Damian Clifford graduated from the University of Limerick in 2009 (LLB Law and European Studies) and the Universite Jean Moulin (Lyon 3) in 2010 (LLM International and European Law) before spending two years working in online policy enforcement. He is currently enrolled in the LLM in IP and E-law at UCC and is an ELSI Bursary holder.
The enforcement of copyright online has become an increasingly important and controversial issue. Finding effective means of protection has been difficult with legislators left scrambling in the wake of open source development and free access sharing services. The seemingly limitless powers of the online community to mobilise responses and circumvent controls has resulted in a frustration of traditional legal norms. Indeed the P2P data sharing problem that exists today was in some respects a direct response of the digital community to the targeting of host servers. The recent decision of the French Administrative Authority (Hadopi) to discontinue the disconnection of digital infringers of copyright has once again brought the questions regarding proportionality, legality and effectiveness of this mechanism to the fore. In my opinion this area is ready for reform and, given its already questionable legal basis; it is time to move to a more balanced approach.
The motivations behind these schemes are obvious. The internet presents a jurisdictional nightmare with users capable of transferring content across the globe virtually instantaneously. Disconnecting service is a means of targeting infringing users even when the other user(s) or software creator is located outside the jurisdiction. It is a cost effective and speedy means of enforcement which aims to change the persistent public acceptance of this activity. As such, it aims to act more as a deterrent than an actual punishment with the disconnection of only repeat offenders.
Nevertheless, the legal foundations of this enforcement means have presented polarised views on legitimacy and have exposed concerns regarding data protection and privacy. Currently in Ireland the position is somewhat unclear with only one Internet Service Provider (Eircom) enforcing this process through an arrangement with copyright holders in a ‘three-strikes’ graduated format. The case law and judicial opinion present an outdated and ineffective viewpoint on IP and fail to grasp the changes required in the digital age. What is evident is that the courts and the legislature are clearly more inclined to balance these issues in favour of the copyright holder, despite the reservations of many leading academics and public perceptions.
I hold many of the same concerns specifically relating to the legitimacy of the schemes, the proportionality of the punishment and concerns over potential breaches of fundamental rights, due process and data protection legislation. Judicial opinion in this jurisdiction is in sharp contrast to the French Constitutional Court’s decision regarding the adoption of Hadopi I. The legal issues highlighted by this case (as discussed in the various decisions of the both the UK and Irish courts) have presented a rigid dichotomy between the ‘new’ and ‘old’. Aside from the arguments regarding legality, the effectiveness of the mechanisms is also in doubt. In the UK delays, in no small part due to judicial review, mean that it will be 2014 at the earliest before the first warnings are sent to customers, a whole 4 years since the adoption of the Digital Economy Act. Given the rapidity of change and development one must question the influence this process will have upon its introduction. Clearly the French decision to abandon this form of enforcement reflects its decreasing relevance in the fight against online abuse of IP rights. In furtherance of this effectiveness argument one must also acknowledge the increasing availability of public access networks. Indeed, circumventing suspension does not require a lot of imagination arguably rendering this punishment virtually ineffective.
Furthermore, the response to the threat posed by the use of IP addresses as a means of discovering the offline identity of users has been swift. Many bit-torrent software services are now implementing means of masking IP addresses and this migration to non-IP based methods of transfer effectively renders tracking of infringing behaviour impossible. Accordingly, given the more recent developments in software development it appears logical that the more technically savvy a user is the less likely they will be discovered infringing copyright. In an Irish context, as the recent Irish Data Protection Commissioner case has shown (EMI Records (Ireland) Ltd & Ors -v- The Data Protection Commissioner & Anor  IEHC 264 and its confirmation in the Supreme Court), even without these developments accuracy remains an issue. Requiring ISPs to provide information on their customers raises concerns regarding the accuracy of the information received and the time committed to a balanced and legitimate investigation of accusations. One must be highly sceptical of the genuine legitimacy of this mechanism especially regarding the de facto switching of the burden of proof. I am concerned that efficiency and cost concerns have become the primary motivating factors superseding accuracy.
In essence enforcement is a fight against a ruthless hydra with the monster changing tactics and the point of attack with each severing counter-measure. As technology advances, a better method may be to consider a more collaborative solution and rather than isolating users, include them in finding of an answer tailored for the digital age. The constant battle between infringers and copyright holders reflects the need for a coherent system that can adapt to the dynamic nature of the industry. Lobbying by groups representing copyright holders has perhaps had too great an influence over the development of legal safeguards, and it is now time for a more inclusive and comprehensive approach. If lawmakers continue down the same well-trodden path the effectiveness concerns will re-emerge.
The developments in France highlight deficiencies and have given the Irish legislature an opportunity to form a more settled approach regarding the enforcement of IP rights in this jurisdiction. I believe it is time to modernise the approach and adjust the mechanisms of enforcement to deal with these dynamic issues. Ireland has failed to adopt an effective response resulting in a somewhat heavy handed approach to enforcement. Indeed as the idiom goes ‘if your only tool is a hammer then every problem looks like a nail.’ Thus, reform is needed and I believe the solution lies in user influenced coding that can be constantly adapted and not static legislation. However, the means of achieving this are unclear and therefore the future of this area remains uncertain.
Is mise le meas,
Damian Clifford LLB, LLM, LLM (Candidate at UCC)