THE current case of Internet users being hounded for allegedly downloading the Dallas Buyers Club movie is an example of a shotgun approach to legal tactics that can only backfire.
We, at the Internet Society, believe that the current case presents a good chance to reflect on some developments for future improvements in the protection of intellectual property rights in a world of sharing, streaming and downloading, where innocent Internet users can continue to use the Internet without fear.
To be clear, we agree that illegal downloading of copyrighted material cannot be condoned. Such infringement deprives creators of their just rewards for their creative works.
If creators are not suitably incentivised to create content for the rest of us, we would soon be left watching only videos of cute kittens and baby antics.
The Dallas Buyers Club case, however, raises alarm about the threatened penalties for infringement. We advise that these tactics will not be effective for three reasons.
- THE COURTS NEED TO PROTECT INNOCENT SUBSCRIBERS
WHENEVER such letters demand details from multiple subscribers, the court should play a supervisory role. In Australia, a court allowed disclosure of subscriber details, but required letters to be issued under supervision of the court.
In Singapore, we have a similar court process for the disclosure of subscriber details known as preaction discovery. In a 2004 case, Justice Belinda Ang ruled "the court had a duty to ensure that any application for pre-action discovery was not frivolous or speculative and that the applicant was not on a fishing expedition".
The courts already require a supervising solicitor to be present when injunctions or search orders are issued - to ensure that orders are properly carried out.
In a wide action such as this, involving the details of a substantial number of individuals, the courts and other regulatory bodies such as the Law Society can take an active role in ensuring that this information does not fall into the wrong hands and is not wrongly exposed. This will especially protect the personal details and privacy of innocent Internet users.
Some commentators have queried whether three days given in the letters was sufficient time for a lay person to respond, and whether lawyers were permitted to allege the commission of criminal offences or to threaten criminal proceedings. The letters viewed by members of the Internet Society had hinted at the possibility of criminal sanction as a result of sections 136(3) and 136(3A) of the Copyright Act. We hope that the Law Society will advise whether it is appropriate to do so when the letters do not present facts that show these alleged criminal offences.
- SUBSCRIBERS ARE NOT THE SAME AS DOWNLOADERS
FROM reading a sample of letters sent to subscribers, we note that the copyright owners have been unable to ascertain whether the subscriber is the person committing the acts of infringement, or whether the acts complained of were of downloading, sharing or both.
The distinction is crucial. Where the acts complained of include sharing, then the prevailing view is that Section 136(3) might come into play. However, when the act is merely downloading, the position is less clear, even though it might constitute infringement.
Even more critical is the difference between a subscriber and an infringer. A subscriber of an Internet service may not be an infringer; it could be his friend who was allowed to use his network on the understanding that no illegal activities were to be carried out, or someone unknown who obtained access through an unsecured Wi-Fi network.
There is no legal precedent to suggest subscribers are liable merely for acts committed on their Internet accounts. In fact, it flies against the exceptions in the Electronic Transactions Act and the Copyright Act, which give exemption from civil and criminal liability to network service providers who merely provide technical means to access Internet content to persons they do not have control over.
The liability of intermediaries is an important concept of the Internet in properly allocating liability and it is crucial to clearly demarcate that subscribers who are not infringers should not be automatically liable for infringing acts of others.
- EASY ACCESS TO MOVIES IS BETTER AT BEATING PIRACY THAN SUING
ACCESS to good content is one area where copyright owners need to do better. Singapore is a tiny and troublesome market for content owners because of our censorship system. But with the Internet reducing the costs of distribution and customisation, there is no good reason for content owners to restrict distribution of contents to Singapore. If Singaporeans have easy and cheap access to premium content streamed at HD quality, few would want to consume a low-quality copy. And with the Asean Economic Community becoming a reality by the end of the year, might it not make sense to look at distributing content to all 10 markets based on the censorship standards of Singapore? Already, movie studios based in Singapore have found a welcoming market in China because the Chinese feel our censorship standards are comparable to theirs.
Internet users, especially the younger ones, are used to the idea of FREE. Free games, free chats, free contents. More effort needs to be expended to educate Internet users that content is not cheap to produce. And good-quality content is even more expensive to produce. If they want to continue to enjoy access to great content, they must play their part to sustain the ecosystem that produces the content they want.
Education is also key not only in reducing copyright infringement, but also in empowering Internet users to know their rights. Three days is insufficient to seek the necessary legal and other advice to respond. Cases like this are rare and more knowledge of legal rights could level the playing field.
Challenge to IP owners
FINALLY, the Internet Society would like to restate our stand that we fully respect and support protection of intellectual property (IP) rights. It is arguable that the Internet would not have come into being and flourish without a strong system protecting intellectual property.
But the Internet is also a very powerful and fast disruptor of existing business, production and distribution models. Incumbents who are seeing their market share and profits eroded because of the Internet should not seek to hold on by using shotgun approaches. Instead, they will benefit the most if they embrace the innovation and disruption by taking on the competition head-on.
So, the Internet Society's challenge to all intellectual property owners out there is this: Stop spending your shareholders' precious investment on legal actions which will not actually advance your interests, but merely stifle the widespread Internet use that could build your future business.
Instead, build a more solid business by using the money on more research and development to better understand your customers' needs and figure out a way to delight them using the technologies of today and the future.
Harish Pillay is the president and Professor Ang Peng Hwa is the vice-president of the Internet Society Singapore Chapter - isoc.sg
- SEE SINGAPORE