The Effectiveness of Notice Sending and Enforcement Alternatives
Mike Weatherley
Former MP and IP Adviser to the British Prime Minister
Good afternoon everyone.
For the purposes of this session I am going to break this topic down into three key headings if I may.
The first is the notifications to the end users.
The second is the notices sent to the ISPs and Search Engines to take down infringing sites.
And the third is the alternatives.
The easy answer to the effectiveness of items one and two is that it is not effective. But I will argue that it is important to do it and part of an integrated approach to piracy.
Let me step back a touch. When I was elected as an MP in the UK, as a new member of parliament the most common question was ‘What did you do before becoming an MP?’. Most people would say ‘banking’, or ‘lawyer’, or ‘Health service’ – but I used to reply – involved with IP. And I was shocked by the responses I got. The vast majority of MPs and other staff had no idea what IP was – one MP even asked me how do you spell IP! And the very few that did know what it was were generally bored by it and had a general passing opinion that it was (a) too complicated (b) not as important as the NHS or Banking sectors and (c) probably OK as we were anyway.
I was appalled. I certainly hope I do not have to explain in this room why having a robust IP protection policy in place is important, but I set about making it something Parliament should care about.
The Prime Minister noticed all this activity and in 2013 he asked me to be his personal adviser on all things IP.
Now, imagine if you will, a private audience with the British Prime Minister, who is running between meetings with just 4 or 5 minutes to spare, and you are asked the seemingly easy and obvious question: ‘What do we need to do in relation to IP?’.
Great. Here is your one opportunity to make important recommendations to someone who really can make a difference. Most in this audience, and also more generally involved in the world of IP, will daily come across improvements or suggestions to further protect Intellectual Property Rights Holders. So please pause here and daydream about your answer. Try and put your answer into 4 minutes. Oh, and also have an eye to the electorate – the answer must be practical and acceptable to the public as well – many of whom have no idea what ‘IP’ stands for (if MPs have no idea what IP is the average person in the street is even more baffled by it all)
The answer is not as easy as it seems.
I have asked this question dozens of times to many different audiences and I am sorry to say, most responses are very wide of the mark as to what is required. Answers such as ‘Strengthen rights’, or ‘tighten legislation’ may be conceptually correct but the Prime Minister does not want concepts, he wants concrete suggestions that can be enacted. After all, he is asking you as the expert with the facts. He is someone who wants to instruct his Civil servants – who will know very little about IP- on specifics, not ethereal ‘hope’ messages.
And what is worse, the IP Rights holders still do not campaign on the big ticket issues, preferring to argue about nuances such as the Private Copying exception or ‘fair use’. Those points are of course important in the mix, but the big picture and the main targets are missed.
For me it is about two groups that all IP legislation needs to be aimed at. The first is those that create the illegal product and make huge sums of money out of illegal web sites – be that physical counterfeiting or online streaming. Stop those creating the sites and in particular the money to those sites and we are well on course to winning the battle against Piracy. The second group of people to be targeted are those in society that create the demand for online illegal services. They need to stop illegal activity on the internet or face the consequences. Which is where the notices come in – both to the public and those that have public facing sites.
The Prime Minister made it clear in our chat that the last thing he wants to do is to start at the back end, targeting the errant teenager that downloads a few tracks. Sure that is important but we need to get to a position where this is (a) not possible and (b) undesirable.
So in my answer I suggested that we need to beat Piracy by a three step solution: Education, Carrot, Stick
1) The first step is Education. We have lost the ‘hearts’ of the public who have become used to downloading for free and buying replica goods. Most do not see the harm they are doing – and we all know the arguments they use like ‘I wouldn’t have bought it anyway’ to ‘they are rich and can afford it’. As I say, I am sure I do not need to set out here why those arguments are wrong – but we do very much need to win over the general population. We are a long way off this.
2) The next is Carrot. Industry – especially the music industry – was very slow to adapt and embrace new marketing models. Streaming for example was seen as evil and to be resisted. However, this is a mistake. When I speak to University students and ask why they were downloading from illegal sites their answer was simple: It was easy and user friendly. Legal streaming websites for music and film need to be much simpler, faster and have much wider content licensed than their illegal counterparts. Ignore the consumer preference at your peril – consumers have a way of telling suppliers how they want product delivered. And at what value. The ‘carrot’ is getting much better I have to say. Too slow and too late possibly, but it is getting better.
3) And then, once we have won the argument as to how counterfeiting ruins long term products and we have the right business models in place, then of course there needs to be ‘stick’. Especially when dealing with large scale criminality.
How we get through these stages – what Government can do about it – was my task and I produced 4 reports for the Prime Minister with 36 recommendations.
4 reports for the Prime Minister
A) Search Engines. I started with the highest profile of first step solutions – Search Engines, and produced my first report in May 2014: ‘Search engines and Piracy’. Search engines are often cited as the evil opposition. After all, many say they destroyed SOPA by mobilising the population and holding the internet to ransom. The argument goes that without the direction to an illegal site, the world would be a perfect place. Certainly I agree that the search ranking of illegal sites should be demoted (and actually I would go further and say that if the court has decided a site is illegal, it should not appear anywhere on search results), and the Search engines could do much more on this, but let us not forget that they are not actually the bad boys when it comes to stealing IP. They do not create the illegal content and they do not consume the illegal content. Sure they could do better, and sure they shouldn’t make money from any illegal activity, but there is so much more to do to beat piracy than simply looking to the Search engines as the ‘one solution’ scape goat
B) Finance. Then I turned my attention to what I consider is the most effective and promising weapon in our armoury – stopping the money flowing to the criminals. My report ‘Follow The Money: Financial Options to Assist in the Battle Against On-line Piracy’ made a number of recommendations centred around three main components: (a) a voluntary scheme to stop brand owners from advertising on illegal sites; (b) a request that we legislate to tackle the remaining rouges who just don’t care (typically porn and casino sites) and (c) the payment providers – if you can’t pay for goods on an illegal site, that takes sales away directly. In the USA alone in 2013, the Digital Citizens Alliance estimated that advertising brought in $US227million in revenue for piracy sites. The Police Intellectual Property Crime Unit (PIPCU – who incidentally were the subject of my first recommendation to the Prime Minister asking him to extend the funding which he did and they now have extended funding) has estimated that maybe as much as 80% of Piracy could be stopped if we were effective in stopping the flow of money to the criminals. I am pleased to say that a voluntary code is now in place and the UK Intellectual property office (IPO) is reviewing what the next stages could be.
Many advertises of course hide behind the argument ‘we employ a digital ad agency who sub contract and we can’t really determine where all our ads go’. Nonsense. You are in control and not one single advert of yours should appear on any site that facilitates any degree of piracy. MI 6 example.
C) For my 3rd report ‘Copyright Education and awareness’ I focused on the ‘Education’ message and what Government and Stakeholders need to do together and I am pleased to report that a steering group now meets regularly with good proposals coming through and a new scheme in place. These measures are in addition to ‘Create Content UK’ – the UK notification process to those individuals downloading illegally, via cooperation with the ISPs, that what they are doing is illegal. CCUK started in January 2017 and it is too early to say what the impact is but their stated aim is to deliver 2.5m notices per annum. I love that it is going ahead and I love all the extra promotional effort that is associated with it. However, I would like to see more ‘teeth’ against those that just ignore the notifications and I think the ISPs really should have been quicker and more helpful to get it all rolling.
D) ISPs. Which brings me on to the 4th report I did as my parting shot as I left Parliament: ‘Safe Harbour Provisions and On-line Service Providers’. During all my time as the PMs Adviser I was impressed by how everyone engaged and made helpful suggestions - with the exception of one general group: the ISPs’. When one of the ‘big 4’ met with me and declared, with folded arms, that they were not going to help and that we would have to legislate to get them to do anything constructive in the fight against piracy, I felt it was my duty to issue a report that stirred up the debate around Safe Harbours. As with all corporations (as with citizens generally), I think there is a moral duty that ISPs have to society which far outweighs their ‘we don’t mind if it’s the Wild West out there’ approach.
Explain garage example.
It is interesting to note that none of the ISPs have commented at all on any of the recommendations which perfectly illustrates why this report was necessary. And one more note – a lot of the problems we have in getting the ISPs to take responsibility in Europe’s dates back to, in my opinion, a mistake in 2003 legislation and the EU Safe Harbour provisions that specifically exempts ISPs from any liability for illegal activity over their wires. I am delighted that your Copyright office is undertaking a review at the moment on this very subject. The response has been overwhelming with 92,000 submissions before April 2016 – I went online and read some of them. Its great to be having that debate and please, ervyne in the room, please keep actively involved with this review. It really is vital to the next 10 years of anti-piracy activity.
The International Perspective on site blocking and notices
It is gratifying to see so many countries getting behind tackling the problem – and the following are just a small selection of examples. In June 2015 a Canadian Court instructed Google to delist an illegal site regardless of territorial domain – not just demote it. In August 2015, Indonesia, the Government told 200 providers to block 22 illegal websites. In Italy, in June 2014, the advertising industry and the content protection organizations for music and audiovisual took a first encouraging step and signed an MOU (Memorandum of Understanding) to cut off advertisement revenues for pirate sites. In Denmark, in October 2014, the Danish Ministry of Culture facilitated a Code of Conduct between Danish rights holders and the access providers of the Telecommunications Industry Association. What makes this particular code of conduct so special is that besides rights holders and access providers, search engines, ad networks, payment processors and other intermediaries have signed a declaration of intent to promote lawful behaviour online and take measures against copyright infringement. Among the signatories are Google, Microsoft, Mastercard, the ISP association and a broad group of rights holders. Three cheers for Denmark I say.
In Conclusion
The stats show that you need a huge number of take down notices to make a small impact on any disruption of the illegal sites. Currently at 92 million per month to Google. And over 1 billion so far in total
The stats also show that you need a huge number of notices to the public to make an impact. 2.5 million letters going out in the UK this year
Both these routes are imperfect solutions.
We need the three steps of ‘Education, Carrot and Stick’. We need to make the ISPs and Search Engines more accountable and proactive. But we need more than these steps alone.
So back to my 4 minutes with the Prime Minister, what is my one answer if he were to ask me ‘the question’ again? Without a doubt the biggest and easiest ‘hit’ we can make against the pirates is to:
‘Follow the Money!’
There are many additional things we can do around Education, product change encouragement and enforcement – but if you go after the big ticket item Pareto’s rule will apply. Take 80% of the illegal sites off the web, via taking away their reason for existing, and then we can tinker around to tackle the remaining 20% illegality as we go along.
Telling errant users they are doing wrong and directing them to legal sites is a small but good step. There is evidence that it works especially if you add in strong penalties. They did this South Korea and the results are very encouraging. And in France, a study showed levels between 38% and 48% reduction in piracy – at least in the short term.
But notices are not the solution. It needs to go much further. Telling user facing sites to take down illegal sites, or stopping them via the ISPs, is also a good disruption step. Better still is to track illegal sites and get the ISPs to stop them. That would really make a difference. Going hand in hand with Search Engines being proactive to track illegal sites and block access, taking away the need for notices. By the way it can be done without infringing civil liberties – I have seen the software in operation first hand and it can be very precise about what content is illegal and what is not. But the public is certainly not ready for that yet.
We really can win this fight against piracy. We just need the political will and a lot of stamina. And it is more than relying on notices.
Thank you