Online Copyright Research Articles

From Little Things Big Things Grow: Australia’s Evolving Site Blocking Regime

Australia’s website blocking regime, introduced in 2015 and expanded in 2018, is a work-in-progress. The regime provides an avenue for rights-holders to seek injunctions requiring Internet service and search engine providers to block access to overseas websites that have the ‘primary effect’ or ‘primary purpose’ of infringing or facilitating the infringement of copyright. Furthermore, rights-holders and service providers may by agreement extend the injunction to new web addresses that provide access to the same online location without returning to court (thereby addressing the whack-a-mole problem of mirror sites). This article critically analyses the trajectory of this so-called ‘no fault’ enforcement regime and the potential problems that could arise if we continue on this path. It challenges the conception of the regime as a form of proprietary protection and, as a result, the uncritical reliance on private ordering as a keystone of online copyright enforcement. It highlights the lack of transparency fostered by the current regime and recommends measures for addressing these flaws in the design of Australia’s copyright site blocking regime.

An Investigation of Cyber Wellness Awareness: Turkey Secondary School Students, Teachers, and Parents

Cyber wellness includes the knowledge, skills, and values geared toward the protection of Internet users as well as proper and responsible technology use. Using the survey method, this study investigated the cyber wellness awareness of secondary school students and teachers as well as parents’ perceptions of their children’s cyber wellness. Six thousand eight hundred thirty-nine (6,839) students, 749 teachers, and 4,916 parents participated. Cyber wellness survey forms for students, teachers, and parents were distributed to seven school districts. Results indicated that students had high levels of awareness with regard to Internet addiction, cyberbullying, online privacy, and cybersecurity and medium levels of awareness regarding netiquette, inappropriate online content, and copyright. Additionally, students’ awareness levels differed significantly in terms of gender, class level, Internet use span, and desire for education on safe and responsible Internet use. Teachers had medium levels of awareness with respect to all of the concepts. Furthermore, it was determined that parents considered that their children had medium levels of awareness regarding Internet addiction, netiquette, online privacy, inappropriate online content, copyright, and cybersecurity along with a high level of awareness regarding cyberbullying.

Fighting European ‘Copyright Tourism’: Lessons from Defamation Laws

In the recent cases of Pinckney and Hejduk, the ECJ revised European rules on jurisdiction over online copyright infringement disputes – making it possible for claimants to bring their lawsuits in virtually any European country. Due to the application of lex loci protectionis, this choice of venue also affects the law applicable to disputes. This article shows that this results in a substantial forum shopping risk, despite safety mechanisms built into the ECJ judgments. It explains that forum shopping is not inherently bad, but that it creates major problems for copyright laws, given its potential to shift the balance between the authors and exploiters of the work. In an attempt to identify a possible solution, this article turns to the substantive implementation of de minimis principle in Principles on Conflict of Laws in Intellectual Property (CLIP) Principles. The success of this approach is illustrated through the field of media law, and specifically, the way in which United Kingdom solved the problem of libel tourism. Examining the substantive requirement of ‘serious harm’ found in the UK Defamation Act of 2013, the article proposes amending national copyright laws as to state that absent showing of the intention to target a certain Member State by the online infringing activity or, alternatively, a ‘serious harm’ suffered on its territory, no copyright infringement is to be found. This way, forum shopping in online copyright infringement cases may be stopped in its tracks, before it becomes a rampant practice in Europe.

Saving online copyright: Virtual markets need real intervention

AbstractThe internet is a treasure chest of infringing or “pirated” entertainment media, which viewers from around the world access, copy, and share with relative ease. Data and qualitative reviews suggest infringement is ubiquitous in the streaming and downloading domain. The current approach to copyright enforcement places undue burdens on copyright owners who cannot economically advance claims against millions of individual users. Poorly constructed copyright laws and misguided Court decisions have left rights‐holders with too few remedies against commercial entities involved in the storage, retrieval, transmission, access, and streaming of their works. A five‐year exploratory and observational study were conducted to discover facts about online pirate media, how services function, how companies make money, and how they skirt around laws prohibiting unauthorized commercial exploitation of copyright. Sites discovered had multimillion‐dollar valuations and annual revenues, mostly derived from third‐party advertisements. The study found numerous deficiencies in copyright legislation and judicial interpretation that enable massive online infringement to continue. Recommendations include statutory and regulatory amendments, judicial reversals, reconstruction of the law, and development of a binding, compulsory mechanism similar to Internet Corporation for Assigned Names and Numbers’ domain name trademark dispute resolution system.

Shielding internet intermediaries from copyright liability—A comparative discourse on safe harbours in Singapore and India

AbstractWithout intermediaries that provide access to, host and link content, the internet will not be the vibrant place it is today. Yet with the rising number of online copyright infringements, right holders have increasingly shifted their focus to intermediaries in their efforts to curb infringements. This has led to internet intermediaries being increasingly exposed to copyright liability. In light of this, safe harbours that provide certain classes of intermediaries with conditional immunity play an important role in maintaining a healthy balance between the interests of right holders and third parties. In the copyright context, the Digital Millennium Copyright Act 1998 (DMCA) enacted in the United States was the first instance where such a safe harbour was afforded to internet intermediaries. During the two decades of the DMCA's operation, it has been used as a blueprint to shape safe harbours in other jurisdictions. This article focusses on two such jurisdictions—namely, Singapore and India—and provides a comparative and in‐depth analysis of the safe harbour frameworks in the said jurisdictions, while mapping out how they compare with the DMCA. In the process, the article highlights a number of features in the DMCA that have been remodelled in Singapore and India.

Convergence and Conflation in Online Copyright

The Digital Millennium Copyright Act (“DMCA”) is showing its age. Enacted in 1998, the DMCA succeeded in its initial goal of bringing clarity to wildly inconsistent judicial standards for online copyright infringement. But as time has passed, the Act has been overtaken—not by developments in technology, but by developments in copyright’s case law. Those cases are no longer as divergent as they were in the last millennium. Instead, over time the judicial standards and the statutory standards have converged, to the point where the differences between them are few. The statute whose ascendance was once central to the governance of copyright online is therefore now diminished in importance. At first glance, this development seems unproblematic. After all, uniformity was the DMCA’s goal, and convergence gets us closer to it. But a deeper look reveals that convergence has significantly changed the cost/benefit calculus for those whom the Act governs. The benefits of complying with the Act’s regulatory requirements have decreased, because convergence means that one can ignore the statute and rely solely on the case law. And the costs of complying have increased, because convergence has paradoxically given rise to a new, troubling phenomenon: the mixing and matching of statutory and judicial standards in unpredictable and counterproductive ways, which create new, unintended forms of copyright liability and immunity. In short, convergence has led to conflation, which means that the best course for today’s online community is to steer clear of the DMCA altogether.

Should digital files be considered a commons? Copyright infringement in the eyes of lawyers

In this article, we draw on a survey conducted with elite upcoming lawyers from all around the world to shed new light on the ethical acceptability of file sharing practices. Although file sharing is typically illegal, our findings show that lawyers overwhelmingly perceive it as an acceptable social practice. The main criterion used by lawyers to decide on the ethical acceptability of file sharing is whether or not the infringer derives any monetary benefits from it. Further, our findings show that lawyers in the public sector (including judiciary and academia) are even more tolerant of online copyright infringement than those in the private sector. Interestingly, our data suggests that this is largely the result of self-selection: lawyers who lean more on the side of broad disclosure and social sharing tend to orient themselves toward the public sector. Implications for the current state of the debate on the reform of copyright law are discussed.

How Europe Wants to Redefine Global Online Copyright Enforcement

This book chapter discusses how since the early 2010s the Europen Union continuously deviated from the original notice and takedown safe harbour model championed by the United States thereby incrementally creating its own regulatory response to online copyright infringement. The article puts the Digital Single Market Directive, and its highly contentious Article 17 (formerly 13), in a broader context of new regulatory models that have been developed in the last decade. These models not only inspired the reform but will also continue to co-shape it and complement it in the years to come. The ultimate goal is to provide a reader with a high-level analysis of the current regulatory models, including of Article 17 DSMD, and to provide a concise overview of the developments which are likely to set the tone of the discussions also abroad. When this happens, it is always useful to understand the regulatory context in which the European reform took place.

Post TPP - Should Vietnam revise Internet copyright regulations?

To cope with the proliferation of online copyright piracy, a number of para-copyright regimes have been supplemented to the traditional copyright system. Among these lie the legal reinforcement of the right to use Digital Right Management technology (DRM) by copyright holders and ISP’s secondary liability regime for copyright infringement by users. Being one of the most “modern” trade deals, the Trans-Pacific Partnership Agreement put these two regimes on the agenda with an aim to harmonize the copyright regimes among members (toward U.S. DMCA model). The suspension of four provisions on these supplement regimes in the Comprehensive and Progressive Trans Pacific Partnership Agreement is appreciated by the remaining eleven member states as it provides them with a higher level of flexibility in implementing their international commitments. For the case of Vietnam, the suspension does not mean a relief of obligations but an opportunity to review and revise their Internet copyright regulations. Based on the analysis of (i) technological, economic and legal foundations for the reinforcement of self-help remedy in the form of DRMs, (ii) experience in the development and implementation of DRM protection regime and ISP’s liability regime in Vietnam, and (iii) the meaning of the Internet copyright-related provisions in TTP; this article will provide certain policy implications for Vietnam when revising these provisions in order to (i) keep the balance between incentive to create and expansion of public access; (ii) avoid the abuse of copyright on the Internet and (iii) prepare better for the negotiation of similar modern FTA in the future.

Shadow Regulation of Online Copyright Protection and Its Implications

Shadow Regulation of Online Copyright Protection and Its Implications

The Same Problem, Different Outcome: Online Copyright Infringement and Intermediaries’ Liability Under the US and the EU Law

The Same Problem, Different Outcome: Online Copyright Infringement and Intermediaries’ Liability Under the US and the EU Law

Online Copyright Infringement and the Liability of Internet Service Providers

The internet is arguably the largest single threat the copyright law has faced since it was first introduced. Governments are constantly creating new laws to keep up with this ever-changing digital landscape. The digital piracy, which involves the illegal obtaining and sharing of copyrighted work such as music, movies, software, E-books and other written work is becoming increasingly aggressive and growing as a severe global problem. The main reason for this is the difficulty to detect the piracy members since it is online. Although, the Internet Service Providers (ISP) can be indirectly liable for the online copyrights infringements, the measurements to minimize the same have proven to be challenging

Remedies, Enforcement and Territoriality

I would like to start by thanking the Kernochan Center and all its members, in particular Jane Ginsburg, and also Rebecca Giblin, together with all the colleagues who have been involved in the conception of this Symposium. I am happy to be back after a few years: I was a Visiting Scholar at Columbia Law School in the academic year 2011 and I was very lucky to be invited to speak at the 2011 annual copyright symposium on collective rights management. I am happy to talk briefly about the implications of territoriality for online copyright enforcement measures. As it has been remarked earlier today, territoriality is a principle established indirectly in many ways by the Berne Convention.1 Territoriality also plays a central role for a number of copyright enforcement measures that have become extremely important for the creative sector in the digital environment.

Catch Me If You Can: Effectiveness and Consequences of Online Copyright Enforcement

We evaluate the unexpected shutdown of kino.to, a major platform for unlicensed video streaming in the German market. Using highly disaggregated clickstream data in a difference-in-differences setting, we compare the web behavior of 20,000 consumers in Germany and three control countries. We find that this intervention was not very effective in reducing unlicensed consumption or encouraging licensed consumption, mainly because users quickly switch to alternative unlicensed sites. We highlight that the shutdown additionally had important unintended externalities. Individuals who never visited kino.to and who additionally clicked on news articles that covered the shutdown increased their visits to piracy websites substantially. We show that this effect largely comes from articles that explicitly mention alternative websites or suggest that users do not have to fear legal consequences from unlicensed streaming. Finally, we document that the unlicensed video streaming market is much more fragmented after the shutdown, potentially affecting future interventions, at least in the short run. We argue that our results can be helpful to understand why online piracy rates are still high, despite a plethora of enforcement efforts.

Protest in Progress/Progress in Protest

Protest in Progress/Progress in Protest

Do Search Engines Influence Media Piracy? Evidence from a Randomized Field Study

Many papers in the literature have analyzed the role search rank plays in influencing user choices for the same product offered through different links. However, the literature has not analyzed whether search position can cause users to change their consumption between two ex ante distinct product categories. We analyze this question in the context of the ongoing public policy debate surrounding the role search engines can play in anti-piracy efforts. Specifically, we analyze whether reducing the prominence of infringing links can impact users choices between legal and infringing content. To do this we design a customized search engine that allows us to manipulate the positions of infringing and legal links in users’ search results. We then use this search engine to conduct experiments on a general population of users and on a subset of college-aged users. Our data show that reducing the prominence of infringing links in search results causes users who otherwise would have consumed infringing content to switch their consumption to paid legal content, and that these results hold even among users whose initial search queries express an explicit preference for infringing content. These results suggest that even small changes in the cost of discovering pirated content can have a relatively large impact on user behavior. As such, our results inform an important public policy debate by showing that search engines have a vital role to play in the fight against online copyright theft.

Cyber-Copyright-Protection Vis-A-Vis Hosting Services

The ability of contemporary technological devices allows one to capture the frame of the article in a way that not even devices installed for preventing it could recognize or stop the crime from happening. The internet being a resourceful lake of wisdom and information has housed the modalities and facilitates for copyright infringements. It has been sheltering and providing gains to the people who have resorted to the practice. The space with an objective of promoting education and information is now being used for disseminating illegally acquired properties of other, i.e., Songs, Movies (Full Length), T.V. Programmes and Software. The online copyright infringement has been completely recognized, socially but not legally. So there is a dire need to put a complete end to this game by enacting such laws where liability could be fixed and rights could be easily asserted. Resting on the fact that the internet is a marshy land for enforcement of rights and liability, the online perforation of copyrighted work has dwelled on the line the distinction between a criminal act and tortious act. Therefore, through this exposition the author would bring into light why such practice of copying should be termed as crime and not a tortious act.

Trans-Pacific Partnership Agreement Minus One and Enhanced Criminal Penalty for Online Copyright Piracy: Malaysia’s Options

The burgeoning of online piracy enables copyright materials to be routinely downloaded and exchanged for free, without any deliberate intention to infringe copyright. These acts were done for the purpose of sharing and attract no commercial value, and, hence, may not be considered as culpable criminal conduct because of the lack of intention. The Trans-Pacific Partnership Agreement (TPPA) introduces enhanced criminal provisions which are much harsher than the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) with a view to fight online copyright piracy. Even though the United States of America (US) have withdrawn from the Agreement, the other eleven countries are attempting to revive the Agreement, minus the US. The possibility of the Agreement being eventually implemented by the eleven-member countries is still real. This article examines two new criminal provisions introduced by the TPPA. The first is the criminalization of wilful copyright infringement even if carried out on a non-commercial basis. The second is the culpability of aiding and abetting of copyright offences. As these provisions are already in place in US law, reported judgments from the US on corresponding provisions would be examined. The article concludes with choices that Malaysia could consider in the event these two new obligations are implemented.

Demystifying the ‘honest’ infringer: reorienting our approach to online copyright infringement using behavioural economics

... There is an intriguing paradox at the heart of online copyright infringement: while most people perceive themselves to be law-abiding and honest,1 the practice of unlawfully downloading copyright material is widespread. In the UK, one in four Internet users consume some infringing content online,2 while in the US nearly half of all adults unlawfully share digital media.3 To the extent that online infringement displaces legal sales, this poses a serious threat to creative industries which are responsible for supporting over 270 000 businesses4 and contribute over £84 billion to the UK economy alone.5 The prevailing response to online copyright infringement among developed countries has been to strengthen and expand laws against copyright infringement.6 Particularly notable developments have been the introduction of graduated response systems and the growing use of website blocking injunctions.7 Yet, the effectiveness of these measures has been mixed. Punitive measures such as graduated response systems are sporadically enforced, and only have short-term effects in reducing infringement.8 In contrast, website blocking injunctions have had more success,9 but the cost of these injunctions often falls upon right-holders, putting them out of the reach of small, medium and micro enterprises (SMEs) and many individual creators.10

Evaluating Australia's New Anti-Piracy Website Blocking Laws

In an attempt to tackle the pervasive problem of online copyright infringement, the Federal Parliament of Australia inserted s 115A into the Copyright Act 1968 (Cth) in 2015. Section 115A essentially permits the Federal Court of Australia to order an Internet Service Provider to block access to an overseas website that has the primary purpose of infringing, or facilitating the infringement of, copyright. This article provides readers with an in-depth summary of the origins, legal context and scope of s 115A followed by an analysis of the way that it has been applied in the four cases to date. It also considers the accuracy of the two main criticisms of s 115A — that it can be too easily circumvented and that it is an improper substitute for the improved delivery of licensed copyright material to Australian consumers. It argues that copyright owners, rather than ISPs, will likely have to bear the costs of any injunction granted under s 115A and that the Federal Court of Australia has been alert to the need to balance a variety of interests in website blocking applications. This article concludes that although some criticisms of s 115A are justified, website blocking still has a legitimate role in reducing online copyright infringement in Australia.