A Regulatory Framework for Dealing with Online Copyright Infringement (OCI)

Abstract

Countries around the world are debating ways to better limit online copyright infringement (OCI) without unduly harming Internet freedoms. Courts and policymakers have focused so far on the substantive rights that must be balanced before implementing any measure to limit OCI: Are users' privacy rights preserved? Will the mechanism hurt freedom of expression? Is the measure too costly for Internet intermediaries to implement? Are users' procedural rights protected? Will the measure have other undesirable side effects on innovation and the Internet ecosystem? Relatively little attention has been paid to institutional and regulatory aspects, and in particular whether lawmakers could entrust a regulatory authority with the task of balancing these competing interests. In the UK and France, lawmakers have entrusted an independent regulatory authority with tasks associated with limiting OCI. In the United States, a private organization, the Center for Copyright Information (CCI), has assumed a quasi-regulatory role modelled after the French HADOPI. Even the Librarian of Congress, via its jailbreaking rules, plays a role affecting OCI. If we were to imagine an regulatory framework for dealing with OCI, what would it look like? The paper examines several existing regulatory approaches for OCI, as well as the European regulatory framework for electronic communications, and attempts to propose an regulatory model. The paper argues that a proper application of the proportionality test for OCI measures requires a dynamic and forward-looking approach, and that a regulatory authority is best placed to do this. Finding the right balance in a given situation requires technical expertise, a close observation of the market and frequent updating of regulatory solutions as markets evolve. The framework requires that the regulatory authority use a light touch, but that the authority have a full set of tools at its disposal and be able to reach all kinds of Internet intermediaries. The regulatory authority should give preference to voluntary stakeholder solutions and impose mandatory measures only as a last resort. The paper proposes three bodies of rules that would form the basis for the regulatory framework, and concludes by mentioning obstacles that may make the ideal model difficult to implement.