Posted: 1 Apr 2014
Date Written: March 31, 2014
To effectively deter current large scale copyright infringement, deterrence theory teaches us that to be effective, enforcement should make sure it can target as many infringements at the same time, or increase its sanctions. Rights holders, sometimes together with governments, have used a variety of strategies to massively increase the scale of enforcement. This paper summarizes the results from case studies on eight enforcement strategies in six countries (US, UK, France, Ireland, Spain and the Netherlands). It presents evidence that the costs of enforcement are pushed onto other players than the rights holders and that higher scale corresponds inevitably with a reduction in legal safeguards compared to existing civil and criminal law procedures. It also discusses the evidence that enforcement has been ineffective.
Method: As a theoretical framework, this study makes a cost benefit analysis of copyright enforcement and takes into account social costs. Deterrence theory as articulated by Bentham and later put into economic terms by Becker, teaches us that rational agents make an economic cost benefit analysis before they break the law, on the risks involved. The greater they perceive the likelihood they get caught and the greater the punishment, the less likely they are to commit the crime. This means copyright enforcement should make sure it can target as many infringements at the same time to be effective, or increase its sanctions. Empirical research shows that increasing the likelihood of capture is more effective. However, this creates costs as well. In order to lower the costs of enforcement, Harris says, procedural safeguards (like standards of evidence) can be removed as a policy choice.
This study looks at 8 procedures that scale up enforcement (target as many infringements at once): mass litigation in the UK, US, notice and takedown in the Netherlands and as applied by Google, Graduated response in France and Ireland, and targeting infringement supply in Spain and the US. Through literature study and 29 interviews with different players relevant to the specific procedures, a step-by-step analysis has been made on how those procedures work in practice, and their influence on specific safeguards and copyright infringement.
Preliminary Findings: Increasing the scale of enforcement has only limited effects on infringement when focused on users. When focused on the supply side of infringement, effects are even less. Those different procedures only scale up when safeguards are diminished. When enforcement scales up, the severity of sanctions decreases. Meanwhile, enforcement costs are massive and have shifted to new players (non-rightsholders): ISPs, and new agencies that handle enforcement. Interestingly, the market for content appears to be functioning quite well.
The results imply that enforcement might not work as a deterrent because the scale and severity of sanctions is too low. Policy makers thus have a choice: to make enforcement more effective this would require even more scale and especially higher severity. This would however be disproportional, and one wonders whether this would be accepted from a human rights or a democratic perspective. Especially when safeguards are further lowered.
Looking at new business models, maybe a better way to move forward would be to accept the status quo, and from an legal economics perspective, accept infringement as an input cost.
Keywords: Copyright enforcement, law and economics, deterrence, legal safeguards, due process
Suggested Citation: Suggested Citation
Kreiken, Floris, Effects of Large Scale Copyright Enforcement on Infringement and Due Process Procedural Safeguards (March 31, 2014). 2014 TPRC Conference Paper. Available at SSRN: https://ssrn.com/abstract=2418332