Copyright enforcement principles

In a recent publication with Ericsson, we call for more principled development of copyright law and, particularly, greater emphasis on creating cheap, easy, and quick legal distribution channels (as opposed to harsher, cheaper, and quicker enforcement mechanisms).

Most of this is pretty straightforward – we need more evidence in our policy development. Importantly, however, we need to think harder about how we can create efficient and attractive solutions for people to actually access copyright content, rather than focusing on three-strike regimes and similar developments.

A one sided approach which enforces copyright at the expense of all other stakeholders and the digital competitiveness of nations is not the cure for the problem nor a treatment of the symptoms. Economic history has already taught us well that a monocausal explanation of complex processes and hence one-sided solutions will not work.

Any future copyright enforcement policy should be developed from a clear and evidence-based approach. An approach that carefully balances the incentives and rewards provided to economic rights holders against fundamental rights of privacy, self-expression, due process and the user rights embodied in copyright law to protect
access, learning, critique, and reuse.

Future enforcement policies should be proportional and flexible recognizing that historical rates of copyright infringement and the decline in physical sales, may also be a reflection of market conditions, various forms of access barriers, failed strategy and increased competition from; lawful digital distribution services, other platforms such as Music in TV and Gaming) and live performances – all legitimately displacing physical sales.

This paper suggests that, adequate enforcement measures are certainly part of a solution to a well functioning lawful digital market. However, enforcement alone can never
solve the root cause of unlawful file-sharing, since it utterly fails to address supply-side market barriers. Focus on enforcement measures alone continues to leave out a
legitimate but un-served market demand, susceptible to unlawful alternatives. A competitive and consumer friendly digital content market and an appropriate legal framework
to enable easy lawful access to digital content are essential preconditions for the creation of a culture of lawful, rather than unlawful, consumption.

Rene Summer, Nicolas Suzor, and Patrick Fair, ‘Copyright Enforcement in the Networked Society: Guiding Principles for Protecting Copyright’ (2011, Ericsson).