Trisha Meyer

Graduated response and the emergence of a European surveillance society

Purpose – This paper seeks to offer an alternative critique to graduated response, a warning and sanction mechanism aimed at fighting online piracy.Design/methodology/approach – This paper reflects on and frames graduated response in terms of theories on surveillance society and code. In particular, it analyses the graduated response debate in the European Union and the current initiatives in France and the UK.Findings – The paper argues that graduated response portrays rights holders as being in a state of emergency, is a form of social sorting, and has a technological bias.Originality/value – This paper contends that many objections raised to graduated response have been reduced to issues concerning the procedure rather than the principle, and that important societal questions concerning graduated response remain un(der)explored.

The Internet Versus Copyright

This chapter provides theoretical insight into power relations in the field of online copyright enforcement. It studies the history, rationales and discourses of the Internet and copyright. The history of the Internet and copyright teaches us that choices are continually made in the development of a technology or policy. Further, this chapter analyzes the costs and benefits of copyright infringement. Piracy causes loss in the media industries, but benefits other parts of the economy. Digitization and the Internet challenge the creation of artificial scarcity. Finally, the chapter explains the political and legal reality of online copyright enforcement policies. Online copyright enforcement policies are likely to be framed as extensions of existing offline approaches.

Anti-Counterfeiting Trade Agreement: 2010–2012 European Parliament Discussions

This chapter presents the empirical findings of the case study on the 2010–2012 European Parliament discussions on the Anti-Counterfeiting Trade Agreement. ACTA is a multilateral trade agreement aimed at enhanced international cooperation on IPR enforcement. It was negotiated outside of traditional policy venues and goes beyond international standards. ACTA’s lack of transparency is strongly criticized. In the European Union, the Anti-Counterfeiting Trade Agreement is a battle of institutions. The EP’s consent rules for trade agreements polarize stakeholders’ views. Choices were limited to either ratify or reject ACTA. In the end, ACTA’s opponents win. The Treaty is rejected. The rejection of ACTA is an example of citizens stepping up, questioning policymaking and valuing the Internet as a public sphere.

E-Commerce Directive: 2010 European Commission Consultation

This chapter presents the empirical findings of the case study on the 2010 European Commission public consultation on the Future of Electronic Commerce in the Internal Market and the Implementation of the Directive on Electronic Commerce. This case study is about the role and consequences of Internet intermediaries intervening in the network. Stakeholders share a common ambition to clarify rather than revise the Directive’s limited liability provisions. Tensions between the E-Commerce, IPR Enforcement and Copyright in the Information Society Directives are clear. Intellectual property rights are regarded as both a policy problem and a solution in the EU’s pursuit for competitiveness, jobs and growth in the digital single market. The policy outcome of the consultation is limited. High polarization leads again to a political stalemate.

HADOPI: 2009 Graduated Response in France

This chapter presents the empirical findings of the case study on the 2009 French HADOPI laws. France was the first European country to pass legislation introducing graduated response to deter online copyright infringement. Internet users are monitored and when caught infringing copyright are repeatedly warned and ultimately risk receiving a sanction. In France, graduated response is advocated as a soft and pedagogical approach to online copyright enforcement, compared to the harsh legal sanctions provided against counterfeiting. Media stakeholders “win”. They see their viewpoint valorized and are given power to surveil Internet users. The French graduated response policy adopts a proprietarian view on creativity and moves toward a nationally regulated Internet environment.

Creative Content Online: 2008 European Commission Consultation

This chapter presents the empirical findings of the case study on the 2008 European Commission public consultation on Creative Content Online in the Single Market. Creative Content Online illustrates the difficulty to reach an agreement on online copyright enforcement, even—or perhaps especially—in a context where there is no legislative proposal on the line. It is a battle of ideas. Stakeholders compete on an equal basis, advocating their views through consultation contributions. They are given freehand to determine European Commission policy. It could be argued that Internet & technology companies, consumers and authors & performers “win” this round, as they gain productive traction. The European Commission aims for widespread availability of creative content in the EU and takes up the issue of creators’ remuneration.

Lessons Learned: Online Copyright Enforcement in the European Union

This chapter explains the intense conflict and resulting stalemate on online copyright enforcement in the European Union. It answers the study’s research questions, points to policy implications, theoretical/analytical lessons learned and avenues for future research. Stakeholders’ approach to knowledge creation and stance on the role of copyright and the Internet in society determine their positions on online copyright enforcement. Further, interests of media and Internet & technology industries are opposed, but civil society can be successful in demanding change. Stakeholders select institutional rules and settings that support their views best. Proponents of strong online copyright enforcement call for use of technology to govern. Opponents point to the importance of the Internet in everyday life. The Internet is an enabler but also a target of regulation.

Access and Control. The Political Economy of Online Copyright Enforcement in the European Union

This paper presents the main results of this author’s doctoral research on recent policy initiatives dealing with the online enforcement of copyright in the European Union. Strong online copyright enforcement is subject to intense policy debates in the European Union. Of the five policy initiatives analyzed, two pass into law (2009 French and 2010 UK graduated response laws), two result in stalemates (2008 Creative Content Online and 2010 E-Commerce Directive consultations) and one is rejected (2011 Anti-Counterfeiting Trade Agreement). At the level of the European Union, online copyright enforcement policies hardly change. At the level of certain member states however, strong enforcement policies are adopted. This paper claims that the outcome of the policy initiatives is determined by an intricate interplay of ideas, discourses, interests and institutions. Policy stakeholders compete to see their ideas and interests adopted into policy. This study argues that their views on creativity and knowledge and stances on the role of copyright and the Internet in society determine their ideas and interests on online copyright enforcement. Analysis of the cases also reveals that the meager outcome of the online copyright enforcement initiatives at the level of the European Union is due to the lack of common interests between the media and Internet & technology industries. Currently, the Internet & technology industries have little incentive to proactively enforce copyright online. At the same time, the cases indicate that civil society actors succeed in giving pushback on online copyright enforcement policies. In the Anti-Counterfeiting Trade Agreement, they even reverse European Union plans. Finally, stakeholders cunningly choose institutional rules and settings that favor their views. In the online copyright enforcement debate, copyright is often portrayed as opposed to intermediary liability rules and fundamental rights. This picture is painted too starkly black and white, but it is true that the role of Internet intermediaries in intervening in their networks is at the crux of the debate today. This study raises concern about the use of monitoring, blocking and filtering technology to regulate the availability of creative content.

Foresight Services to support strategic programming within Horizon 2020

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