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 that 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.

An Analysis of Claimed Relationships between iTunes Sales in France and Hadopi

Paper: Hadopi and iTunes.pdf (241KB)

Data file: Hadopi and iTunes Data.xls (469KB)

Abstract

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. However, in these debates many figures and statistics are presented without being critically examined. This paper attempts to perform such an examination on one such claim.

The claim comes from a study published in 2012 which was reported to demonstrate the effectiveness of a French ‘anti-piracy’ law. This paper introduces the Study then discusses its methodology and conclusions, comparing with what has been reported. The paper notes possible areas of criticism in both aspects, and presents alternate explanations for the observed data.

It should be noted that this paper does not seek to overturn the findings of the Study, nor criticise its authors. It merely notes that the conclusions drawn should not be considered proven, and not used in debates without an understanding of the level of accuracy and reliability.
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The Stop Online Piracy Act; Analysing the Law

This post aims to be an objective analysis of SOPA, as they stand at the time of writing. I will attempt to update this as and if the law progress. Obviously I have no familiarity with US lawmaking, which may be particularly evident in this post.

The Stop Online Piracy Act (SOPA) and Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (Protect-IP Act or PIPA) were introduced into the US House of Representatives and Senate respectively in the summer of 2011. They cover substantially the same material, and only SOPA will be analysed here. As their titles suggest, they are both aimed at reducing or restricting the online infringement of copyright, by targeting certain websites both directly, indirectly and through their financing.

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Measures to Tackle ‘Illegal Sites’

This week the Government published several documents relating to copyright. Most significantly, the IPO released its response to the Hargreaves Review of Intellectual Property and Growth. The Government seems to have accepted most of the recommendations in principle, including the legalisation of format-shifting, but we will not know until later this year (or next year) whether or not this will lead to a change in the law.

One of the most significant changes (particularly given the recent Newzbin2 ruling) was the widely reported announcement by Vince Cable (of the Department of Business, Innovation and Skills) that plans to block ‘illegal websites’ were being scrapped. Given the many concerns with web-blocking (some of which I have discussed elsewhere) it is unsurprising that this apparent change in policy has been welcomed by many groups. However, this celebration may be premature as the documents themselves paint a different picture. Read the rest of this entry »

Illegal Sites and Web-blocking

In the last week there have been three stories in the news concerning copyright infringement and “illegal websites”. In each case, a group with an interest in enforcing copyright has called for or announced measures against such websites, but this raises an important question of what makes a website illegal. In terms of copyright infringement this is a very tricky question as there is no easy way to tell whether content or a service is unlawful. Read the rest of this entry »

Copyright – Should Fair Dealing be replaced by Fair Use?

The following is an independent research essay analysing whether or not the UK should adopt a general, fair use defence to copyright infringement similar to the one found in US law. It was produced as part of my degree course, although the submitted version varies significantly due to limits on the length. This is the “original” version and contains a detailed look at copyright, its scope, history and purpose, before examining the fair dealing and fair use defences. Sections of the essay will be appearing in stand-alone posts, in (hopefully) a more accessible form.

Copyright – Fair Dealing and Fair Use.pdf (161 kB)

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What Makes Something Fair? – A close look at fair dealing

When copyright law was first introduced by the Copyright Act 1710, there were no defences available – is a registered book was copying, it was an infringement. Over the next two hundred years, judicial activism in this area led to a general defence known as “fair use.” The importance of this defence was recognised by Parliament and was included in the 1911 Copyright Act under the new name “fair dealing”.

Today, the fair dealing defences cover three main areas of permitted acts; private study and research, criticism and review, and news reporting. This is an exhaustive list and no other types of use can be covered. These defences are now found in the Copyright, Designs and Patents Act and added to these is an exception for education. While the requirements for each individual area are laid out in the Act, the definition of fairness is not given and so has been developed by the Courts. Read the rest of this entry »