My report for WIPO on filesharing and intermediaries

Briefly, WIPO has just released two studies on copyright, intermediaries, filesharing and implications such as the rise of graduated response, the first of which I prepared:

A. Role and Responsibility of the Internet Intermediaries in the Field of Copyright, by Professor Lilian Edwards

This Study aims to identify the trends and principles governing the changing role of Internet intermediaries, summarizing the evolution of business models and outlining the complex issues to be considered in developing public policy in this field.

B. Comparative Analysis of National Approaches of the Liability of the Internet Intermediaries, by Professor Daniel Seng and Professor Juan Jose Marin

In this second Study, Professors Seng and Marin seek to identify the possible commonalities among different liability doctrines. The Study is divided into two parts, the first consisting of a “Survey of National Legislation and Jurisprudence on the Liability of Internet Intermediaries in the Field of Copyright and Related Rights”, covering 30 jurisdictions¹. The second contains a conclusion resulting from the Survey, which defines trends and commonalities in the treatment of the responsibility of Internet intermediaries.

Both (I would modestly suggest) are worth a read , though the second as so far issued is empirical description, no conclusions yet. They do however dovetail usefully. My report's tentative conclusions are:

• - Global consensus on NTD as sensible balance between rightsholders and intermediaries broken in copyright field

• - No consensus on replacement regime

• - Graduated response (GR) solutions are costly, error prone and sanction may be disproportionate; pose serious risks to fundamental rights and public interest in digital inclusion; and their effectiveness is unproven.

• - Accordingly recommended that any attempt to impose GR by law should be justified by prior, independent ,empirical investigation, taking into account not just economic factors but also (i) impact on fundamental freedoms (ii) public interest in digital inclusion and promotion of innovation and (iii) state of incentives to create a market of legal alternatives to illicit filesharing.

• - If GR regimes are so justified, regimes should be introduced via legislation, subject to constitutional scrutiny , rather than by voluntary or coerced action

• - Solutions imposing fewer costs on user and public interests should be adopted first, eg, “notice and notice” rather than notice and disconnection, and empirically monitored to see if they prove sufficient

• - International treaty should lay down rules on safeguards to be observed in any GR regime imposed by law. In particular, independent and transparent scrutiny of allegations of infringement before sanction, as well as judicial appeal after such, is vital.

• - Website and content blocking and blanket monitoring in particular should both be subject to stringent scrutiny as presumptively in breach of fundamental freedoms.

The - The international community should give pressing attention to what legal steps must be taken to facilitate and incentivise new business models for monetising digital content.

I just spoke to WIPO's Standing Commitee re the report which I may say more about later (currently leaching the free wi fi at Geneva Airport. ) I also had request for the slides I used which summarise the rather long report : WIPO is putting these up itself but I will try to add them here too shortly.