Graduated response scheme: New tool against infringers

By Madhu Chaudhary and Abhishek Kale, Naik Naik & Co
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In an attempt to curb online copyright infringement, copyright owners are increasingly seeking to enlist the assistance of internet service providers (ISPs) to enforce copyright and impose sanctions on those who abuse it. This has led to the new concept of a graduated response scheme (GRS), which is an alternative mechanism to fight internet piracy.

Madhu Gadodia Partner Naik Naik & Co
Madhu Gadodia
Partner
Naik Naik & Co

GRS relies on cooperation with an ISP that goes beyond the standard “notice and take down” approach. GRS generally requires that an ISP take action against users suspected of infringing copyright, ranging from issuing a warning, to collating allegations made against subscribers and reporting to copyright owners, to suspension and eventual termination of service.

Access and service providers play a decisive role in GRS, as without their co-operation it would be difficult, if not impossible, to collect the IP addresses of infringers, or to terminate access for repeat offenders after due notice.

Necessary step?

There are two main arguments for the introduction of GRS. First, it is cheaper than other enforcement mechanisms that could stem the tide of copyright infringement. Second, ISPs have a social obligation to participate in the enforcement process because they otherwise derive an unfair benefit from infringing behaviours on their networks.

The push for GRS comes as copyright holders begin to move away from the strategy of suing individual file sharers, which has been widely criticized as both ineffective and unfair. The dispute resolution systems of organizations such as the Internet Corporation for Assigned Names and Numbers have holes which could be filled with the assistance of GRS.

GRS has been or is in the process of being implemented in various forms around the world: through court-sanctioned contractual arrangements in Ireland; by administrative and ministerial order in South Korea; by industry code supported by legislation in the UK; and by judicial determination supported by administrative bodies in New Zealand and France.

India has not yet implemented or given statutory recognition to GRS although it recently issued IT (Intermediaries Guidelines) Rules, 2011.

Pros and cons

While GRS is spreading it has also attracted some strong criticism. The United Nation special rapporteur on the promotion and protection of the right to freedom of opinion and expression recently released a report that examines freedom of expression on the internet. The special rapporteur considers cutting users off from internet access to be disproportionate and thus a violation of the International Covenant on Civil and Political Rights, regardless of the justification provided, including violation of intellectual property rights. In particular, the special rapporteur urges states to repeal or amend intellectual copyright laws which disconnect users from internet access, and to refrain from adopting such laws.

Abhishek Kale Senior associate Naik Naik & Co
Abhishek Kale
Senior associate
Naik Naik & Co

The European Parliament has inserted a provision into its telecom reform package which provides that GRS may only be imposed if it is appropriate, proportionate and necessary. This requirement seeks to ensure that GRS is a reasonable and justifiable method to deal with users who download copies of copyright music, films and television products for personal uses and therefore commit copyright infringement.

If termination of internet access can be justified as appropriate in the abstract, we must still examine whether action against an individual is justifiable in a particular case. Even if termination is considered to be legitimate for severe cases of infringement, it will likely be wholly inappropriate for minor cases. Whether and how well GRS can differentiate between these extremes and impose appropriate penalties for the bulk of cases will be an important factor in evaluating its legitimacy.

Given the severity of graduated response as a penalty, much care needs to be taken to ensure that it is a reasonable and proportionate means of achieving a justifiable end and protecting copyright holders. What is essential is maintaining balance between one’s copyright and one’s freedom of expression and speech along with right to privacy.

The termination of a person’s internet connection is likely to have a significant impact over a large range of the activity of members of modern society. Regardless of the form that GRS takes, it should incorporate a fair and impartial procedure with a presumption of innocence.

Allegations of copyright infringement should be subject to regular scrutiny and some form of deterrent should be introduced to limit the sending of false or defective notices. All of the facts and ways to modulate and implement an internet suspension have to be taken into account when assessing whether a particular form of internet suspension is a proportionate and appropriate response to fight against copyright infringement.

Naik Naik & Co, founded by Ameet Naik, is a full-service law firm with specific focus on entertainment, real estate, retail and technology. It has three offices in Mumbai and one in New Delhi. Madhu Chaudhary ([email protected]) is a partner and Abhishek Kale ([email protected]) is a senior associate at the firm.

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