BOP Consulting and DotEcon (2015)

From Copyright EVIDENCE

Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

BOP Consulting and DotEcon (2015)
Title: International Comparison of Approaches to Online Copyright Infringement: Final Report
Author(s): BOP Consulting, DotEcon
Year: 2015
Citation: BOP Consulting, DotEcon (2015). International Comparison of Approaches to Online Copyright Infringement: Final Report, commissioned by the Intellectual Property Office.
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
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About the Data
Data Description: The research consists primarily of a desk review of policy, legislation, research and data in addition to targeted consultation with government and regulatory bodies, legal experts, rights holders’ organisations, and organisations representing Internet Service Providers (ISPs).

9 countries. In addition to the country case studies, the views of the European Commission (EC) and the World Intellectual Property Organisation (WIPO) were also sought to better understand how countries are (or are not) liaising and cooperating on the development of joint approaches to online copyright enforcement.

Data Type: Primary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: Yes
Comparative Study?: Yes
Literature review?: No
Government or policy study?: Yes
Time Period(s) of Collection:
  • Not stated.
Funder(s):
  • Intellectual Property Office

Abstract

BOP Consulting with DotEcon (‘the consultants’) were commissioned to undertake an international comparison of approaches to online copyright enforcement by the UK Intellectual Property Office (IPO) in April 2014. The aims and objectives of the research were to establish:

  • the range of different approaches currently being adopted around the world to enforce copyright in the online environment; and
  • the strengths and weaknesses of different approaches and to what extent enforcement approaches are perceived to be working to reduce infringement levels.

Finally, in order to accomplish these tasks, the brief required the consultants to identify where research is available on the level of online copyright infringement in each country. The countries chosen by the IPO for inclusion in the research are as follows: United Kingdom (UK); United States (US); Canada (CA); France (FR), the Netherlands (NL); Spain (SP); Italy (IT); Brazil (BR) and South Korea (KR).

The research consists primarily of a desk review of policy, legislation, research and data in addition to targeted consultation with government and regulatory bodies, legal experts, rights holders’ organisations, and organisations representing Internet Service Providers (ISPs). In addition to the country case studies, the views of the European Commission (EC) and the World Intellectual Property Organisation (WIPO) were also sought to better understand how countries are (or are not) liaising and cooperating on the development of joint approaches to online copyright enforcement.

Main Results of the Study

  • In almost all countries, policy has been slow to be implemented, with supply-side actions being the first to be implemented.
  • Action across the countries has been slow for a number of reasons, not least of which has been establishing who, within a rapidly developing technological context, is legally liable for infringement activities (subscriber, platform, ISP, etc.).
  • It has become common across the territories that ISPs can escape liability provided they take action when made aware of infringing material to which they provide access.
  • Except the ISPs, countries have differed in the degree to which individual subscribers and entities that facilitate or enable infringement are the target of interventions.
  • Countries have been moving to make it much easier for rights holders to act against sites that infringe copyright. Notice and take down approaches have been developed and streamlined in many countries to be very quick
  • In some cases, stakeholders have also raised concerns that notice and take down regimes merely displace hosting activity to other countries (c.f. the Dutch case)5 days in the Netherlands; 12 to 35 days in Italy, 15 days in Spain) and inexpensive
  • Demand-side action requires new legislation to be brought into place (15 years in Brazil, 5 years in the UK). These measures are contentious, bringing rights holders into conflict with both ISPs and civil liberties / consumer groups and NGOs.
  • Only Brazil and the Netherlands have dismissed the option of setting up new structures or processes to deal with the phenomenon of online copyright infringement. This suggests one or both of the following, that:

a) existing legal powers and institutions were ill-equipped to deal with the scale and speed of the phenomenon of online copyright enforcement; and b) creating new laws and institutions has a ‘signalling’ effect to both domestic and international stakeholders that shows that the issue is being taken seriously

  • The presence of dedicated regulation and legislation has, in several countries, prompted both:

a) The establishment of voluntary measures as part of the overall set-up (e.g. CAS in US, which helps protect ISPs from law suits or in lieu of a fully worked out implementation (as in the UK, where Creative Content UK has been set up in light of the delays in the implementation of the DEA); and b) The emergence of market-based solutions in some areas: e.g. services to provide due diligence for advertisers (e.g. White Bullet in the UK and the Internet Advertising Bureau in IT)

  • WIPO takes a similar view to the Commission in thinking that the most effective enforcement mechanism in the medium to long term will be the development of a competitive legal online content market


Policy Implications as Stated By Author

  • The authours conclude that where good levels of cooperation and joint working between ISPs and rights holders can be established (most obviously through voluntary agreements), this can remove much of the friction that otherwise exists in dealing with online copyright enforcement. Arguably, it also reduces the need for new, dedicated regulatory measures and actions.
  • In the authors' view, what has been striking in the development of national approaches to the enforcement of copyright online enforcement has been the lack of shared approaches between countries. This has certainly been the experience of WIPO, who organised a seminar on the role of internet intermediaries vis-à-vis tackling infringement back in 2005. However, member states were not keen on WIPO subsequently taking a clear, further role in this area and as they only act on member state requests, no further work has been undertaken to develop a harmonised framework or to share best practice by WIPO"



Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
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Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)
Green-tick.png

Datasets

Sample size: 9
Level of aggregation: Country
Period of material under study: Non stated