This is the time of exploration. Countries around the world, both individually and collaboratively, are exploring and experimenting with new solutions to strengthen enforcement and curtail online copyright infringement. There is also increasingly international interest in harmonising digital copyright law and enforcement. It is too soon to say what is the appropriate or preferable enforcement approach. Further research and careful consideration of the potential ramifications is needed. Looking 10 years into the future, it is likely that a number of today’s proposals will have been discarded, perhaps because they are ineffective, too expensive, unreasonably impact the Internet and its users, or are no longer considered necessary (e.g. if other initiatives are successful in reducing the level of infringement).

This paper draws from the expertise, experience and discussions within the Internet Society Copyright Working Group (2009-2010). It is intended to provide an overview of some of the potential issues for the Internet, Internet technologies, access and Internet use, posed by several main categories of emerging Internet-focused policy responses to online copyright infringement.

Overview and observations

Technological innovations and the widespread adoption of the Internet present new challenges for the protection of copyright, principally because:

• Copyright content can be easily reproduced and cheaply transported in digital form all over the world via the Internet using any number of different protocols and distribution models.
• The Internet does not distinguish between lawful and unlawful traffic.
• There is no truly uniform global copyright law (e.g. what is illegal in one country may be legal in another) or approach to enforcement.
• Infringers may be numerous, pseudo-anonymous and located outside national borders (i.e. beyond the reach of local law enforcement).

Social developments such as the advent of “mash-ups” also challenge traditional concepts of what is “fair use”. However, underlying all this is a human element – attitudes such as “downloading a film is okay even if it is not legal” and perhaps even a misunderstanding or lack of knowledge as to what is permissible and what is not.

This is the time of exploration. Countries around the world, both individually and collaboratively, are exploring and experimenting with new solutions to strengthen enforcement and curtail online copyright infringement. There is also increasingly international interest in harmonising digital copyright law and enforcement. It is too soon to say what is the appropriate or preferable enforcement approach. Further research and careful consideration of the potential ramifications is needed. Looking 10 years into the future, it is likely that a number of today’s proposals will have been discarded, perhaps because they are ineffective, too expensive, unreasonably impact the Internet and its users, or are no longer considered necessary (e.g. if other initiatives are successful in reducing the level of infringement).

This paper draws from the expertise, experience and discussions within the Internet Society Copyright Working Group (2009-2010). It is intended to provide an overview of some of the potential issues for the Internet, Internet technologies, access and Internet use, posed by several main categories of emerging Internet-focused policy responses to online copyright infringement, namely:

• Suspension of Internet access (preventing an Internet subscriber from using their subscribed Internet connection to access the Internet for a specified period of time) Note: This measure is being applied as the final step in an escalating “graduated response” process (otherwise known as “three-strikes”).
• Traffic shaping (limiting the bandwidth provided to an Internet user (e.g. the speed or the volume of traffic)
• Blocking (preventing Internet users from: accessing websites or other sources of content; using protocols (e.g. P2P); using ports)
• Content identification and filtering (identifying content in Internet users’ traffic and preventing them from accessing or distributing that content)
• DNS manipulation (preventing Internet users from accessing websites or other sources of content via the domain name system)

As this is a discussion document, the Internet Society does not seek to state a position on the complex and controversial issues canvassed in this paper, but rather we seek to stimulate further dialogue and collaborative examination of these issues at the international, regional and local level.

Nonetheless, we offer some observations and “work-in-progress” principles:

The challenge is to find an enforcement approach which is effective, efficient, replicable across jurisdictions AND proportionate, fair, provides due process, respects fundamental rights and does not unreasonably impact third parties.

Awareness raising, education and offering affordable legal alternatives are an important aspect of any online copyright enforcement plan.

Technical measures to combat online copyright infringement can be circumvented: They will not prevent copyright infringement from occurring in the online environment.

• Infringers can easily avoid solutions that focus on preventing infringement via a subscriber’s connection to the Internet through their ISP (e.g. traffic shaping) by shifting to another Internet access point or deploying technical and social counter-measures (e.g. disguising infringing traffic).
• Infringers can also avoid solutions that focus on preventing access to infringing content via the DNS by using other “addresses” (e.g. IP addresses, alternate DNS).

A stepped enforcement procedure with an educative element (e.g. warnings followed by a sanction) offers some promise but still has many obstacles to overcome, including ensuring:

• methods used for detection of infringement and identification of infringers are reliable, accurate and carried out in a privacy-respecting manner;
• stringent data protection rules and security;
• the procedure:
  • is linguistically, socially, culturally and economically appropriate;
  • does not unreasonably interfere with the business or activities of ISPs and third parties;
  • does not diminish innovation and development of the Internet, Internet technologies and the spread of Internet access;
  • is applied to proven, not suspected, infringement;
• any sanctions are proportionate, fair, appropriate, and are applied with due process by an independent suitably qualified third party.

We also note that a very important underlying question raised by these emerging Internet-focused enforcement policies is:

What role (if any) can and should Internet intermediaries and domain name registries play in enforcing copyright in the online environment?

This question cannot be answered in isolation: before one can begin to answer this question, it is important to consider holistically, among other things, the scope of copyright in the online environment, motives behind online infringement, how copyright is infringed, objectives behind online copyright enforcement, how the Internet functions and develops, how different enforcement policies might operate in practice, and the potential impact they may have.

Date of study: 20 February 2011