The City Livery Company for the
Communications and Content Industries
COPYRIGHT IN THE DIGITAL AGE
Chapter 4: A Legal Investigation of Copyright: Blocking Initiatives
​
Introduction
​
As discussed in the previous chapter, GR systems, in the beginning, focused on deterring the consumer from downloading illegal content, through the use of escalating penalties, and later through the use of educational redirection. However, there are other methods of enforcing copyright which focus not on the end user, the consumer of the illegal content, but on those who are providing access to illegitimate content. This chapter will consider the twin measures of notice and takedown and blocking injunctions. Notice and takedown is a term used to describe a variety of actions which require the removal of copyright infringing material from online locations. At its most basic, notice and takedown consists of a notice sent by a copyright holder to an infringing online host, requesting the takedown of the infringing content. This legal notice is then complied with by the host, and further action is not required, as the content is no longer available. While notice and takedown is an effective system, it is labour intensive, and requires the consistent monitoring of websites to locate infringing content and send the relevant notices, but it remains a popular method of enforcing copyright, with millions of notices sent monthly.1
Notice and takedown is complemented by the larger-scale action of blocking access to those websites which persistently infringe copyright, whether through the breadth of content, depth of use, or simply refusal to remove infringing content. While GR can be framed as both a deterrent and a penalty against copyright theft, the solely deterrent method of blocking websites has been gaining traction in the last few years. This is generally achieved by way of an injunction obtained through the courts. This differs from the earlier discussion of voluntary systems, such as the CAS and CCUK;2 an injunction is required to force ISPs to block access to any infringing websites and ISPs do not voluntarily comply (although they often do not argue).3 Similar provisions for ISPs can be seen in multiple different territories, including the UK, where the High Court in 2012 granted its first injunction against an ISP (British Telecom) under Section
​
1 The Lumen Project, a database of takedown notices, receives approximately three thousand notices a day. It was, until November 2015, known as Chilling Effects. Lumen Team, ‘Chilling Effects Announces New Name, International Partnerships’ (Lumen Blog, 2 November 2015) <https://lumendatabase.org/blog_entries/763> accessed 16 December 2015.
2 See Chapter 3.
3 The power to grant such injunctions is found in Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OJ L167/10 (InfoSoc Directive) Art 8(3).
119
97A of the CDPA,4 and Ireland, which ordered six leading Irish ISPs to block access to The Pirate Bay in June 2013.5 In contrast to this, was the Australian decision in iiNet6 in 2012, which was a decision substantially more favourable towards ISPs. This was entirely reversed, however, by legislation in 2015.7 Blocking injunctions are a measure that have experienced controversy regarding their implementation, and certainly stimulate debate. The second half of this chapter discusses blocking legislation in the UK, the controversy regarding implementing blocking injunctions in Ireland, the greater controversy regarding the attempt to create a power for blocking injunctions in the US, and finally the rapid change of opinion in Australia.
​
Notice and Takedown
​
Notice and takedown is the term used to refer to different systems across Europe and the US by which copyright owners can compel online entities to take down copyright infringing materials in response to a notification. The cooperation with the notice, and removal of offending material, then grants to the online service provider an immunity against further legal action or measures, known as a ‘safe harbour’. The use of notice and takedown procedures is one of the most prolific and effective ways of dealing with copyright piracy, with Google receiving over 54 million takedown requests per month.8 In the UK, and indeed across Europe, notice and takedown is legislated for by the European E-Commerce Directive, which was adopted in 2000.9 Article 14 of the Directive sets out provisions for a system which grants ‘safe harbour’ from litigation to online hosts which comply with its provisions.10 The Directive does not set out specific instructions for how a notice and takedown system will operate, instead allowing member states the freedom to create and administer their own notice and takedown systems as they see fit. What guidance the Directive does give is that where an online host has ‘actual knowledge’ of copyright infringement, they must act expeditiously to remove the content or
​
4 Twentieth Century Fox and others v Newzbin Ltd [2010] EWHC 608 (Newzbin1).
5 EMI Records (Ireland) Ltd and others v UPC Communications Ireland Limited and others [2013] IEHC 274.
6 Roadshow Films Pty and others v iiNet Ltd [2012] HCA 16.
7 Copyright Amendment (Online Infringement) Act 2015 (Australia).
8 Google Transparency Report, ‘Requests to remove content: Due to copyright’ <http://www.google.com/transparencyreport/removals/copyright/> accessed 21 September 2015, <https://www.dropbox.com/s/fmqqo1t7gr6m86u/Screenshot%202015-09-21%2014.41.15.png?dl=0> accessed 21 January 2016.
9 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market [2000] OJ L178/1 (E-Commerce Directive).
10 Specifically, on becoming aware of illegal activity or information, it must act ‘expeditiously to remove or disable access to the information’: E-Commerce Directive (n 9) Art 14(b).
120
disable access to it.11 The Directive also encourages the development of voluntary agreements between consumer agencies and trade associations to stimulate the development of efficient systems.12
In the US, a similar scenario is created by virtue of the Digital Millennium Copyright Act 1998 (DMCA).13 The DMCA passed the Online Copyright Infringement Liability Limitation Act (OCILLA) 1998,14 which creates a safe harbour for Online Service Providers (OSPs) (which includes ISPs and other online intermediaries), shielding them from copyright liability provided that they follow certain rules. This safe harbour provision includes the American notice and takedown system. Following the procedures set out in OCILLA, copyright holders may send a takedown notice to OSPs where their content is infringed through the direction of a user (eg a post to a message board, upload to YouTube, or a search engine result).15 The service provider will then take down the link to the content and notify the uploader that their content has been removed. The uploader may, if they wish, then send a counter notice, in response to which the complainant has fifteen days to bring judicial proceedings. If this does not happen, the content will be released. In order to retain their immunity from litigation, OSPs are required to put in place a system which deals with ‘repeat offenders’ with regard to copyright infringement. This may range from Google removing certain websites from their search results to an online forum banning a user who persistently posts copyright material – the circumstances can be varied and diverse.
For content owners in the UK, the use of the system on a solo basis may be difficult – while they could set up Google Alerts16 for their content, it is possible that they would seek legal advice before sending notices, adding extra costs, and the sending of notices is time-consuming, as it requires the content owner to seek the details of the website owner. Some content owners use monitoring agencies in protecting their copyright. When looking at the results of Google’s transparency report, one can see that several monitoring agencies submit takedown requests on
​
11 ibid.
12 ibid Recital 40.
13 Digital Millennium Copyright Act 1998, Pub L 105–304 (US).
14 ibid.
15 Digital Millennium Copyright Act 1998, 17 USC § 512(c).
16 Google Alerts is a system which monitors Google search results for specific keywords – an author could monitor their name, the title of their book, the name of the book series, etc. The system will then send notifications to the Alerts user, directing them to the search results which display their keywords. Google Alerts <https://www.google.co.uk/alerts> accessed 16 December 2015.
121
behalf of those they represent – MarkMonitor,17 Remove Your Media LLC,18 and Takedown Piracy LLC,19 as well as industry bodies such as the Recording Industry Association of America (RIAA), the BPI (British Recorded Music Industry), and the Publishers Association (PA). While some agencies cover a multitude of content types (eg MarkMonitor), others are more specialised, and focus on a particular content type (eg Remove Your Media focuses on film). When considering industry bodies, they tend to focus on only a single content type, due to their nature as industry bodies – for example, the RIAA focuses on recorded music, whereas the PA focuses on print media – books, magazines, journals etc.
Many of these monitoring systems are commercial agencies, and thus difficult or expensive to gain access to. The PA, which represents book and journal publishers across the UK, maintains a database, the ‘Copyright Infringement Portal’,20 which can be used as an example of the effectiveness of notice and takedown. Access to the Portal is free for all members of the PA, and available to others on a subscription basis.21 The Portal, which was established in 2009, as eBooks were on the cusp of becoming an industry standard,22 sent over three million takedown notices in the time from establishment to end of research period.23 The Portal allows publishers to share the load of monitoring content infringement, creating an effective way of dealing with notice and takedown procedures. Over the years, the Portal has become a fully-fledged notice and takedown system with monitoring capabilities, which will send multiple notices with the correct legal requirements – eg referencing European or US law as relevant – in an automated system which reduces the need for small and medium businesses to engage the services of a solicitor to protect their copyright.
17 MarkMonitor <https://www.markmonitor.com/> accessed 23 September 2015.
18 Remove Your Media <http://www.removeyourmedia.com/> accessed 23 September 2015.
19 Takedown Piracy <http://takedownpiracy.com/> accessed 23 September 2015.
20 Copyright Infringement Portal <http://copyrightinfringementportal.com> accessed 19 December 2015. 21 Publishers Association, ‘What does the CIP do?’ (The Publishers Association) <http://www.publishers.org.uk/services-and-statistics/copyright-infringement-portal/what-does-the- cip-do/> accessed 14 January 2016.
22 Amazon’s Kindle was launched first in 2007, and the Apple iPad first in 2010 – these devices brought eBooks to the forefront and made them a more mainstream content type. Jacob Kastrenekes, ‘The iPad’s 5th anniversary: a timeline of Apple’s category-defining tablet’ (The Verge, 3 April 2015) <http://www.theverge.com/2015/4/3/8339599/apple-ipad-five-years-old-timeline-photos-videos> accessed 16 December 2015; Kyle Wagner, ‘The History of Amazon’s Kindle So Far’ (Gizmodo, 28 September 2011) <http://gizmodo.com/5844662/the-history-of-amazons-kindle-so-far/> accessed 16 December 2015.
23 Claire Anker, ‘Meeting the Infringement Challenge’ (BookBrunch, 4 November 2015) <http://www.bookbrunch.co.uk/article_free.asp?pid=meeting_the_infringement_challenge> accessed 19 November 2015.
122
The Copyright Infringement Portal originally came into existence as a method of sharing notice templates, with reference to the correct legislative provisions. Over the years it developed, with a major redesign and relaunch in mid-2015. The Portal monitors the top infringing sites – those deemed to be severely infringing due to depth or breadth of content – and creates a system where individual PA members and Portal subscribers can then use this monitored database to search for their titles. The database uses text matching to match authors, titles, or ISBNs, and returns a list of links to possible infringing sites. The content owner can then check these sites, and use the Portal to send a copyright notice if necessary – thus simplifying the process of sending notices, as the Portal already has the relevant details for each repeat infringing site. Furthermore, the Portal aggregates infringement data at a higher level, which then informs further actions, such as the blocking injunction action brought by the PA which is discussed later in this chapter.24
Notice and takedown is a system which has resulted in large amounts of copyright material being protected – Google’s transparency report, which lists both the number and nature of takedown requests they receive, is regularly updated, and shows the huge growth of takedown requests over the course of the years 2009-2015. It also gives detailed data on each reporting organisation. Using the PA as an example, we can see that since July 2011, which is when Google’s transparency report data begins, the PA has requested the removal of over 1.5 million URLs, through almost 11,000 requests, with an average of 54 requests per week.25 The transparency data also lists the top five domains from which the content is requested for removal. Two of these domains26 were the subject of a blocking injunction action discussed later in the chapter. These figures represent only requests submitted to Google through their online form, relating to search results, and not other Google services such as YouTube or Blogger – but one can see from the scale of the numbers involved that notice and takedown is a system which is functioning well, and growing also. If, as mentioned, the PA sent 3 million notices, and 1.5 million of those were to Google, the other 1.5 million must have been to other website providers. As a system which allows the continued operation of the online world without the need for litigation, notice and takedown is highly effective – large companies such as Google are quick
​
24 Conversation between author and Publishers Association Digital Infringement Manager, Claire Anker, 2 September 2015 3pm.
25 Google Transparency Report, ‘Reporting Organization: The Publishers Association’ <http://www.google.com/transparencyreport/removals/copyright/reporters/141/The-Publishers- Association/> accessed 14 November 2015.
26 Ebookee and bookfi.
123
to respond to takedown requests, while other OSPs which do not cooperate can then be targeted for further action.
This is, of course, not to say that notice and takedown does not have its weaknesses and failings – both the DMCA and the European system have their weaknesses, including the fallibility of automated notice sending27 – the reason why printers have been subject to DMCA notices.28 The systems are open to abuse in multiple ways – including, inter alia, sending notices where the notice sender is not the copyright holder,29 or where the use of the work is legitimate under fair use or other exceptions, sending multiple notices rather than following the correct procedures,30 and sending notices to take down works where the notice sender is the subject of the work, not the copyright holder.31 There are, however, some measures in place to prevent some of these abuses. In 2001 Chilling Effects,32 a joint project of several US law schools, including Harvard, Stanford, Berkeley, and the Electronic Frontier Foundation, was established as a database which analyses copyright removal requests, with the aim of studying the potential ‘chilling effect’ of those notices on free speech. It rebranded in 2015 as Lumen Database.33 Lumen is used by major OSPs, including Google, Twitter, and reddit, to list their takedown requests and analyse them for abuse.34 Further, in 2006, an independent third party analysis of the frequency of improper and invalid takedown submissions was conducted.35 This paper listed some of the weaknesses of the DMCA, and made suggestions for reforms which might help to curb abuses in the system.
​
27 Automated notifications could in themselves be an abuse of the system, given that the DMCA requires a ‘good faith belief’, and computers are not capable of beliefs or faith. Digital Millennium Copyright Act 1998, 17 USC § 512 (c)(3)(A)(v).
28 Michael Piatek, Tadayoshi Kohno, Arvind Krishnamurthy, ‘Challenges and Directions for Monitoring P2P File Sharing Networks – or – Why My Printer Received a DMCA Takedown Notice’ (HotSec Conference, San Jose, 29 July 2008) <http://dmca.cs.washington.edu/uwcse_dmca_tr.pdf> accessed 23 September 2015.
29 Electronic Frontiers Foundation, ‘Takedown Hall of Shame: News Agency With Dubious Copyright Claim Threatens Removal’ (Electronic Frontier Foundation, 2011) <https://www.eff.org/takedowns/news- agency-dubious-copyright-claim-threatens-removal> accessed 16 December 2015.
30 If a notice is appealed, then the notice sender’s next course of action should be to file a lawsuit. However, notices which are appealed may simply be ignored, and a second notice sent to take down the relevant content, rather than resorting to litigation. This is an abuse of the system.
31 Jeffrey Cobia, ‘The Digital Millennium Copyright Act Takedown Notice Procedure: Misuses, Abuses, and Shortcomings of the Process’ (2009-10) 10(1) Minn JL Sci and Tech 387.
32 Lumen Database <https://lumendatabase.org/> accessed 23 September 2015.
33 Lumen Team (n 1).
34 See, for example, David F Gallagher, ‘New Economy; A copyright dispute with the Church of Scientology is forcing Google to do some creative linking’ (The New York Times, 22 April 2002) <http://www.nytimes.com/2002/04/22/business/new-economy-copyright-dispute-with-church- scientology-forcing-google-some.html?src=pm&_r=0> accessed 16 December 2015.
35 Jennifer M Urban and Laura Quilter, ‘Efficient Process or “Chilling Effects”? Takedown notices under section 512 of the Digital Millennium Copyright Act’ (2006) 22 Santa Clara Computer and High Tech LJ 621.
124
These included changing the time of takedown until after the alleged infringer has had a chance to respond, and strengthening the remedies for abuse.36 Although the report made some conclusions about the proportions of improper takedown notices, it is worth noting that the data related to the first years of operation of the Chilling Effects/Lumen database (2002-2005), and the numbers concerned were far lower than in 2015 – hundreds of notices per year, rather than the hundreds of millions in 2013 and 2014. Thus, the evolution of the DMCA processes required further assessment.
This further analysis can be seen in the 2013 paper Clickonomics,37 which stated that notice and takedown measures were not 100% effective – in fact, sending takedown notices could result in a cat and mouse game between content owner and uploader, with the content owner required to seek out ever more incarnations of file hosting sites in order to send takedown notices. The paper suggested instead that a more effective method of curbing piracy would be to curb the financial incentives which are attached to it – the ‘follow the money’ approach which was advocated and adopted more in the 2010s and is discussed later in this thesis.38
Although notice and takedown is not a perfect solution, and focuses only on single files being taken down, it has been successful in removing millions of infringing files every month and continues to be a tool in the arsenal of rights holders as they protect their content. Research has shown that takedown does result in a decrease in the availability of files, even if this effect is only temporary.39 Furthermore, the monitoring of notorious, prolific, or non-cooperative sites for the frequency and variety of content, or a refusal to engage with takedown procedures then informs the second copyright enforcement measure discussed next in this chapter – that of blocking injunctions.
Blocking Injunctions United Kingdom
In the United Kingdom, there is a general statutory power to issue inunctions, which could be used to prevent copyright infringement where it is ‘just and convenient’ to do so.40 However, in 2003, as a part of implementing the InfoSoc Directive,41 a specific new section was inserted into
​
36 ibid 688-692.
37 Tobias Lauinger and others, ‘Clickonomics: Determining the Effect of Anti-Piracy Measures for One- Click Hosting’ (Network and Distributed System Security Symposium, San Diego, 24-27 February 2013). 38 See Chapter 7.
39 Lauinger and others (n 37) sIV(a).
40 Supreme Court Act 1981 s 37(1).
41 InfoSoc Directive (n 3) Art 8(3).
125
the CDPA42 creating the power to issue an injunction against a service provider ‘where that service provider has actual knowledge of another person using their service to infringe copyright’.43 This provision remained unused until 2011, when it had its first outing, in Newzbin2.44 In Newzbin145 six film studios sought an injunction against Newzbin Limited, a website which operated on Usenet46 (an online discussion system). The claimants asserted that the operation of the site allowed users to access copyright materials in a matter of clicks, and that this was the focus of Newzbin. Newzbin asserted that it was content agnostic – that it neither encouraged nor discouraged piracy.47 This case resulted in an injunction against Newzbin, restricting them from providing links to the content owned by the claimants.48 Newzbin was taken down shortly after, but reappeared at the same domain days later, this time operating in Sweden under a slightly different name.
Newzbin249 had a different focus. It was not against Newzbin itself (at this point trading as Newzbin2). Although it was the same six studios, this time their action was against the ISP British Telecom (BT) seeking an injunction to force BT to block access to Newzbin2 – this being the most direct route, rather than attempting to pursue a Swedish company. The case ultimately concluded that BT had actual knowledge of the infringement and thus it was permissible, under section 97A, to issue an injunction forcing BT to block access to Newzbin2.50
This first blocking injunction issued in the UK was followed in 2012 by forcing the six largest UK ISPs51 to block The Pirate Bay,52 then KAT,53 H33t and Fenopy,54 and the live streaming of football matches.55 These judgements were all issued by Arnold J. The success of obtaining these
​
42 This section was inserted by the Copyright and Related Rights Regulations 2003 SI 2003/2498, s 27. 43 Copyright, Designs and Patents Act 1988 (as amended) s 97A(1) (CDPA).
44 Twentieth Century Fox and others v British Telecommunications PLC, [2011] EWHC 1981 (Ch) (Newzbin2).
45 Newzbin1 (n 4).
46 Usenet is, according to the Oxford English Dictionary, ‘[a] non-centralized communication service comprising a large number of newsgroups, now typically accessed through the Internet.’ It is, in a simplistic sense, a cross between an email chain and a discussion forum.
47 Jeremy Phillips, ‘A fable for modern times: the Fox and the Newzbin’ (The IPKat, 29 March 2010) <http://ipkitten.blogspot.co.uk/2010/03/fable-for-modern-times-fox-and-newzbin.html> accessed 16 December 2015.
48 Newzbin1 (n 4), 135.
49 Newzbin2 (n 44).
50 ibid 204.
51 Those ISPs, incidentally, were Sky, BT, EE, TalkTalk, Telefónica [O2] and Virgin.
52 Dramatico Entertainment Ltd and others v British Sky Broadcasting Ltd and others [2012] EWHC 268 (Ch).
53 KAT stands for KickassTorrents.
54 EMI and others v BSkyB and others [2013] EWHC 379 (Ch).
55 Football Association Premier League v BSkyB and others [2013] EWHC 2058 (Ch).
126
injunctions, as well as the fact that it was a relatively hassle-free method of blocking access to content infringing websites (for content owners, at any rate) ensured the popularity of blocking injunctions as a viable method of enforcing copyrights. In addition, when ISPs ceased to argue against these injunctions, the financial burden associated with seeking an injunction was lessened, making them relatively quick and easy to obtain.
All the above judgments relate to P2P sites and streaming sites. They blocked ‘first generation’ torrent sites. The reach of these injunctions was extended the following year. The British Phonographic Industry (BPI) requested an order to block access to a list of 21 websites by the end of October 2013.56 What was particularly interesting about this order was the fact that the 21 listed websites included linking sites, which did not host the content themselves. This issue was considered also regarding SolarMovie and TubePlus57 – sites which provided a database of links to infringing content but did not actually host the content. SolarMovie allowed the downloading of content, where TubePlus did not, but both sites monitored the quality of links, as well as providing services to make the links easier to find, such as categorisation and referencing. This case then raised the question: does hyperlinking constitute an infringement of copyright? In considering this, Mr Justice Arnold made extensive reference to three cases before the CJEU,58 but ultimately declared that mere hyperlinking is not communication to the public. However, he also declared that the websites in question in this case were doing more than just linking, and thus issued another blocking injunction.
In the first three years of UK blocking injunctions, the websites blocked were a variety of types (torrent aggregators, streaming sites, link curators) and covered a variety of content types (film, TV, music). The majority focus, however, was not on print. There was, in fact, a notable absence of focus on print – the cases for blocking injunctions were brought by film studios and music companies, and the Football Association Premier League. The blocking of torrent aggregators did also benefit publishers though, as a blocked torrent aggregator or link site cannot direct pirates to illegitimate copies of print material. It was not until 2015 that there was a successful application for a blocking injunction made by print publishers – in May 2015, seven websites were the subject of a blocking injunction action brought by the PA,59 the same organisation
​
56 1967 Ltd and others v British Sky Broadcasting Ltd and others [2014] EWHC 3444 (Ch).
57 Paramount Home Entertainment and others v BSkyB and others [2013] EWHC 3479 (Ch).
58 Svensson and others (Case C-466/12), C More Entertainment (Case C-279/13), and Bestwater (Case C- 348/12).
59 Publishers Association, ‘Publishers Win High Court Support in Fight Against Infringement’ (Press Release, 26 May 2015).
127
which administers the Copyright Infringement Portal. The sites were link providers and curators which provided access to an estimated ten million books – PA investigations showed that upwards of 80% of content available on the websites was unlawful.60 The application was not contested in court – ISPs had ceased to argue against these cases by this point – and the order was given to block the sites. The seven blocked sites61 then brought to over 120 the number of sites blocked under the section 97A provisions.62 When one takes into account the proxies, redirects, and clones which are also required to be blocked under the injunctions, the number of sites blocked is over 500.63 For content owners and their representative bodies, blocking injunctions are something of a no-brainer. Given the lack of opposition from ISPs, and the fact that orders are often made without the need for a full hearing or judgement, they are a simple and relatively quick way to block access to infringing sites.
However, that is not to say that they are infallible. The injunctions apply only to consumer broadband, meaning that the sites are still accessible through mobile, business, or other types of internet access. Indeed, during the course of research, the author was able to access all the sites listed as blocked, as she was working on a university internet connection, not a consumer broadband connection. However, the deterrent effect of a block on consumer broadband should not be underestimated.
​
Ireland
​
In late 2010, Mr Justice Peter Charlton noted64 a lacuna in the Irish law – that Irish rights holders could not seek an injunction against an ISP requiring them to block access to a website which was infringing their copyright. He believed that this was due to a failure to properly transcribe
​
60 Henry Mance, ‘Book Publishers Win Landmark Case Against eBook Pirates’ (Financial Times, 26 May 2015) <http://www.ft.com/cms/s/0/988850e0-038c-11e5-a70f-00144feabdc0.html#axzz3bG2vyKuv> accessed 24 July 2015.
61 Ebookee, LibGen, Freshwap, AvaxHome, Bookfi, Bookre, and Freebookspot.
62 Sky, ‘Websites we’ve blocked under order of the High Court’ (Sky) <http://help.sky.com/articles/websites-blocked-under-order-of-the-high-court> accessed 15 July 2015; List of Court Orders <http://www.ukispcourtorders.co.uk/> accessed 15 July 2015.
63 Darren Meale, ‘500 and Counting: websites blocked by order of UK courts’ (The IPKat, 29 July 2015) <http://ipkitten.blogspot.co.uk/2015/07/500-and-counting-websites-blocked-by.html> accessed 19 December 2015; TalkTalk, ‘Access restricted to certain file sharing websites’ (TalkTalk) <http://help2.talktalk.co.uk/access-restricted-certain-file-sharing-websites> accessed 14 January 2016; Darren Meale, ‘Access Blocked! List of UK ISP blocking injunctions’ (eLexica, 20 July 2015) <http://www.elexica.com/en/legal-topics/intellectual-property/29-access-blocked> accessed 14 January 2016.
64 This observation was made in the case EMI Records (Ireland) Ltd and others v UPC Communications Ireland Ltd [2010] IEHC 377. Incidentally, this is the case which originally established that UPC was not required to implement a GR system like that of Eircom, although it was later subject to a different GR system.
128
the requirements of certain EU Directives, including the E-Commerce Directive,65 the InfoSoc Directive,66 and the Copyright Enforcement Directive67 into Irish law.68
In response to this, the government sought closing this lacuna, doing so in the form of the European Union (Copyright and Related Rights) Regulations, 2012 (the CRR Regulations). Article 8(3) of the InfoSoc Directive provides that ‘each Member State shall ensure that the rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe copyright or related right.’69 The CRR Regulations provide for this by amending Sections 40 and 205 of the Copyright and Related Rights Act 2000.70 They inserted into each section a provision that copyright owners may apply to the High Court for an injunction against such intermediaries.
The proposal of the Regulations met with strenuous objections from the Irish public. They were quickly dubbed Irish SOPA71 and met with some controversy due to the fact that they were a statutory instrument, and thus were neither subject to consultation nor voted on in the Oireachtas (the Irish parliament). Numerous articles were published and arguments were made for and against the regulations, in the Daily Business Post,72 TheJournal.ie,73 Ireland’s public broadcaster RTÉ,74 and on their Prime Time TV broadcast,75 and they were even commented on
​
65 E-Commerce Directive (n 9).
66 InfoSoc Directive (n 3).
67 Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights [2004] OJ L195/16.
68 EMI v UPC (n 64) 133.
69 InfoSoc Directive (n 3) Art 8(3).
70 Copyright and Related Rights Act 2000 (Ireland).
71 The proposed American bill (A Bill to promote prosperity, creativity, entrepreneurship, and innovation by combating the theft of U.S. property, and for other purposes —HR 3261 (2011) (SOPA)) envisaged wide-ranging powers to grant injunctions blocking access to sites with infringing content. It was hotly protested, as discussed infra.
72 Adrian Wreckler, ‘Reality Bytes: Ten-point guide to ‘Irish SOPA’ row’ (The Daily Business Post, 29 January 2012) <http://www.businesspost.ie/reality-bytes-ten-point-guide-to-irish-sopa-row/> accessed 14 January 2016.
73 Michael Freeman, ‘Ireland’s ‘SOPA’ Legislation: The big arguments for and against’ (TheJournal.ie, 26 January 2012) <http://www.thejournal.ie/ireland%e2%80%99s-%e2%80%98sopa%e2%80%99- legislation-the-big-arguments-for-and-against-336952-Jan2012/> accessed 14 January 2016; TJ Macintyre, ‘Everything you need to know about Ireland’s SOPA’ (TheJournal.ie, 24 January 2012) <http://www.thejournal.ie/readme/reader-irelands-sopa-a-faq/> accessed 14 January 2016.
74 Niall Kitson, Why ‘Ireland’s SOPA’ could be a good thing’ (rte.ie, 27 January 2012) <http://www.rte.ie/news/business/technology/2012/0127/311599-sopa/> accessed 14 January 2016.
75 RTÉ, ‘Prime Time’ (26 January 2012) <http://www.rte.ie/news/player/2012/1112/3180372-prime-time- copyright-law-changes-and-sopa/> accessed 14 January 2016.
129
by Mr Justice Charleton,76 the judge who originally recommended the closing of the lacuna. The Regulations were hotly debated and discussed. A website was also established to direct the campaign against the CRR Regulations, http://stopsopaireland.com,77 encouraging Irish citizens to talk to their local TD78 and attempt to stop the regulations. The main complaint aired against the regulations was that they were unduly vague. Indeed, while the UK section 97A gives specific direction as to what constitutes ‘actual knowledge’ of infringement, including whether or not the service provider has received a written notice of the infringement,79 by comparison, the CRR Regulations give no such specification, stating only that right holders may apply for an injunction under the provisions of InfoSoc Article 8(3), and the court ‘shall have due regard to the rights of any person likely to be affected by virtue of the grant of any such injunction’.80 Thus, it is clear that the UK provisions are more prescriptive when it comes to the circumstances in which an injunction may be granted. In spite of varied and enthusiastic protesters, the Regulations received Ministerial consent and on February 29, 2012, were signed into law.81
Despite Minister Sherlock’s assertions that the Regulations would not be used to block access to sites (a strange assertion, considering that was exactly their purpose),82 the first injunction was issued the following year, in The Pirate Bay case.83 It is worth noting that the parties were the same as the 2010 case which stated the need for the CRR Regulations, these being the second
76 See TJ Macintyre, ‘The law should be predictable as to what is mandated and what is forbidden’ (IT Law in Ireland, 5 February 2012) <http://www.tjmcintyre.com/2012/02/law-should-be-predictable.html> accessed 14 January 2016.
77 Stop SOPA Ireland <http://stopsopaireland.com/> accessed 14 January 2016.
78 TD – Teachta Dála, a member of Dáil Éireann, the lower house of the Irish Parliament.
79 CDPA (n 43) s 97A.
80 Copyright and Related Rights Act 2000 (As Amended) s 40 (5A) (Ireland).
81 European Union (Copyright and Related Rights) Regulations 2012 SI 2012/59 (Ireland). The main proposal for SOPA Ireland came from Minister of State for Research and Innovation Seán Sherlock.
82 Seán Sherlock TD (@seansherlocktd) (Tweet, 24 January 2012) ‘There is no intention by the government to introduce legislation to block access to the Internet or sites. I have state [sic] that unambiguously.’ <https://twitter.com/seansherlocktd/statuses/161600885435281409> accessed 13 January 2016.
83 EMI and others v UPC and others [2013] (n 5).
130
through seventh84 largest ISPs in the country.85 The facts were also the same. The judgement was relatively simple – Charleton J had stated already of the injunctive relief ‘were it available, I would grant it’.86 In this case, while the original order was granted without issue, the issues to be discussed were the necessity to reapply to the court were The Pirate Bay to change its location on the internet, and which parties should bear costs. With regard to the first issue, McGovern J relied on the persuasive authority of Arnold J in 20th Century Fox Film Corporation v British Telecoms Plc,87 bringing Irish jurisprudence into line with that of England and Wales, accepting the draft order submitted to the court which eliminated the need to reapply in such a case, and using the new legislation to resolve the lacuna which had been noted in the earlier EMI v UPC88 case. The same regulations have since been used to block access to more infringing websites, such as KAT,89 in an order made in the Commercial Court in December 2013.90 Although it appeared at the time that blocking injunctions would become an accepted tool much like in the UK, no injunctions have been sought since. The reasons for this may be a potential future research project.
84 By name, these ISPs are UPC, Vodafone, Imagine, and Digiweb, Hutchinson 3G [Three] and Telefónica Ireland [O2] – only one of which [Telefónica, or O2] is the same as the six largest in the UK. Since the issuance of this injunction, Hutchinson 3G purchased Telefónica’s Irish operations (Conor Humphries and Clare Kane, ‘Telefonica sells O2 Ireland to Hutchinson’s 3 for $1billion’ (Reuters, 24 June 2013) <http://uk.reuters.com/article/2013/06/24/uk-telfonica-ireland-idUKBRE95N05N20130624> accessed 14 January 2016), merging the two and creating a 40% market share, equal to Eircom. UPC also became Virgin Media, changing the shared largest companies from one (of six) to two (of five). See Virgin Media Ireland, ‘UPC Confirms Plans to Become Virgin Media in Ireland’ (Press Release, 28 August 2015).
85 The largest ISP, Eircom, was already required to block The Pirate Bay in accordance with the circumstances discussed in Chapter 3 under the section ‘Ireland’.
86 EMI v UPC (n 64).
87 20th Century Fox Film Corporation v British Telecoms Plc [2012] Bus LR 1461 1528, para 12: ‘In my judgment an injunction limited to ‘sole purpose’ would be too easily circumvented to be effective. Furthermore I do not consider that the studio should be obliged to return to court for an order in respect of every single IP address or URL that the operators of newzbin2 may use. In my view the wording proposed by the studio strikes the appropriate balance. If there is a dispute between the parties as to whether the predominate purpose of an IP address or URL is to enable or facilitate access to newzbin2, they will be able to apply to the court for a resolution of the dispute. In saying this, I do not mean that BT will be obliged to check IP addresses, or URLs notified by the studios. It will be the studios’ responsibilities accurately to identify IP addresses and URLs to be notified to BT.’
88 EMI v UPC (n 64).
89 KAT was also the subject of a UK blocking order, as discussed earlier.
90 Tim Healy, ‘Internet firms ordered to block file-share sites’ (The Irish Independent, 3 December 2013) <http://www.independent.ie/irish-news/courts/internet-firms-ordered-to-block-fileshare-sites- 29803417.html> accessed 14 January 2016.
131
United States
​
In October 2011, a pair of Bills were put to both houses of the US government. The Stop Online Piracy Act (SOPA) in the lower house91 and the Protect Intellectual Property Act (PIPA) in the upper house were separate but complementary acts designed to grant extra powers to prevent the infringement of copyright online. Provisions of the Act included allowing the issuing of court orders to prevent advertisers from contracting with infringing websites, increasing the penalties for online copyright infringement, making streaming a criminal offence, and the creation of a power to issue a court order blocking access to copyright infringing websites.92 Although the bills were paired, the main reaction online was to SOPA, and thus this section is concerned also mainly with SOPA.
To say that SOPA was opposed would be something of an understatement. It was the subject of a co-ordinated online campaign against the imposition of provisions that were declared to ‘undermine the openness and free exchange of information at the heart of the Internet. And […] violate the First Amendment.’93 From their inception, the two bills were subject to protest, including before they reached the house floor. A major part of this was the ‘Blackout’ protest which took place in January 2012. Some 115,000 websites,94 including Google and the English- language Wikipedia took down their services, or placed banners on their front page, stating that SOPA would damage the free and open internet. On the same day, there were also physical protests in New York, San Francisco, and Seattle.95 Criticism of the bills was not restricted to solely a grassroots campaign crying censorship – academic criticism also pointed out that the method of blocking would destabilise the internet,96 stifle innovation,97 and impact on
​
91 SOPA (n 71).
92 SOPA (n 71) sec 102(2)(A)(i).
93 Laurence H Tribe, ‘The “Stop Online Piracy Act” (SOPA) violates the first amendment’ (Scribd, December 6, 2011) <http://www.scribd.com/doc/75153093/Tribe-Legis-Memo-on-SOPA-12-6-11-1> accessed 10 August 2015.
94 Jenna Wortham, ‘Public Outcry over Antipiracy Bills Began as Grass-Roots Grumbling’ (The New York Times, 19 January 2012) <http://www.nytimes.com/2012/01/20/technology/public-outcry-over- antipiracy-bills-began-as-grass-roots-grumbling.html?pagewanted=1&ref=technology&_r=0> accessed 10 August 2015.
95 Jenna Wortham, ‘With Twitter, Blackouts and Demonstrations, Web Flexes Its Muscle’ 18 January 2012 <http://www.nytimes.com/2012/01/19/technology/protests-of-antipiracy-bills-unite- web.html?ref=technology&_r=0> accessed 10 August 2015.
96 Mark A Lemley, David S Levine and David G Post, ‘Don’t Break the Internet’ (2012) 64 Stanford Law Review Online 34.
97 Michael A Carrier, ‘SOPA, PIPA, ACTA, TPP: An Alphabet Soup of Innovation-Stifling Copyright Legislation and Agreements’ (2013) 11(2) Northwestern Journal of Technology and Intellectual Property 21.
132
cybersecurity.98 The massed outcry against SOPA and PIPA was successful – by the end of January 2012 the bills were removed from further voting.
Australia
​
In Australia, until 2015 the prevailing law with regard to the liability of ISPs was AFACT v iiNet.99 In this particular case, the appellants were 34 companies who owned a variety of copyrights in ‘thousands of commercially released films and television programs’.100 Under the representation of the Australian Federation Against Copyright Theft (AFACT), they sued the second-largest ISP in the country, iiNet Limited, seeking a declaration that by allowing their users to infringe copyright, they themselves were infringing copyright. The case was dismissed in the first instance in the Australian Federal Court by Cowdry J, declaring that ‘iiNet is not responsible if an iiNet user chooses to make use of that system to bring about copyright infringement’101 and awarding costs to iiNet.
AFACT appealed to the Full Court of the Australian Federal Court, resulting in a dismissal in 2011,102 and then to the Australian High Court, which was also dismissed, this time unanimously.103 The Full Court appeal did find, however, by both Emmett and Jagot JJ,104 that liability can be attached to ISPs for allowing their customers’ infringement under specific circumstances. The Full Court decision (which is largely the same as the subsequent High Court appeal) gave far more concessions to copyright holders, and was branded a ‘hollow victory’105 by journalist David Brennan, who pointed out that the appeal decision ‘offers much to the film production companies who sued iiNet.’106 This was due to the trial judge’s statement that, had the notices been more specific, iiNet may have been subject to some liability.107 Thus, with
98 Association for Computer Machinery US Public Policy Council, ‘Analysis of SOPAʼs impact on DNS and DNSSEC’ (2012) <http://usacm.acm.org/images/documents/DNSDNSSEC.pdf> accessed 14 January 2016.
99 Roadshow Films Pty Ltd and others v iiNet Ltd [2012] HCA 16.
​
100 ibid [2].
101 Roadshow Films Pty Ltd v iiNet Limited (No 3) [2010] FCA 24 [19].
102 Emmett and Nicholas JJ dismissed, Jagot J dissenting: Roadshow Films Pty Ltd and others v iiNet Ltd [2011] FCAFC 23.
103 iiNet [2012] (n 99).
104 iiNet [2011] (n 102) [274] [Emmett J] (It does not necessarily follow from the failure of the present proceeding that circumstances could not exist whereby iiNet might in the future be held to have authorised primary acts of infringement on the part of users of the services provided to its customers under its customer service agreements) and [477] [Jagot J] (These circumstances support my conclusion that iiNet authorised the primary infringements of copyright).
105 David Brennan, ‘iiNet’s hollow victory over Hollywood’ (The Sydney Morning Herald, February 25, 2011) <http://www.smh.com.au/federal-politics/society-and-culture/iinets-hollow-victory-over- hollywood-20110225-1b7qa.html> accessed 14 January 2016.
106 ibid.
107 iiNet [2011] (n 102) [274].
133
guidance from the courts on what specifically would be required in notices, going forward, iiNet could be held responsible in certain cases, for authorising infringement. But such responsibility would only be in cases where specific detailed notices were delivered to the ISP, and ISPs were not, through any inaction, inferred to have authorised any act of infringement.108
Although the Australian Law Reform Commission did have an ongoing consultation which concluded after the iiNet decision,109 the liability of ISPs or other third parties was outside the Terms of Reference of the inquiry.110 Later in 2014, the Abbott government published a discussion paper on Online Copyright Infringement,111 which sought responses to a public consultation. One suggestion the paper made was to introduce an injunction scheme based on that of Ireland and the UK, with blocking injunctions. The consultation closed in September 2014.112 The (just over one hundred) submissions to the consultation were made available online.113 In July of 2015, the Australian Parliament passed the Copyright Amendment (Online Infringement) Act 2015,114 which inserted a new provision into the Copyright Act 1968115 granting the power to order blocking injunctions against ISPs. The injunctions would require ISPs to block sites outside of Australia which facilitate copyright infringement as the primary purpose of the site, regardless of whether that infringement is in Australia or not. This is a less stringent requirement than the British section 97A, as there is no requirement for actual knowledge of the infringement, nor is there any definitive information as to how the ‘primary purpose’ of a site may be defined. This is a question for the Australian courts to decide.
The rapid change from the 2012 iiNet decision refusing to impose liability on ISPs to the 2015 injunctive power is interesting, as it demonstrates an almost
180-degree rotation for the Australian governance, certainly a noteworthy one. However, it is also important to note that the 2013 election and subsequent new government may have some responsibility for this difference. This turnaround, however, may also be indicative of a change in attitude more globally. For the US, where the reaction to proposed blocking measures was so vehement, the
​
108 iiNet [2012] (n 99) [62].
109 Australian Law Reform Commission, ‘Copyright and the Digital Economy: Final Report’ (2013) ALRC Report 122.
110 Australian Law Reform Commission, ‘Copyright and the Digital Economy’ (2012) ALRC Issues Paper 42.
111 Attorney-General for Australia, ‘Online Copyright Infringement’ (Press Release, 30 July 2014).
112 ibid.
113 Now defunct, the submissions were available previously. Online Copyright Infringement Submissions <http://www.ag.gov.au/Consultations/Pages/OnlineCopyrightInfringement-Submissions.aspx>.
114 Copyright Amendment (Online Infringement) Act 2015 (Australia).
115 Copyright Act 1968 s 115A (Australia).
134
rapid development in Australia may bode well for a potential reintroduction of similarly framed legislation. Nonetheless, there is still a distinction to be drawn between blocking and censorship – at times a fine line to walk.
​
Analysis
​
From the above discussion, we can see that the provision of legislation to facilitate injunctions forcing ISPs to block access to certain websites is gaining popularity in more than one jurisdiction, even Australia, which had previously rejected such a provision. It may well be that this is an example of growing movement to pass responsibility toward ISPs. In the European Union, this ability is provided via the InfoSoc Directive, specifically by Article 8(3), which was then transposed into Member States’ national laws.116 The whole-hearted embracing of such blocking injunctions is nowhere more clear than in the UK, which had blocked over 500 sites (including mirrors and proxies) by mid-2015, with Notice and Takedown and blocking injunctions both being embraced by publishers, more so than graduated response systems – demonstrated by over three million takedown notices sent by the PA Copyright Infringement Portal alone,117 and the PA’s blocking orders against book piracy sites.118
Thus, the nature of blocking injunctions would hopefully deter the casual or lazy copyright infringer. Further, with the leak of the Trans-Pacific Partnership (TPP) IP chapter in May 2015,119 it can be seen that blocking injunctions are also a topic of discussion in international agreements. If the leak is accurate, and if the negotiations continue to keep this as a part of the agreement, blocking injunctions will receive greater prominence by the TPP’s necessitating their introduction in signatory countries. As Eleonora Rosati queries, is 2015 the year of the blocking injunction?120 It certainly seems so, with countries around the world introducing the power into their legislative repertoires, international agreements considering the measure, and Mr Justice Arnold opining in Cartier v BSkyB that there was no measure as effective as blocking injunctions currently on the statute books.121
116 Article 8(3) injunctions are available in many European Member states, including Denmark, Belgium, Italy, Sweden, the Netherlands and Austria. Newzbin2 (n 44) [94].
117 Anker (n 23).
118 Mance (n 60).
119 Trans-Pacific Partnership, ‘IP Chapter’ (2015) <http://keionline.org/sites/default/files/Section-G- Copyright-Related-Rights-TPP-11May2015.pdf> accessed 14 January 2016.
120 Eleonora Rosati, ‘2015: the year of blocking injunctions?’ (2015) 10(3) Journal of Intellectual Property Law & Practice 147.
121 ibid, citing Cartier International AG and Others v BSkyB and Others [2014] EWHC 3354 (Ch).
135
The effectiveness of such injunctions is sometimes incomplete. As previously mentioned, the blocks are only applied to consumer broadband. Even then, such an injunction can be avoided by changing ISP in some cases, or by utilising a proxy service or a VPN. In research conducted by Ofcom in 2010, the conclusion was that all site blocks could be circumvented by determined pirates.122 Furthermore, as can be anecdotally seen in the comments of any article mentioning blocking access to a site, or even a list of sites,123 the nature of the internet is such that any site will have multiple clones, and alternatives. Nevertheless, the effort involved in finding an alternative may well be too much for casual pirates, and so the deterrent effect of blocking injunctions should not be underestimated – it may well be effective in stopping some degree of online piracy, as demonstrated by the statistics in Cartier.124 Therefore, although forcing ISPs to restrict access to websites may not be the golden goose which will stop piracy that it may seem to be, it does have some benefits. In this author’s opinion, ordering ISPs to block infringing websites is somewhat akin to fighting the hydra by cutting off its head.125 Two will spring back in its place – this is aptly demonstrated by the number of proxy and mirror sites which are listed as blocked along with those sites to which the UK injunctions refer. The stumps must be charred to prevent regrowth. How this can be effected, however, is a difficult question. An oblique approach may be more effective than facing the monster head-on. Perhaps the pertinent question then is not how do we block access to infringing websites, but how do we redirect consumers to legitimate avenues? This approach is not unique to the author – it can be seen in the multi-pronged approach of newer GR systems, which aim to educate consumers as well as deterring them from illegitimate content,126 as well as other initiatives backed by the City of London Police, copyright holders, collective management organisations, and governments themselves.127
​
122 While this report related to sections 17 and 20 of the Digital Economy Act 2010, the technology for blocking sites would have been the same, regardless of which section the injunction was ordered under. Ofcom, ‘“Site Blocking” to reduce online copyright infringement’ (2010) <http://stakeholders.ofcom.org.uk/binaries/internet/site-blocking.pdf> accessed 19 December 2015.
123 See, for example, the comments on Gavan Reilly’s article regarding the blocking of The Pirate Bay – Gavan Reilly, ‘High Court orders six Irish internet providers to block The Pirate Bay’ (TheJournal.ie, 12 June 2013) <http://www.thejournal.ie/high-court-order-block-pirate-bay-948503-Jun2013/> accessed 14 January 2016 – which suggest alternative torrent sites and VPN providers.
124 Cartier v BSkyB (n 119) [223]-[227].
125 The Lernaean Hydra was a mythical Greek monster possessing many heads. The second labour of the demigod Heracles was to slay the Hydra, which he attempted first by removing its heads. However, the reaction was that two heads grew back for each head removed. Thus, in order to prevent this happening, Heracles cauterised the stumps of the severed heads – only then could the Hydra be defeated. Pierre Grimal, A Concise Dictionary of Classical Mythology (Stephen Kershaw ed, AR Maxwell- Hyssop tr, Blackwell 1986).
126 This is discussed in Chapter 3.
136
Conclusion
​
From 2010-2015, copyright enforcement saw much global development. For film, TV and music industries, tackling piracy and infringement was in strong focus, with a variety of approaches taken, including seeking to take down infringing files, disable the infringing websites (such as in Newzbin1128), and seeking ISPs blocking the websites (as in Newzbin2129). The UK is invested in learning from the example of others, and conducts research comparing different approaches to online copyright infringement.130 This 2015 IPO research paper demonstrates the UK’s commitment to not only monitoring the approach of other countries to copyright, comparing both public spend131 and legislative vs voluntary models,132 but also actively trying to learn from them.133 The results of this paper will then be used to inform future legislation and policy, leading to more effective and smarter ways of managing copyright.
Despite the enthusiastic participation by content creation industries in the mechanisms available to protect their copyrights, this author remains sceptical about whether they alone are an effective solution to piracy problems. The blocking systems outlined above can be circumvented without a massive amount of effort – in some cases by an action as simple as changing ISP.134 Further, the requirement that content owners send notices regarding specific instances of copyright infringement creates the necessity of a cat-and-mouse game where content uploaders are infringing with impunity, as they can re-upload files (which can in turn be downloaded) faster than content can be found and taken down.135 As well as this, uses of proxies and VPNs through countries without blocking restrictions will allow determined pirates to access those sites regardless. Equally, similar to the takedown systems, while blocking
​
127 For more on this, see Chapter 7.
128 Newzbin2 (n 44).
129 Newzbin1 (n 4).
130 IPO, ‘International Comparison of Approaches to Online Copyright Infringement: Final Report’ (2015) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/404429/International _Comparison_of_Approaches_to_Online_Copyright_Infringement.pdf> accessed 14 January 2016.
131 ibid 23.
132 ibid 6.
133 ibid 26-29.
134 In the UK, only the largest ISPs are subject to the blocking orders, thus avoiding the blocks requires only seeking internet subscriptions from smaller providers.
135 Lauinger and others (n 37).
137
injunctions are effective at blocking access to a particular site, a clone or related site will inevitably appear before too long.
As the discussion of Hadopi’s GR system in the previous chapter showed, Arnold and others did not find that the introduction of Hadopi had any significant effect on the legal sales of films or music.136 While blocking injunctions and GR schemes may deter consumers from certain types of piracy – either through a particular site (such as The Pirate Bay) or through a certain method (such as torrents), there is as yet no evidence that it encourages those consumers to obtain content legally instead. In fact, the deterrent effect of blocking and taking down content is only slight – infringement continues as before once new sources for the content can be located.137 Thus, if the consumer would not and does not purchase the content, is the implementation of GR and ISP liability creating a lot of fuss with no real result? Certainly the massive success of streaming services such as Spotify and Netflix138 suggest that consumers are willing to pay for content – but it must be at the right price. This encouragement idea is demonstrated the voluntary GR systems, especially those which are paired with an educational focus, such as in the UK.139 The mind-set change efforts are as important, if not more so, as the deterrent aspects of any enforcement mechanisms. This is also clear in the conclusions of the Clickonomics report,140 which advocated for tackling piracy higher up the chain, and focusing on squeezing those who profit directly from piracy, using the ‘follow the money’ approach. This approach is discussed more fully later in the thesis, as it focuses not on those who actually infringe copyright, the uploaders and downloaders, but those who profit from the piracy chain, the advertisers who gain from the websites which enable content infringement.141
For publishers and those related to the print industry, while tackling piracy is a concern – as shown by the PA’s Copyright Infringement Portal and the successful application for blocking
​
136 Michael A Arnold and others, ‘Graduated Response Policy and the Behavior of Digital Pirates: Evidence from the French Three-Strike (Hadopi) Law’ (2014) SSRN <http://ssrn.com/abstract=2380522> accessed 22 December 2015
137 Lauinger and others (n 37) 13.
138 As mentioned in Chapter 3, Spotify had 60 million subscribers as of 2014: Stuart Dredge, ‘Spotify financial results show struggle to make streaming music viable’ (The Guardian, 11 May 2015) <http://www.theguardian.com/technology/2015/may/11/spotify-financial-results-streaming-music- profitable> accessed 16 October 2015; Netflix had 62 million members in mid-2015: Netflix, ‘Netflix to Announce Second-Quarter 2015 Financial Results’ (Press Release, 12 June 2015).
139 See, for example, the CCUK television spot mentioned in the previous chapter, which points consumers toward legitimate avenues of content consumption. The Drum, ‘Ad for Creative Content UK’ (YouTube, 23 October 2015) <https://www.youtube.com/watch?v=DWWAFM284Yk> accessed 15 December 2015.
140 Lauinger and others (n 37).
141 For more on this, see Chapter 7.
138
injunctions in 2015 – it is not one which has had as long a history as music or films. But this is not to say that there has been no enforcement of copyright – indeed, the three million notices issued by the Portal serve as evidence to the contrary.142 The slightly slower movement towards enforcement may simply be due to the fact that the publishing industry has been slower to convert to digital, and thus took longer to see the impact on profits which has affected other creative industries – while digital music arrived in the late 90s and early 00s,143 ebooks began to rise only in the late 00s and early 10s.144 Of course it is wrong to say that publishers and the publishing industry were not affected by the digital shift or the issues discussed above – they are simply slightly further behind in terms of timelines. There is no doubt that these are still very real concerns for publishers, and they have contributed enthusiastically to relevant movements, such as sitting on the Licences for Europe committees,145 contributing to the Hargreaves review,146 and other consultations and reform procedures. It may be fair to say that for publishers, the simplification of licensing is the area of the most concern – not just to make
​
142 Anker (n 23).
143 The IFPI’s 2009 Digital Music Report showed a dramatic increase in music revenues from 2004 to 2009, with tenfold growth in revenue: IFPI, ‘Digital Music Report 2009’ (2009).
144 Tablet and e-reader ownership increased from 2010-2014, with 32% of survey participants owning an e-reader in 2014. Pew Research Media, ‘E-Reading Rises as Device Ownership Jumps’ (2014) <http://www.pewinternet.org/files/old-media//Files/Reports/2014/PIP_E-reading_011614.pdf> accessed 30 November 15.
145 eg CLA, FEP and Guardian Media on Working Group 2: Commission, ‘List of Participants in Working Group 2 – User-Generated Content and Licensing for Small-scale Users of Protected Material’ (2013) <http://ec.europa.eu/licences-for-europe-dialogue/sites/licences-for-europe-dialogue/files/131213_wg2- list-of-participants.pdf> accessed 30 November 2015; EMMA, ENPA, PLS, Reed Elsevier on Working Group 4: Commission ‘List of Participants in Working Group 4 – Text and Data Mining’ (2013) <http://ec.europa.eu/licences-for-europe-dialogue/sites/licences-for-europe-dialogue/files/131213_wg4- list-of-participants.pdf> accessed 30 November 2015.
146 Hargreaves Submissions: Association of Learned and Society Publishers, ‘ALPSP response to Independent Review of Intellectual Property and Growth’ (2011) <http://webarchive.nationalarchives.gov.uk/20140603093549/http://www.ipo.gov.uk/ipreview-c4e-sub- alpsp.pdf> accessed 14 January 2016; European Publishers Council, ‘Submission from the European Publishers Council to the Independent Review of Intellectual Property and Growth – The Hargreaves Review – March 2011’ (2011) <http://webarchive.nationalarchives.gov.uk/20140603093549/http://www.ipo.gov.uk/ipreview-c4e-sub- europepub.pdf> accessed 14 January 2016; International Association of Scientific, Technical and Medical Publishers, ‘STM Submission for the Independent Review of Intellectual Property and Growth’ (2011) <http://webarchive.nationalarchives.gov.uk/20140603093549/http://www.ipo.gov.uk/ipreview-c4e-sub- istm.pdf> accessed 14 January 2016; Professional Publishers Association, ‘Independent Review of Intellectual Property and Growth PPA Response – March 2011’ (2011) <http://webarchive.nationalarchives.gov.uk/20140603093549/http://www.ipo.gov.uk/ipreview-c4e-sub- ppa.pdf> accessed 14 January 2016; Publishers Licensing Society, ‘Independent review of Intellectual Property and growth PLS response to call for Evidence’ (2011) <http://webarchive.nationalarchives.gov.uk/20140603093549/http://www.ipo.gov.uk/ipreview-c4e-sub- pls.pdf> accessed 14 January 2016; Publishers Association, ‘Driving Innovation: Delivering Growth’ (2011) <http://webarchive.nationalarchives.gov.uk/20140603093549/http://www.ipo.gov.uk/ipreview-c4e-sub- thpa.pdf> accessed 16 December 2015.
139
the operation of their industry easier, but also to ensure that their business models are not affected by the need to implement new licensing exceptions due to market failure. This is demonstrative of the fractured nature of publishing – while film, TV, and music are largely consumer-focused, for publishing, there is a more split focus, with distinctions between academic/professional, fiction, education, journals, newspapers, and professional publications, thus splitting the focus of the industry147 – this may further explain their slower reaction to adopting enforcement mechanisms.
147 This split is visible in distinctions such as the fact that the PA Statistics Yearbook (Publishers Association, ‘PA Statistics Yearbook’ (2013)) does not cover magazine or newspaper publishing, or even in the existence of the CLA and the NLA simultaneously.