Open Letter to the UN Special Rapporteur: Nothing Wrong With Graduated Response

Dear Mr Frank La Rue,

With interest I have read your report (May 16, 2011) for the Human Rights Council on the promotion and protection of the right to freedom of opinion and expression, and the concern you have for the graduated response. I was unpleasantly surprised by the uncritical reception of the document in the media. Why an open letter on IP Dragon? This blog is dedicated to intellectual property in the People’s Republic of China. The Hong Kong Special Administrative Region, which is part of China, but has its own legislation, just rejected the graduated response in its Copyright (Amended) Bill 2011. Therefore I take this opportunity to respond to your sincere but unnecessary concerns about the graduated response in relation to human rights, so that it does not give ammunition to people less charmed by the graduated response on the wrong grounds.

In your report you refer to yourself in Paragraph 49: “[H]e is alarmed by proposals to disconnect users from Internet access if they violate intellectual property rights. This also includes legislation based on the concept of “graduated response”, which imposes a series of penalties on copyright infringers that could lead to suspension of Internet service, such as the so-called “three strikes-law” in France34 and the Digital Economy Act 2010 of the United Kingdom.35“
34 Decision 2009-580, Act furthering the diffusion and protection of creation on the Internet, (original: Loi favorisant la diffusion et la protection de la création sur internet), Conseil Constitutionnel, 10 June 2010. Available from: http://www.conseil-constitutionnel.fr/conseilconstitutionnel/root/bank_mm/anglais/2009_580dc.pdf.
35 Digital Economy Act 2010, sections 3-16.

The graduated response is a generic term for a batch of measures that can work as a deterrent and as an effective countermeasure against peer-to-peer (P2P) file-sharing that infringes copyrighted works. In his paper The Graduated Response Peter Yu included the following non-exhaustive catalogue of actions: suspension and termination of service, capping of bandwidth, blocking of sites, portals and protocols. As you give the examples of the “three strikes-law” in France and the UK, I will focus on these first.

France
On May 12, 2009 the French National Assembly (parliament) passed the Act furthering the diffusion and protection of creation on the Internet requiring internet service providers to undertake a “graduated response” in case internet users illegally exchange copyrighted material without prior agreement from the copyright holders. Or to be more precise: article L336-3 Intellectual Property Code: “A person who has subscribed to internet access to online public communication services is under a duty to ensure that said access is not used for reproducing, showing, making available or communicating to the public works or property protected by copyright or a related right without the authorization of the copyright holders provided for in Books I and II when such authorization is required“.

A day later also the Senate voted in favour of the Act. However, on May 19, 2009, some members of the National Assembly contested the constitutionality of the bill and referred it to the Constitutional Council for review. On June 10, 2009, the Constitutional Council held that the bill was partly unconstitutional, read here (English). It said that it violated the Declaration of the Rights of Man and of the Citizen (1789) and the presumption of innocence, separation of powers and freedom of speech. The bill was revised and approved by the Constitutional Council on October 22, 2009.

In paragraph 38 the Constitutional Council wrote in their review of June 10, 2009: “When enabling copyright holders or holders of related rights, together with persons authorised to represent the same for the defence of their rights, to petition the Tribunal de grande instance to order, after a full hearing of all parties, the taking of measures necessary to prevent or put an end to such infringement of their rights, Parliament has not failed to respect freedom of expression and communication. It will be incumbent upon the court called upon to hear such petitions to order solely those measures strictly necessary to preserve the rights involved. Subject to this qualification, section 10 is not unconstitutional.” 

So the biggest revision was that Haute Autorité pour la diffusion des œuvres et la protection des droits sur internet (HADOPI), the independent administrative authority that should administer the Act furthering the diffusion and protection of creation on the Internet, needed to do a judicial review before revoking a person’s internet access. The implementation of the Act furthering the diffusion and protection of creation on the Internet went not smooth, but to build an institution such as HADOPI costs time. I agree with the French Constitutional Council that there is nothing fundamentally wrong with the revised bill.

Rights and duties
My question to you Mr La Rue is why are you “alarmed” by proposals to disconnect users from internet access if they violate intellectual property rights. I am sure you have not forgotten that property rights are human rights too, article 17 Universal Declaration of Human Rights. Do copyright holders have the right to stop people infringe their rights online? This indeed is a rhetorical question. Nobody would be “alarmed” if someone who has copied complete books of the library and distributed the copies to all his friends was warned twice by his library and when he is caught the third time, that his library card will be revoked directly after a judicial review. And nobody would be concerned if such a person, after being warned twice and given a judicial review, will have no access to any library in the country for a certain period of time.
There are human rights, but these are coupled to human duties. In fact, all internet service providers already let their clients sign a contract in which they agree with the duty to not infringe copyrights and which clarifies possible consequences, including disconnecting access.

You focus only on the copyright infringers’ right to freedom of opinion and expression. From a moral point of view one can argue that if they value this human right they should also value other people’s human rights including to enjoy its property. Copyright infringers infringe precisely because they might be too creatively challenged to have any opinion and expression of their own. However this does not justify to safeguard them from effective copyright enforcement. What can be justified, but is oftentimes neglected, is that when copyrights are infringed the right to freedom of expression and opinion of professional creators or people who invest in creative products is undermined. If you do not support effective measures such as a graduated response that can protect creative efforts via copyright you take away the very oxygen of creativity.

UK
The 2010 Digital Economy Act also introduces a graduated response. The internet service providers have an obligation to notify subscribers of reported infringements (article 124A). There is the obligation to keep infringement lists to the copyright holders (article 124B). And there are obligations to limit internet access (articles 124 G and 124 H). However as these articles demonstrate the Secretary of State needs to elaborate on measures that limit internet access, followed by approval by the parliament.

Quid pro quo
The US, Australia, Singapore and since the Copyright (Amendment) Bill 2010 also in Hong Kong, there is a quid pro quo for online service providers. If the online service providers in these countries apply a kind of anti-piracy measures they will be offered a statutory limitation of liability. However in Hong Kong, the online service providers get the safe harbour even without having to implement measures to disconnect copyright infringers. In short: they get a safe harbour without graduated response. They only have to implement “notice to notice” (sending of the notice to the claimed infringer on the receipt of a notice from the copyright holder) and “notice and takedown” (taking down or disabling access to the claimed infringing materials on the receipt of a notice from the copyright holder). Read Connie Carnabuci of Freshfield Bruckhaus Deringer’s article ‘Strengthening protection of digital copyright in Hong Kong’ from January 2010 about it here.

Hong Kong does not address non-hosted piracy caused by peer-to-peer (P2P) exchange of copyrighted material without prior permission of the copyright holder, as IFPI points out. “Meaningful measures at the network level, as well as a ‘graduated response’procedure for dealing with repeat infringement, could reduce P2P piracy and provide effective deterrence. They could also reduce the need to bring litigation to stop online infringement.” Read the comments of May Seey Leong, Benjamin Ng and Gadi Oron of IFPI here.

Promising survey
According to a survey (1,000 internet users) conducted by the Hong Kong Transition Project of the Hong Kong Baptist University between October 17 and 19, 2009, and sponsored by the International Federation Against Copyright Theft – Greater China (IFACT-GC), 60 percent of the surveyed internet users in Hong Kong admitted to illegally download content. The good news, however, was that: