Dr Rebecca Giblin, Senior Lecturer in Law at Monash University has just published 'Evaluating Graduated Response', a paper which examines the evidence behind claims by major rightsholders that ‘graduated response’ schemes are successful and effective.
Graduated response (or ‘three strikes’) schemes have been implemented in a number of countries as an attempt to deter unauthorised use of copyright material. They involve consumers alleged to have infringed copyright being sent a series of notifications, warning them they are alleged to have infringed copyright, plus additional information on how to secure their Internet connection and details of legal alternatives. Repeat-infringers risk intermediate technical measures such as bandwidth reduction, protocol blocking and, in a worst-case scenario, temporary account suspension.
Major rightsholders claim that these schemes are an effective means to combat online copyright infringement and continue to lobby for similar schemes to be implemented in new jurisdictions.
Dr Giblin’s paper examines schemes in operation in France, New Zealand, Taiwan, South Korea, Ireland and the US, as well as the UK’s proposed scheme and evaluates the extent to which the global graduated response is helping to achieve any of several distinct aims that are often put forward to justify the grant and expansion of copyright (while being agnostic as to which, if any, should be preferred). Thus, it asks:
- To what extent does graduated response reduce infringement?
- To what extent does graduated response maximize authorized uses?
- To what extent does graduated response promote learning and culture by encouraging the creation and dissemination of a wide variety of creative materials?
Dr Giblin finds that, judged against these measures, there is little to no evidence that graduated responses are either 'successful' or 'effective' on any measure. She also notes that the content industries are far from facing existential threats from unauthorised use and sharing of copyright material online. Rather,
"IFPI recently reported that the global music industry 'has achieved its best year-on-year performance since 1998.' The movie industry has broken its record for worldwide box office receipts for the last seven years straight. A recent study found copyright-intensive industries to be significantly more profitable than their equivalents in the construction, transportation, mining and metals sectors. And there’s growing evidence that new business models based on providing reasonable access to legitimate content are both reducing infringement and substantially increasing legitimate markets. However, there is no evidence that any of these outcomes have been caused by the introduction of graduated responses."
As such, Dr Giblin’s analysis casts into doubt the case for implementation of any future graduated response schemes and suggests that existing schemes should be reconsidered, as has recently occurred in France.
The full paper is available for download from SSRN.