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.

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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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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 »

Judgment in the Digital Economy Act Judicial Review

[Cross-posted from pirateparty.org.uk.]

After only three weeks, Mr Justice Kenneth Parker has handed down his judgment in the Judicial Review of the Digital Economy Act. In summarising thousands of pages of evidence and submissions and the four-day hearing, the judge rejected nearly all of the grounds for the review, only allowing the challenge to part of the allocation of costs. The full text of the judgment can be found here and summaries of the hearings here.

The first point to note is the number of parties. While the case was between BT, TalkTalk and the government, there were thirteen interested parties involved, including six notorious pro-copyright lobby groups and four unions. This gives an indication of the intense lobbying pressure behind the Digital Economy Act, and why the previous government felt compelled to act the way they did. Read the rest of this entry »

The Purpose of the Digital Economy Act

Please note that much of this post is comment or opinion and should be treated as such. While effort has been taken to verify the facts included (and sources are given in most cases) many of the conclusions reached or suggestions given are pure speculation.

The Digital Economy Act received Royal Assent over a year ago. The most controversial features of this Act were the measures dealing with the online infringement of copyright. It has been suggested that this Act was the most heavily lobbied piece of legislation in UK Parliamentary history, with a large amount of pressure being placed on the government to force through these measures. Most of this pressure seems to have originated from certain parts of the UK and international recorded music and film production businesses, although this was quickly reinforced by support from a variety of interested groups. Given this high level of interest, it is worth considering the possible reasons for this pressure. This post will attempt to examine first the official reasons behind the Act, and will consider the legal and social effects of it (were it to be implemented) to highlight possible motives.

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The Digital Economy Act On Trial

This is a compilation of posts written for the Pirate Party summarising the main arguments made during the hearings for the Digital Economy Act Judicial Review – otherwise known as R (on the application of BT and TalkTalk) v Secretary of State for Business, Innovation and Skills. It covers the details of the first, third and fourth day of the oral submissions, I was unable to make the second day but summaries can be found elsewhere.

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