Copyright holders should back off attempts to make internet service providers (ISPs) across the globe enforce copyright on their behalf, according to network vendor Ericsson.
As New Zealand begins enforcing its three-strikes copyright-infringement policy, with ISPs dishing out the first warning notices to customers, Ericsson has this week released a discussion paper (PDF) on copyright-enforcement approaches globally. The company has argued that a "balanced approach" is required, and has criticised moves by copyright holders around the world to strong-arm ISPs into enforcing their copyright for them.
"To the extent that enforcement action of rights takes place, relying on the evidence provided by a rights holder, the rights holder should take responsibility for the consequences of the action, including indemnifying the ISP against any costs or losses it might suffer," Ericsson said.
"Most definitely avoid outsourcing, say, to ISPs of private property enforcement. Any sanctions should remain the prerogative of the courts. Only due legal processes can ensure that allegations are properly evaluated, defences adequately considered, and proportional punishments imposed."
Ericsson said that sanctions against alleged copyright infringers should lie with the courts to ensure due legal process, and, by imposing this, users may not be able to defend themselves and punishments — such as disconnection from the internet — may be completely disproportionate to the infringement itself.
"In bypassing established judicial proceedings, distributed enforcement of copyright runs the risk of bypassing the safeguards that have been established to ensure that copyright law is enforced in a way that is both regular and equitable."
Ericsson has argued that copyright reform for file sharing should not be "one sided" in favour of copyright holders, and should be flexible as it has in the past in other areas, such as video recorders.
The reasonable expectations of users need to be accommodated. Consider, for example, the way the law has accommodated the infringement of copyright that takes place by time shifting television programs and format shifting music files. In some jurisdictions, express amendments to copyright legislation have been introduced, legalising making of copies for personal use in this context; by creating exceptions to the exclusive right or through application of the "fair use" doctrine. However, adherence to this principle is not to suggest that it is inevitable that users will make and share works — in an infringing manner — without restriction or even that doing so may one day be legalised.
Ericsson also said that the companies should seek to make their content available in a timely, legal and affordable manner, as this would be the simplest means of reducing copyright infringement.
The paper comes just less than a month before iiNet and the coalition of movie, music and film organisations, known as the Australian Federation Against Copyright Theft (AFACT), face off in the High Court. The final appeal of the 2008 case will determine whether the ISP authorised its customers' copyright infringement. The outcome of the trial is set to shape the landscape of copyright law in Australia for years to come.
iiNet has argued that the infringement notices provided by AFACT were not sufficient for the ISP to act on. In the appeal ruling, Justice Arthur Emmett also said that copyright holders should be required to reimburse ISPs for any costs associated with investigating and acting upon infringement notices.
The Attorney-General's Department has hinted at examining a streamlined piracy process to enforce copyright, leaking details of the proposal in a discussion paper published last month. The department subsequently retracted the public discussion of this proposal, saying that it was best left as a discussion with industry.