Global Trends in Online Copyright Enforcement: A Non-Neutral Role for Network Intermediaries?

Abstract

This article examines a worldwide shift in laws, policies, and practices pertaining to intermediaries’ role in online copyright enforcement. We use a comparative methodology to expose an emerging trend in jurisdictions, including Australia, Belgium, Canada, China, the European Union, France, Germany, Japan, New Zealand, Singapore, South Korea, the United Kingdom, and the United States.

Previously, the worldwide standard approach to issues of Internet service provider liability was to require carriers and hosts to behave passively until becoming aware of copyright-infringing activities on their networks, at which time a reaction typically involving the takedown of allegedly infringing content was required. Very recent events in several jurisdictions demonstrate a new trend away from a passive-reactive approach toward an active-preventative approach instead. Government policies, voluntary practices, legislative enactments, and judicial rulings are all contributing to this shift in the rules applicable to online intermediaries.

One reason for the shift is increased pressure from rights holders on legislators and policymakers to make intermediaries play a greater role in online copyright enforcement. Another less obvious reason is that intermediaries’ and rights-holders’ interests are aligning. While rights holders are concerned about copyright enforcement and intermediaries are concerned about network management, the result is a mutual interest in content filtering or traffic shaping.

The danger highlighted by this article is that policymakers might inadvertently craft inappropriate legal and regulatory responses by failing to appreciate the divergent motivations behind, and implications following, this trend. To help avoid those pitfalls, this article exposes a new global trend in the area of online copyright enforcement, and it suggests increased coordination among policymakers and affected stakeholders as an appropriate response.

Keywords: copyright, ISP, internet, liability, carrier, host, service provider, Copyright Act, DMCA, throttling, shaping, traffic

JEL Classification: K10, K19, K20, K23, K29, K30, K39