UK response to file-sharing is still in trouble -- but should it be?

Some folk never could
understand the fuss
about file-sharing ...

Since so many big and exciting things have happened since the passage in the United Kingdom of the Digital Economy Act with its provisions on file-sharing, that one might think that the Act has been quietly forgotten and that the dust is starting to settle.  However, this is clearly not the case.  In this guest post, the IPKat's friend Fredericka Argent takes a look at recent developments involving the Act and concludes that it is likely to remain at the eipcentre of debate both in the UK and beyond for some time to come.  Says Fredericka:

"Oh DEA... 

Two recent news items on the United Kingdom's Digital Economy Act 2010 (DEA) have questioned the Act’s legitimacy and put its very existence under strain: 

1.  Appeal against the High Court judgment rejecting judicial review of the DEA 

In April 2011, Mr Justice Kenneth Parker ruled against BT and TalkTalk in their application for judicial review of the DEA [noted by the IPKat here]. The applicants challenged various parts of the Act which they considered contrary to EU law, such as the E-Commerce Directive. They argued that the DEA infringes users’ rights and freedoms and that the statute was rushed through parliament with insufficient scrutiny. 

In particular, BT and TalkTalk took issue with the DEA’s ‘graduated response’ system, which asks Internet Service Providers (ISPs) to keep anonymous records on and send notices to their subscribers who have committed multiple copyright infringements. Rightsholders, upon obtaining a court order, would then be permitted to sue those subscribers for copyright infringement and impose ‘technical obligations’ on ISPs to limit their Internet access e.g. through bandwidth-capping or temporary suspension. This measure will be underpinned by an Ofcom code of practice, yet to be completed [you can read about Ofcom's first thoughts and initial consultation here]. 

Deciding in the respondents’ favour, the judge held that “from the point of view of both copyright owner and subscriber, the DEA represents a more efficient, focused and fair system than the current arrangements” (para 228). 

On 27 May 2011, BT and TalkTalk released a joint statement that they are seeking leave to appeal to the Court of Appeal against the High Court ruling on the DEA: 

“The two companies have chosen to seek an appeal on four of the five grounds addressed in the initial High Court case. These relate to the EU’s Technical Standards Directive, the Authorisation Directive, the E-Commerce Directive and the Privacy and Electronic Communications Directive. BT and TalkTalk believe the DEA is not consistent with these directives.” 

They have dropped the challenge on proportionality, deferring to the Court’s view that the DEA could not be considered a disproportionate response to file-sharing prior to the publication of Ofcom’s code of practice. 

If the ISPs are successful in the Court of Appeal, it would serve to absolve Internet intermediaries of responsibility for illegitimate copyright content communicated across their networks by users. Further, rightsholders would be required to go back to the drawing board to devise alternative means of legally enforcing the protection of their copyright against pirates.  A win by BT and TalkTalk would undoubtedly also create hurdles for the legal fight against counterfeiting more generally. 

2. The DEA may breach international human rights law according to a UN Report 

Frank La Rue, the Special Rapporteur for the UN’s Human Rights Council has stated that Internet access is a human right, and that any restriction on that right, except in limited circumstances, constitutes a violation of international law: 

“the Internet has become a key means by which individuals can exercise their right to freedom of opinion and expression, as guaranteed by article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.” 

The Internet is described as a tool for the development of society, enabling social, economic and political debate across borders. The report raises concerns about increased censorship and restrictions on Internet access, for example through blocking content and the criminalisation of legitimate expression, creating a ‘chilling effect’. 

The report examines certain types of restrictions to freedom of speech on the Internet, including the ‘imposition of intermediary liability’ on ISPs following the adoption of laws that require them to filter, remove or block content generated by users which is deemed illegal. The Rapporteur is worried that intermediaries, as private entities and gatekeepers to the Internet, are determining questions of legality of users’ content without the need to be transparent or accountable for their decisions, and without considering the human rights of end users (this is not true of all nations: for example, in the UK, under section 97a of the Copyright Design and Patents Act 1988, copyright owners must obtain an injunction from a court against intermediary service providers in order to enforce their rights). 

The report mainly focuses on those governments that have used Internet restrictions to stifle legitimate free speech (for example, the cutting off of Internet access by various Middle Eastern states during the recent Arab Spring uprisings or the censorship of content in China). However, on page 14, the DEA is used as an example of legislation that causes the UN to be ‘alarmed’, due to its potential to lead to the disconnection of users from the Internet for violation of intellectual property rights via the graduated response system. Other legislation that is mentioned in the same vein is France’s HADOPI law and the Anti-Counterfeiting Trade Agreement. The report concludes: 

“The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.” 

States are urged by the report to repeal or amend existing IP laws permitting users to be disconnected from the Internet.  

My assessment

The report makes bold statements on the protection of fundamental rights in the digital age, including in the context of cybercrime, data protection, personal privacy and the ‘digital divide’ between the developing and developed world. In those countries where online freedom of speech is restricted on political grounds, the UN’s concerns may be valid. However, on the issue of Internet disconnection for violations of IP rights, sweeping generalisations are made, without any further analysis or evidence, that this legislation is necessarily bad because it may lead to Internet users’ disconnection from the Internet. There is no acknowledgment that 

(i) violations of IP rights are against the law, and therefore that appropriate punishments are warranted; 

(ii) measures leading to temporary suspension from the Internet may be a proportionate attempt to stymie the widespread online piracy that has led to severe job losses and created barriers to innovation; 

(iii) the DEA only proposes to cut off a user’s Internet access as a last resort after that person has repeatedly flouted copyright law despite multiple warnings or 

(iv) under international law, rightsholders have a human right to property and a right to an effective legal remedy following infringement of the law. 

The UN makes recommendations without attempting to balance the competing rights of the various stakeholders (copyright owners, intermediary service providers and end users). As such, the UN’s approach runs contrary to recent jurisprudence [C-275/06 Promusicae v Telefonica], literature from the US [Obama’s International Strategy for Cyberspace] and the European Commission [Strategy on a Single Market for Intellectual Property Rights]. Finally, the report fails to suggest any alternative approaches to tackling online infringement of IP rights. It seems a shame that a document that is clearly intended to identify genuine global concerns about freedom of expression and related human rights in the online environment has taken such a one-sided approach, arbitrarily drawing a connection between unjustifiable State censorship on the Internet and the legitimate protection of intellectual property in the face of prolific online piracy".

The IPKat would be curious to know what readers think, particularly in light of the forthcoming debate on the whys and wherefores of copyright law. Do let us know!