As the seemingly endless music related copyright public policy debates continue, attention is focusing more on the need for an increased Interactive Service Providers (ISPs) role. Many stakeholders and observers believe the key to a more robust global commercial music environment is for ISPs to become more pro-active in copyright enforcement and commercial matters. Three topics, in particular, seem to touch on this new ISP focus:
Graduated Response Programs: France is the first European country to pass a comprehensive graduated response law. While there has been criticism in general leveled at those in the copyright community promoting this form of behavior modification, graduated response has been generally accepted as a common sense approach offering the right balance of ISP involvement, government involvement, and user sanctions.
Nevertheless, as with all programs of this type involving government collaboration with private industry, and more importantly those involving notices sent to the public, certain procedural glitches sometimes lead to some temporary public push-back. Notwithstanding, France should be able to adequately address the procedural concerns raised by critics of their program.
In the UK, the Digital Economy Act contemplates adoption of a more benign GRP approach. The bill is still working its way through the courts, and certain political realities – e.g., the recently released, purportedly anti-copyright Hargreaves Report – may prove to be significant impediments to implementation of a robust program.
A key question is whether GRPs should be imposed on the industry by government (the French law) or adopted by the industry through voluntary arrangements with music industry stakeholders (as the recording industry in the US is exploring). Certainly, a negotiated voluntary program would impose more intermediary and less draconian enforcement and behavior modification measures, which could include limiting the speed or other capacity of the service to the user, preventing use of the service to gain access to infringing material, and suspending the subscriber’s service for a relatively short period of time. Even with these more benign approaches, proponents of a GRP will still have to address other political concerns like net neutrality.
ISP Tariff: U2 manager Paul McGuinness has been the most high profile proponent of an ISP tariff, but others have also discussed the idea of imposing an ISP tariff on subscribers that would, in this age of rampant piracy, help offset the financial damage to creators and copyright owners. Most assuredly, this would have to be implemented on a voluntary basis by any ISP.
Voluntary Copyright Enforcement Measures: ISPs have claimed in the past that technological impediments have prevented them from engaging in proactive forms of policing their services for infringing material. New technological advances in filtering, however, make the ISP arguments on this point less compelling. In the future, ISPs should, arguably, incorporate the most advanced form of filtering or other technical enforcement measures available.
These points, and others, will most assuredly push the debate about how, and to what extent, the ISPs will play a role in the future digital music landscape.
*Jay Rosenthal is Senior Vice President and General Counsel at the National Music Publishers’ Association. The views expressed in this commentary are not the views of the NMPA. They are solely the views of the writer.
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