The Effectiveness of Anti-Piracy Laws; Lessons to Learn from Hadopi

… we need now to address the Digital Economy Act. We need to implement the recommendations. I am sure that the Minister saw the fantastic report done by the film industry that said that we are losing out by not tackling piracy effectively. We have seen the example of France. We know that measures similar to those in the DEA work. France has been able to direct traffic towards legal downloading sites, and there has been a decrease in pirated works, so we know that that works. – Pete Wisehart MP, Westminster Hall Debate on Intellectual Property (source).

Online infringement of copyright is a popular subject for debate both within governments, parliaments and major businesses, and among the wider population on the Internet. One of the popular methods proposed to tackle this sort of activity is a ‘graduated response’ system, whereby alleged infringers are sent increasingly harsh threats. Laws already in force include the Hadopi law in France and ‘three-strikes’ measures in New Zealand.

In the UK, similar measures were created by the Digital Economy Act 2010, but have yet to be put into action – delayed both by a lack of political will and court action brought by two UK ISPs. However, increasing pressure from lobbyists and politicians, combined with BT and TalkTalk losing their appeal, suggests there will be a renewed debate on the DEA.

But will the notification provisions in the DEA, if implemented, actually have any positive effect? Various studies and surveys have attempted to investigate this – both based on speculation and the effectiveness of the Hadopi – and a selection is presented here:

Changes in Levels of Infringement

  1. According to the IFPI, a survey carried out by Ipsos MediaCT found that “71 per cent [of P2P users in France] would stop infringing if they received a notification as part of the graduated response programme.”
  2. According to MusicWeek, a survey carried out by ZDNet.fr found that “4% of filesharers polled said they have stopped sourcing music from illegal services for fear of detection.”
  3. A survey carried out for the Intellectual Property Awareness Foundation (in Australia), found thatĀ 74% of those polled would stop infringing copyright online if their ISP told them they would suspend their Internet connection. However, 78% claimed not to use “file-sharing software” at all and only 11% claimed to use it once a month or more.
  4. A survey by BeThere of their UK users found 1% would stop and 4% would reduce filesharing if the DEA became law. Only 15% claimed not to fileshare at all.

Comparing these figures, it seems the only possible conclusion is that no real conclusions can be made. However, aside from the first survey, they all suggest only a small change in consumer behaviour due to notifications, warnings and threats.

Changes in P2P Use

Facts on this are hard to come by, but according to IFPI/Nielsen, overall P2P use in France has dropped by 26% since notifications were sent under the Hadopi law. This is apparently equivalent to 2 million users. However, without examining the methodology, it is impossible to tell if this is a relative or absolute change, or if this represents a decrease in unlawful file-sharing rather than merely a displacement to other forms.

It is also worth noting that the different IFPI statistics do not seem to add up. According to their data, Hadopi has sent notifications to around 10% of P2P users in France, with 71% claiming they would stop infringing if notified. Thus we would expect a drop in P2P use of around 7%, not 26%. This suggests at least one of those figures is not an accurate representation of the situation.

Changes in Content Sales

Of course, all the talk of changes in levels of copyright infringement is rather irrelevant. Copyright is not an end in itself – something to be enforced at all costs – but is a way of trying to encourage creativity. For graduated response schemes such as those in the Digital Economy Act to be successful, we should look for an increase in sales or revenue to creators (or even copyright owners).

According to the IFPI, a recent study “found that French iTunes sales were 23 per cent higher for singles and 25 per cent higher for digital albums that they would have been in the absence of Hadopi.” On the face of it, this would suggest that Hadopi has had some success. However, a closer examination of the study in question reveals that the increase occurred when the law was debated in the French National Assembly, with no significant change in sales around when it had legal or practical effect.

In fact, when the data and methodology of the study are examined, even those findings are questionable; with the change in sales patterns possibly beginning even earlier, and potentially being the result of a transfer of music fans from iTunes to Spotify in the UK.

An Anti-Copyright Law

While modern copyright law in the UK does not have an explicit purpose, a read of the original 1710 Copyright Act suggests its purpose is to encourage the creation and dissemination of creative works – both of these being in the public interest. If that is the case, the statistics above seem to suggest that ‘graduated response’ measures such as Hadopi or the DEA have no effect on the former (with no increase in sales or revenue), but have a negative effect on the latter – by decreasing the dissemination of works as individuals are sharing less unlawfully, but not acquiring more legally.

Given this, it would seem that the DEA and Hadopi are not just anti-piracy laws, but also anti-copyright laws; going against the very principles copyright is supposed to be protecting.

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