The war against online copyright infringement has been fought on a number of different fronts – via litigation against the P2P software providers who enabled it, the end users who engaged in it, and, most recently, against the ISPs who provide the infrastructure that permits the data to flow. This last strategy has seen powerful content interests forcefully lobbying governments and ISPs worldwide to adopt so-called “graduated responses”. The message has been that content owners shouldn’t be responsible for policing infringement.
It has been more than three years since the first countries began implementing 'graduated responses', requiring ISPs to take a range of measures to police their users' copyright infringements. Graduated responses now exist in a range of forms in seven jurisdictions. Rightholders describe them as 'successful' and 'effective' and are agitating for their further international rollout. But what is the evidence in support of these claims?
After providing a detailed snapshot of the structure and application of graduated response schemes in France, New Zealand, Taiwan, South Korea, the UK, Ireland and the US, the paper synthesizes the available evidence regarding the efficacy of the various arrangements, and then evaluates the extent to which they are actually achieving the copyright law’s aims. Of course, as the work acknowledges, it is impossible to identify any one unifying target or rationale. Accordingly, the paper evaluates the extent to which the global graduated response is helping to achieve any of several distinct aims that are often put forward to justify the grant and expansion of copyright (while being agnostic as to which, if any, should be preferred). Thus, it asks:
1. To what extent does graduated response reduce infringement?
2. To what extent does graduated response maximize authorized uses?
3. To what extent does graduated response promote learning and culture by encouraging the creation and dissemination of a wide variety of creative materials?
The analysis demonstrates that, judged against these measures, there is little to no evidence that that graduated responses are either 'successful' or 'effective'. The analysis casts into doubt the case for their future international rollout and suggests that existing schemes should be reconsidered.
Author: Rebecca Giblin, Monash University - Faculty of Law.