Seventh

Annual Internet Governance Forum Baku, Azerbaijan Sustainable Human, Economic and Social Development
Workshop No. 169 Internet Policy Infrastructure for Sustainable Internet Development: Lessons from Attempts at IP Enforcement
(7 November 2012) By Konstantinos Komaitis, Policy Advisor, The Internet Society

Participants: Konstantinos Komaitis, The Internet Society Susan Chalmers, Internet NZ Kevin Bankston, Center for Democracy and Technology Desiree Miloshevic, Afilias David Hughes, Recording Industry Association of America Trevor C. Clarke, World Intellectual Property Organization Pedro Less Andrade, Google

Summary of Discussions The workshop sought to address the various enforcement methods of intellectual property rights that have emerged both domestically and internationally and, have rapidly taken center stage in the Internet governance debate. In this regard, some examples the panelists used in their contributions included: the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA), both of which were experienced in the United States; and, the Anti-Counterfeiting Trade Agreement (ACTA) and the Trans-Pacific Partnership (TPP) Agreement at an international level. During the session, panelists were asked a set of questions to answer and some issues to address. The questions and the key points that came out of the panelists responses were as follows: o Q: What challenges and/or opportunities content creators face in the current Internet and intellectual property environments? Is the situation different for amateur and professional content creators?

Key points: Generally, professional creators have more at stake given that their livelihood depends on the revenue of their work. However, at the same time, the Internet offers new ways to monetizing content and new ways of distribution. Additionally, the Internet offers great cost reductions associated with new ways of distribution. Finally, in terms of amateur content, the Internet further opens up new possibilities to generate content revenue a clear example of this is Kickstarter. o Are traditional IP laws still appropriate for todays environment? Do they support or hinder innovation or both?

Key points: Some panelists expressed the view that the existing (copyright) regime is sufficient, at least in most developed nations, and it is not required to change. The main problem appears to be that many of the copyright laws are not enforced, which makes these laws meaningless. To this end, unenforced laws can act as hindrance in that they may affect the quality of content. The result is less creation and less innovation. And, unenforced laws are also an indication of a weak government, which is, additionally, a sign of instability. Other panelists expressed their concern with some enforcement mechanisms, especially those resulting to disconnecting users from the Internet. They acknowledged that this is an extreme solution and more work needs to be done in relation to intermediary liability, fostering the creation of new platforms and exceptions. Some panelists argued that the modern copyright regime both supports and hinders innovation. All the enforcement efforts currently in place and supported by the movie and music industries have given birth to a brand new industry an industry of monitoring file-sharing networks. The counter-monitoring measures that we see spring up in response to these enforcement efforts are part of this innovation. Finally, end-users and younger users also innovate by identifying (technological) ways to bypass geo-blocked content. Finally, some panelists asserted that, when it comes to copyright, we depend too much on the law. The law is necessary and, will always be necessary, but should not be relied on as the only mechanism for dealing with the complexity of copyright infringement. o How do Internet intermediaries contribute to sustainable Internet development? What role if any should they play with respect to intellectual property?

Key Points: Some panelists asserted that Internet intermediaries can provide the platforms to help the industry flourish online; they can also collaborate with the copyright industry regarding authorizations of copyright infringement. When it comes to the latter though, the main issue is not to turn intermediaries into the police or the judge of the Internet. Due process is necessary and should be preserved in any context. Other panelists argued that intermediaries contribute to development by providing platforms to innovate without permission. To this end, safe harbor provisions are necessary in order to ensure that intermediaries do not move to an over-blocking approach, thus ensuring the vitality of their platforms. And, to achieve this goal, voluntary mechanisms are better than mandatory laws, although transparency, across all the levels, is necessary. o What lessons if any have legislative proposals like ACTA, SOPA, and PIPA taught the Internet community, the content industry, lawmakers and others?

Key Points: It was suggested that the issue was not whether one could block websites (governments block websites related to child pornography or Nazism), but whether the technology and Internet architecture would support such an approach. The majority of the panelists argued that the main lessons coming from all these failed legislative attempts related to transparency, accountability, issues of trust and, very importantly, multistakeholder participation. They argued that issues affecting the Internet, its technologies and platforms should be deliberated under a multistakeholder model that allows the participation of all interested parties, including governments, technology companies, civil society groups and content creators.

What types of governance should be employed to tackle issues of intellectual property?

Key Points: All panelists answering this question agreed that there is a great need for multistakeholder governance when it comes to intellectual property. Currently, intellectual property is one of the areas where policy development is not occurring through a true multistakeholder participatory model, thus creating issues of transparency and accountability. To this end, it is essential we also identify forums where such multistakeholder process can take place. o Do laws need to be changed to deal with intellectual property environment?

Key Points: In answering this question, one panelist asserted that it really depends on what we mean by change. There is an apparent need for a review of the copyright regime; but, the tension that currently exists between copyright and the Internet is not only about law. Other issues that equally need to be taken into consideration include issues of cultural change the way people react to the Internet and react to copyright simplification of law and, improvement in the infrastructure the way the data is managed in the global environment. o What, if any, is the appropriate role for technical solutions (e.g. automated response mechanisms) to tackle copyright infringement?

Key Points: One panelist suggested that automated (technical) solutions are very helpful, as sometimes it is the only way to process the vast amount of requests and handle incredible amounts of data. The advantage of automated solutions is that they are very objective. Another panelist added that, although it is necessary for intellectual property abuses to be dealt with effectively, we also need to be very mindful when we implement automatic takedown procedures, as they could seriously undermine the stability of the Internet and put pressure on intermediaries. Finally, one panelist argued that the answer to the machine is the machine. o Is domain name blocking and filtering an effective tool for intellectual property rights enforcement? What would be the best approach for a domain name that contains a mix of lawful and infringing material?

Key Points: In addressing this question, all panelists were of the view that there are issues of proportionality and due process that should be taken into account. Proportionality should be used as a measurement against infringing and non-infringing content as should due process. And, due process is not only limited to design, but it expands to substance and should be used a criterion for making determinations between legal and illegal material. o Could forms of copyright enforcement provide new tools or justification for censorship and surveillance by authoritarian regimes?

Key Points: According to one panelist, the crucial question is the way we implement tools to deal with copyright infringement. Additionally, another important point is that of accountability concerning the takedown requests. A copyright owner should be accountable for the (mistaken) requests they send out to users.

Given the global nature of the Internet do we need international intellectual property laws or something else?

Key Points: One panelist suggested that the great challenge is the conflict between the territorial nature of intellectual property laws and the global nature of the Internet. All Treaties that guide the foundation of copyright law internationally are negotiated across borders and, the limited rights that are established during these negotiations will have to be revisited. However, there is a foundation that should not be eroded; this foundation relates to why these laws have been put in place in the first place. o Are there alternative business models, like pay what you want, that can support creators and innovators without requirement for additional enforcement mechanisms?

Key Points: (Alternative) business models existed for a long time so the discussions about them are not new. One of the issues identified, was that for new business models to flourish, we need to create an inviting ecosystem, which does not appear to be the case currently. One of the hurdles is the licensing scheme that exists both within the European Union and internationally, which needs to be streamlined so that copyright content can travel without too many restrictions across borders. Concluding Comments This workshop demonstrated the value of multistakeholder participation not only from a structural point of view but also from a practical point of view. The conclusions of the panel focused on the need to continue the discussions in a true multistakeholder fashion that facilitates the exchange of ideas and knowledge.