The proverbial Pandora’s box that is opened whenever the topic of online copyright infringement is raised throws into sharp relief a host of challenges that have confounded policy makers, internet service providers and consumers for many years. Chief amongst them is how to strike an appropriate balance between protecting the rights of content owners while continuing to promote the interests of the public and preserving the benefits of the internet, given its unprecedented ability to facilitate the rapid dissemination of copyrighted content.

This challenge is not new and has remained the same even as the tools of popular choice for illegal downloading have re-incarnated over the years. The importance of achieving this balance is even acknowledged in the preamble to the WIPO Copyright Treaty of 1996.

The problem is that while striking an effective balance is the goal, that does not mean that asking how to achieve that balance in the context of online piracy is the appropriate question to pose. Balancing the interests of rights holders and end users is clearly a complex matter that does not lend itself to a single, universally accepted solution as this question would seem to imply (responses around the world to online copyright infringement support this notion). Despite this, it often is the question that is asked , even by key stakeholders in the debate—see for example the executive summary to the US Department of Commerce’s 2014 Internet Policy Task Force green paper.

Yet asking the right question is an incredibly important step in ensuring the solutions we come up with in response to online piracy are useful and appropriate in any given case, rather than haphazard and of questionable value. Given that debate around the issue has now raged on for several years, it is a prudent time to take a step back, examine developments across the globe and consider whether they provide us with an indication of how we can re-frame the fundamental question to move forward in a more cohesive fashion in the future.

Approaches to dealing with online piracy to date

In considering this, it’s useful to examine a cross-section of the approaches taken in different jurisdictions in response to online piracy. While many countries have no specific regime in place to address the issue—leaving it to rights holders to pursue potential infringers themselves under existing copyright laws—others have sought to develop a range of different solutions.

The UK, for example, originally planned to implement a regulatory scheme whereby, after a threshold number of infringement notices was sent to an end user, ISPs could be required by a court order to pass their details onto rights holders for potential prosecution. However, as with the USA’s Copyright Alert system , this was ultimately abandoned after significant pushback from ISPs in favour of a purely educative scheme (with the latter also including the possibility of potential reduction in speed or service quality for repeat infringers). France sought to adopt a more punitive approach under its controversial Hadopi law, which at first bore the threat of service suspension for repeat infringers, before moving to a purely fines-based system after the original law was considered unconstitutional and a disproportionate response to the problem. The French government also announced a shift in focus from end users to targeting sites that facilitate copyright infringement.

Australia originally had no specific regime in place to deal with online piracy, although after a sustained push by rights holders for action to be taken (given Australians are consistently argued to be amongst the highest per-capita downloaders of pirated content in the world) is now in the throes of a controversial debate about the implementation of a binding regime to enable rights holders to obtain subscriber details from ISPs after multiple infringement and education notices have been sent to them within a 12 month period (not entirely dissimilar to the three-strikes system that New Zealand has adopted). A separate law is also being considered in Australia that would enable websites set up for the primary purpose of facilitating copyright infringement to be blocked.

Moving towards a new model

These contrasting approaches suggest that it may be unrealistic to ever expect a single clear answer to emerge as to how online piracy should be dealt with across the globe. More significantly, it also suggests that the relevant question needs to be reframed from focusing on a philosophical consideration of how to strike an appropriate balance between the rights of content owners and the interests of other stakeholders in the internet ecosystem, to a more practical model that is jurisdiction-specific and takes into account a range of market-specific considerations.

In determining what that model could look like, I thought back to a presentation I delivered a few years ago at the Australian Computer Emergency Response Team’s (AUSCERT) annual national cyber security conference. During that presentation I discussed the challenges associated with attributing responsibility for unlawful conduct that occurs online given the borderless nature of the internet, and the inherent difficulty with consistently identifying and apprehending the perpetrators of such conduct in this environment. While the efficacy of investigative techniques for internet crimes continues to evolve, I argued that one way of determining where the burden of responsibility should lie for the social, financial and potentially political harms that flow from such conduct would involve a consideration of whether there were security precautions that could have been taken to mitigate the risk of that conduct occurring in the first place.

If so, the next step would be to consider who was in the best position to take those precautions, and determine the relative burden of responsibility accordingly based on whether those precautions were taken. Examples that I discussed included Denial of Service attacks, online banking fraud (with end users in both cases often having their machines compromised by cyber criminals due to a security vulnerability), and insecure software coding practices.

Applying the new model to online copyright infringement

In the case of online copyright infringement, consistently identifying the end users (or, more correctly, the IP addresses) responsible for illegal downloads is readily possible, and the risk of the infringement occurring cannot be mitigated through security precautions. Nevertheless, a modified form of this approach still provides a useful framework for considering the most appropriate way to determine where the burden of responsibility should lie in any particular instance, including whether a regulatory response to the problem is justified and what the scope of that response should be.

Specifically, consideration should be given to whether there are market failures that could be addressed in a particular jurisdiction to reduce the incentives for illegally downloading copyrighted content, and where the burden of responsibility most appropriately lies to address those market failures. If and when those failures have been addressed, then the principal burden should shift to those stakeholders who are best placed to minimize any further illegal downloads.

For example, one of the most common reasons put forward in Australia for the high levels of online piracy is that there is a failure in terms of the market’s ability to provide timely, legal and affordable avenues for accessing copyrighted content. Participants in a study by the Communications Alliance in Australia found that 43% believed that the market providing more timely and affordable access to copyrighted content would be a more effective response to online piracy than a regulatory response. The issue has most recently arisen with the HBO television series Game of Thrones, of which Australians are consistently identified as amongst the prolific pirates in the world. Previously, to watch the show legally meant paying for an expensive pay television subscription in a country where penetration rates for pay TV have remained consistently low as compared with the US. In addition, until recently access to video streaming services such as Netflix was not possible without the use of VPN tools to circumvent geo-blocking restrictions.

In such circumstances, it would appear that arguments militating against a strong regulatory response that place a greater level of responsibility on ISPs and end users are more compelling. That is not to say that educating end users on the pitfalls of online piracy becomes irrelevant. Rather, the principal burden should arguably be on the market itself to provide an adequate response that allows for more timely and affordable access to copyrighted content through legal avenues.

With the recent debut of streaming services such as Netflix in Australia, and more affordable access being made available through pay television to shows such as Game of Thrones, there is a credible argument that the market is starting to move towards providing end users with improved avenues of access to copyrighted content. Without seeking to move into a country-by-country analysis of online piracy, jurisdictions such as the UK and USA do not face the same level of market deficiencies in terms of access to affordable copyrighted content. Nevertheless, whilst per capita piracy rates of television and movie content are not as high as Australia, overall piracy rates remain significant enough to expose rights holders to substantial financial loss.

In each case, given that the market either has or is in the process of adjusting to the needs of end users to access copyrighted content, it may be entirely more justifiable to consider an approach to online piracy which imposes a higher level of binding responsibility on other participants in the internet ecosystem such as end users, website operators and service providers.

A new way forward in the debate

In reality, where a particular country ends up on the spectrum of different approaches to online piracy will also depend on the influence of and relationship between different stakeholders in that jurisdiction. Nevertheless, re-framing the entire online copyright infringement debate as one that examines whether the relevant market is functioning appropriately to provide timely and affordable access to copyrighted material—prior to considering the level of responsibility that other stakeholders in the internet ecosystem should assume for the problem—is an important step.

Focusing on this question provides a valuable framework for determining an appropriately tailored solution to the problem that takes into account the specific circumstances of a particular jurisdiction. This is likely to lead to more effective outcomes and less of a ‘trial and error’ approach that seems to have dictated the debate to date.