Evaluating Graduated
Response
Rebecca Giblin
Monash University - Faculty of Law
September
6, 2013
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2322516
Abstract:
It has been more than three years since the first countries began
implementing 'graduated responses', requiring ISPs to take a range
of measures to police their users' copyright infringements.
Graduated responses now exist in a range of forms in seven
jurisdictions. Right-holders describe them as 'successful' and
'effective' and are agitating for their further international
roll-out. But what is the evidence in support of these claims?
After providing a detailed snapshot of the structure and
application of graduated response schemes in France, New Zealand,
Taiwan, South Korea, the U.K., Ireland and the U.S., the paper
synthesizes the available evidence regarding the efficacy of the
various arrangements, and then evaluates the extent to which they
are actually achieving the copyright law’s aims. Of course, as the
work acknowledges, it is impossible to identify any one unifying
target or rationale. Accordingly, the paper 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:
1. To what extent does graduated response reduce infringement?
2. To what extent does graduated response maximize authorized
uses?
3. To what extent does graduated response promote learning and
culture by encouraging the creation and dissemination of a wide
variety of creative materials?
The analysis demonstrates that, judged against these measures,
there is little to no evidence that that graduated responses are
either 'successful' or 'effective'. The analysis casts into doubt
the case for their future international roll-out and suggests that
existing schemes should be reconsidered.
Number
of Pages in PDF File: 61
Keywords:
copyright, ISP liability, tertiary liability, infringement,
United Kingdom, South Korea, New Zealand, United States, Taiwan,
Ireland, France, Hadopi, infringement notices, enforcement
JEL
Classification: O34, K00
working papers series
Date posted: September 8, 2013