot of controversy.

A New Zealand Select Committee has completed its review of the Bill and has advised that suspension of internet accounts should only be available as a last resort.

New Zealand Labour ICT spokesperson Clare Curran has said that it was extremely important to have disconnection removed as a copyright remedy, saying it was “disproportionate”, especially as internet access is effectively essential for businesses and families.[22]

ISPs must also retain information on the use of the internet by each account holder for 40 days, and must retain information about infringements for 12 months.

Under such schemes, “safe harbour” provisions will only protect ISPs from liability for file sharing infringements occurring over their networks if they comply with their obligations.

Judicial recognition of a three strikes system in Australia?

Whilst the three strikes system is not specifically referenced in the Full Court of the Federal Court’s decision in Roadshow the system proposed by Justice Emmett (see above) arguably draws heavily on similar principles, and indicates an increasing judicial sympathy for the principles on which the three strikes policy is based. In particular, the suggestion of a graduated response by ISPs towards repeat infringers bears the hallmarks of the three strike system.

Policy implications of a three strikes system

The three strikes system is highly controversial[23] and has consistently been opposed by interest groups such as the IIA and ISPs (such as TalkTalk, the second largest ISP in the UK).

Consider the experience of France in passing the HADOPI legislation.  The bill was passed on 13 May 2009, contested on 17 May 2009 and struck down for being unconstitutional by the Constitutional Council of France on 10 June 2009.

The Council found that the HADOPI Act violated the 1789 Declaration of the Rights of Man and of the Citizen, as the presumption of innocence was violated (the Council held that judicial review would be required before internet access could be severed).

The Constitutional Council of France also raised human rights concerns which are yet to be fully explored.  In this regard, a growing number of advocates and interested parties are querying whether the right to internet access is becoming a fundamental human right.

For instance, commentary surrounding the NBN has emphasized the fundamental importance of internet access.  In light of this, the question arises as to whether severance of a person’s internet account is a proportionate response to copyright infringement.  Note, for instance, the Australian Minister, Senator Conroy’s frequent references to the internet as being as important as electricity.[24] 

Certainly, it is strongly arguable that disabling internet access is not a proportionate response when one considers the impact that internet disconnection may have on:

  • students (where many resources are online or where studying by correspondence);
  • the elderly or disabled (who use the internet for services such as online grocery shopping and banking);
  • medical assistance, which is touted as one of the key social benefits of the NBN;
  • social services delivered over the internet; and
  • basic communications services, including VoIP (where a household may no longer have a traditional fixed line service).

The issue is further complicated in cases of shared living or families where the entire household is disconnected, so it may not only be the person who commits the copyright infringement who is punished.

Tim Berners-Lee, professor at Massachusetts Institute of Technology, expresses the problem thus:

“If a French family can be forcibly disconnected from the internet by law for a year because one of their children downloaded something that some company asserts that they should not have downloaded, without trial – I think that’s a kind of inappropriate punishment.”

“I’d like to go on using the internet.  If it gets cut off, or for some reason things go wrong, in some cases, for me, my social life would disintegrate, for other people it may be access to medical information.”[25]

Finally, the three strikes system does not sit comfortably with ISPs.  The IIA (on behalf of its ISP constituents) opines:

“As a matter of principle, an intermediary who is acting as a mere conduit (i.e. doing nothing more than providing the means of communication or a corporate network – or by extension a technology, search, publishing or sale platform such as an auction site, or educational institution), should not be liable for the acts of its users where those users abuse facilities to breach third party rights.  This is particularly the case in a user generated content world.”[26]

It should be noted that the IIA’s adoption of this position is consistent with the approach taken by the High Court.

iiNet in its white paper ‘Encouraging legitimate use of Online Content: An iiNet view’ described the ‘Hollywood solution’ of content owners investigating and notifying ISPs of infringement and requiring action from those ISP’s as ‘unattractive and unsatisfactory’ to ISPs, particularly as the approach does not allow for independent verification and assessment of claims of infringement.[27]  iiNet further assert that the approach:

  • generates cost but no benefit to ISPs
  • doesn’t match the real world
  • pits ISPs against their customers
  • potentially penalizes people who have done no wrong
  • is easily bypassed
  • provides no appeal process
  • finds consumers guilty without cogent and unequivocal evidence;[28]

Fair use and fair dealing

Meanwhile, changing social norms, whilst perhaps resulting in a consumer expectation that material on the internet should in some sense be free, have also led to rise of user-generated content.  This has led to pressure to change copyright laws to protect user-generated content.  Here, the general idea is that users should be allowed to use copyright works so long as this does not result in economic disadvantage for the copyright owner.

This matter was examined by the Commonwealth Government in the Attorney-General’s Issue Paper (2005) Fair use and other copyright exceptions: an examination of fair use, fair dealing and other exceptions in the Digital Age.

Whilst this issue is beyond the scope of this paper (which is focussed on infringement of copyright materials which leads to direct economic disadvantage to the copyright owner), it is an important element in the overall debate about the boundaries of copyright protection in the digital age.

Recently, British Prime Minister David Cameron announced Britain’s intellectual property laws are to be reviewed to “make them fit for the internet age”.[29]

Mr Cameron said the law could be relaxed to allow greater use of copyright material without the owner’s permission, a move which appears to be at odds with the UK’s Digital Economy Bill 2010 and is likely to pit internet freedom campaigners against the music and film industries.

This new direction by the British Government also appears to be motivated in part by a desire to recapture some of the enormous economic opportunities which come with attracting the business of digital giants such as Facebook and Google.  In announcing this new direction, Mr Cameron said the founders of Google had told the government that they could not have started their company in Britain, saying:

“The service they provide depends on taking a snapshot of all the content on the internet at any one time and they feel our copyright system is not as friendly to this sort of innovation as it is in the United States.”

Over there, they have what are called ‘fair-use’ provisions, which some people believe gives companies more breathing space to create new products and services.

So I can announce today that we are reviewing our IP laws, to see if we can make them fit for the internet age.  I want to encourage the sort of creative innovation that exists in America.”

Anti-Counterfeiting Trade Agreement

Another element to the international debate is the multi-lateral Anti-Counterfeiting Trade Agreement (“ACTA”), signed (but not yet ratified) by Australia, United States, Australia, Canada, Japan, Morocco, New Zealand, Singapore, and South Korea and the European Union and 22 member states of the EU.

The early (leaked) ACTA draft(s) indicated that there was pressure to include provisions enabling copyright owner to apply for an injunction where “services are used by a third party to infringe an intellectual property right”.  This would have casts a broad net and would potentially have caught all kinds of intermediaries (including ISPs and universities).

The IIA chimed in, in opposition to such a move:

“Most troubling of all, given the way trade agreements are struck, is the prospect of Australia singing on to a concluded ACTA text without the internet industry and the public having the benefit of scrutiny, discussion and debate of the agreement.  Given the potentially far reaching ramifications for these stakeholders, a far more transparent and accountable process is both warranted and necessary.”[30]

In the final text of ACTA, there is no mention of three strikes system (although, with the removal of the three strikes system, comes the removal of the safe harbour provisions for ISPs).  However, the ACTA has attracted significant criticism for what some consider an ‘overbroad’ approach to preventing copyright infringement.  In particular, art 27 of the agreement requires cooperation between ISPs and rights-holders in a way that may involve these actors exercising policing powers and imposing sanctions, without the involvement of public authorities.[31]  Enforcement procedures are required to be extended to “means of widespread distribution for infringing purposes”[32] which has been stated to possibly justify “the implementation of provisions indirectly criminalizing blogging platforms, P2P networks, free software, and other technologies that contribute to dissemination of culture and knowledge on the Internet.”[33]  Provisions that may lead to restrictions imposed on internet communications for the sake of preventing imminent copyright violations have also been singled out for criticism due to their potential to stifle freedom of communications.[34]

Pages: 1 2 3