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Trends in Copyright Enforcement Law

Wednesday, June 6, 2012 - 11:11

There seems to be a shift in how Governments and rightsholders are looking to use Internet intermediaries, such as ISPs, to enforce Intellectual Property Rights (IPR) on line. For some time the focus has been on looking at the content of network traffic in order to detect infringing copies - in Belgium a court went as far as ordering an ISP to install content inspection appliances, while in other countries including France, the UK and Ireland the Government has either imposed or encouraged schemes where ISPs are required to respond to information obtained by rightsholders through their own monitoring of content flowing on networks.

Although the content inspection approach hasn't gone away (though both the Belgian and Irish examples have recently been challenged), most of the activity by both Governments and rightsholders now seems to relate to using intermediaries to prevent access to particular locations where infringing content is published. Thus in the UK the Copyright, Designs and Patents Act 1988 has been used to obtain a court order requiring BT to add the URLs of the Newzbin website, in Ireland the absence of such a power has been identified and challenged and in Spain new blocking legislation has been proposed. Various legislative proposals in the USA also seek to interfere with users' ability to access sites identified as infringing IPR.

I wonder whether the reason for this change may be similar to the European Court of Justice's (ECJ) analysis of the Belgian order on content inspection, which concluded that state action to inforce IPR must consider three possible side-effects: the cost to intermediaries of implementing the state's requirements, whether those requirements would also hinder lawful communications by Internet users, and whether those requirements would represent an interference with those users' right to privacy. The Court didn't prohibit such side-effects, but did require that they be proportionate in view of the likely benefit to Intellectual Property Rights. When a requirement to implement content inspection was considered against these tests, the side-effects on other communications, on users' privacy and, in particular, on the cost to the ISP, were considered too high. Interestingly, even though the ECJ judgment had not been published at the time, the judge considering whether to require BT to block URLs looked at the same three issues, found that all three side-effects were much less and therefore that this order was, indeed, proportionate.

The common theme here seems to be a recognition that cost, over-blocking and privacy invasion are all undesirable side-effects that need to be taken into account, and that blocking particular locations may raise fewer concerns than content inspection. It will be interesting to see whether the same analysis is applied to other technical approaches to blocking (for example by manipulating routing or DNS resolution, both of which have a higher risk of over-blocking than URL blocking).

Incidentally the ECJ ruling only applies to IPR enforcement systems imposed by the state: it doesn't prohibit a network operator from installing a content inspection system - whether for IPR enforcement or other traffic management reasons - on its own initiative. However since the privacy and over-blocking concerns were explicitly derived from the European Convention on Human Rights it's probably still a good idea to ensure that such systems are designed and operated in a way that reduces interference with those rights as far as possible.