Evaluating Graduated Response
37 Columbia Journal of Law & the Arts 147-209 (2014)
Monash University Faculty of Law Legal Studies Research Paper No. 2013/56
63 Pages Posted: 8 Sep 2013 Last revised: 12 Jun 2014
It has been more than three years since the first countries began implementing 'graduated responses', requiring ISPs to take a range of measures to police their users' copyright infringements. Graduated responses now exist in a range of forms in seven jurisdictions. Right-holders describe them as 'successful' and 'effective' and are agitating for their further international roll-out. But what is the evidence in support of these claims?
After providing a detailed snapshot of the structure and application of graduated response schemes in France, New Zealand, Taiwan, South Korea, the U.K., Ireland and the U.S., the paper synthesizes the available evidence regarding the efficacy of the various arrangements, and then evaluates the extent to which they are actually achieving the copyright law’s aims. Of course, as the work acknowledges, it is impossible to identify any one unifying target or rationale. Accordingly, the paper evaluates the extent to which the global graduated response is helping to achieve any of several distinct aims that are often put forward to justify the grant and expansion of copyright (while being agnostic as to which, if any, should be preferred). Thus, it asks:
1. To what extent does graduated response reduce infringement? 2. To what extent does graduated response maximize authorized uses? 3. To what extent does graduated response promote learning and culture by encouraging the creation and dissemination of a wide variety of creative materials?
The analysis demonstrates that, judged against these measures, there is little to no evidence that that graduated responses are either 'successful' or 'effective'. The analysis casts into doubt the case for their future international roll-out and suggests that existing schemes should be reconsidered.
Keywords: copyright, ISP liability, tertiary liability, infringement, United Kingdom, South Korea, New Zealand, United States, Taiwan, Ireland, France, Hadopi, infringement notices, enforcement
JEL Classification: O34, K00
Suggested Citation: Suggested Citation