Contentious Issues: Copyright Reform in the Age of Digital Technologies

Author offers a timely, sweeping and detailed survey of current events, public and public interest reaction to and media coverage of copyright reform efforts to address illegal file-sharing of copyrighted works. Prepared for the ongoing copyright reform consultation in Hong Kong, the article provides background on the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonogram Treaty (WPPT) and the Digital Millennium Copyright Act (DMCA) with a particular focus on circumvention of technical protection measures (TPM) and fair use (fair dealing), and the DMCA Section 1201 Triennial Review. Against that background, the author surveys current reform efforts including "graduated response" (or "three strikes and you are out") proposals, including Internet Service Provider (ISP) liability and responsibilities, in the United Kingdon (including Digital Britain Report and subsequent government actions), New Zealand, Australia, South Korea, and elsewhere, events surrounding broader reform proposals in Canada, and those events in the EU with regard to copyright reform (with attention to the efforts to characterize internet access as a human right, including telecommunications act amendments), and in EU Member States including France (the enactment of the HADOPI law), Sweden (in which arrests and convictions of founders of the peer-to-peer Pirate Bay website have led to political action and supported the formation of the Pirate Party), tracing the incubation and initial successes of the Pirate Party in Sweden and Germany, and efforts to expand the party globally, The paper also looks at reaction to Anti-Counterfeiting Trade Agreement negotiations, copyright term extension, and the Google Books settlement with publishers and authors. The author concludes that although there is notable public reaction in some jurisdictions, (1) copyright law has never been a populist area of law, and popular reaction should not be a barrier to good policy making and preservation of the rule of law, (2) reform is demanded by both creators and users, but changes to the law should be made in light of the distinction between user rights and user expectations, the latter being better met by the marketplace, and reforms should protect both the interests of copyright rights holders and the rights of the users of those copyrighted works (such as attention to due process with regard to legal procedures to restrict Internet access).