By Harish Pillay And Ang Peng Hwa, Published The Straits Times, 1 May 2015
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.
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 SUBSCRIBERSWHENEVER 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.
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 DOWNLOADERSFROM 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 SUINGACCESS 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
Harish Pillay is the president and Professor Ang Peng Hwa is the vice-president of the Internet Society Singapore Chapter - isoc.sg
Access and education key to IP protection
By Bryan Ghows, Published The Straits Times, 1 May 2015
By Bryan Ghows, Published The Straits Times, 1 May 2015
THE recent furore over Dallas Buyers Club is not new. In 2007, there was an uproar over similar actions taken out by Odex against members of the public for downloading anime. In the 1990s, there was similar outrage.
Looking back on the last 20 years of enforcing intellectual property (IP) rights, six key themes are apparent:
There will always be some who will never pay for digital content, even if it is practically free. However, the financial success of numerous digital content providers shows that many are prepared to pay a reasonable fee for content, provided that it is easy to purchase, available on demand and on the device of their choosing, and accessible 24/7.
- It's hard to beat free;
- Convenience and speed trump all;
- Technology wins;
- There is a lack of education on the value of IP;
- IP rights holders tend to be heavy handed in enforcement; and
- IP rights holders have better ways to improve profits and reduce piracy than resorting to legal action.1 It's hard to beat free
There will always be some who will never pay for digital content, even if it is practically free. However, the financial success of numerous digital content providers shows that many are prepared to pay a reasonable fee for content, provided that it is easy to purchase, available on demand and on the device of their choosing, and accessible 24/7.
2 Convenience and speed trump all
Legitimate platforms like Netflix, Apple TV and Hulu have been developed to deliver content on-demand across most devices. Their pricing is affordable and reasonable for a large consumer base who would prefer to do the right thing and pay rather than risk the consequences of piracy. There are many who would prefer paying for a legitimate copy of Dallas Buyers Club - US$14.99 (S$19.80) on iTunes - than risk legal action by downloading a copy.
Yet, Singapore consumers find many obstacles in jumping on this bandwagon. This is due to sophisticated licensing networks limiting local distribution. Anyone over the age of 20 will remember how popular TV shows were shown when they ended their run overseas. Likewise, many movies were released weeks, sometimes months, after their US premiere.
But as Singapore consumers became increasingly unwilling to be patient, piracy came in to fill the gap. To their credit, movie distributors now release major movies on the same weekend as their global premieres. Likewise, StarHub and Singtel release certain TV episodes within 24 hours of the US.
Despite these small victories, in a culture where information is available on-demand, there is a conspicuous void here. In the US, you can watch almost any movie on-demand on Netflix or Hulu. Why are we denied this service? Presumably because rights holders have placed restrictions on Hulu's distribution. I can set up a VPN to spoof a US IP address, but why should I go through the trouble and expense? Shouldn't rights holders take proactive steps to broaden their licences when there are consumers willing to pay?
3 Technology wins
The digitisation of music destroyed the music distribution structure I knew as a teenager. Titans like Tower Records and HMV succumbed to the digital onslaught. However, digitisation also opened up an infinite range of music previously unobtainable in Singapore. Steve Jobs had the market force to change music distribution with iTunes. Spotify changed the game further with its "freemium" music streaming service.
These did not happen without massive resistance from the music industry, but technology placed in the hands of consumers always wins. It's better to get some money through legitimate licensing than no money because of piracy.
4 Lack of education on IP
Content creators need to make a living and piracy has the potential to deprive some of a livelihood. One movie download may not significantly impact a studio's revenue, but when replicated multiple times, it severely damages the industry ecosystem.
5 IP rights holders still tend to be heavy handed in enforcement
Having had the experience of suing many infringers, I firmly believe legal enforcement should be limited to the minority who consistently do not respect the right of creators to earn a living.
Making examples of individuals who are not hardcore infringers tends to undermine and distract from the argument that IP should be respected. In recognition of this impact, a "three strikes" law has been implemented in some countries and reflects the "proportionality of punishment".
Threatening a fine "not exceeding $50,000 or to imprisonment for a term not exceeding three years or both" is sub-optimal if the educational groundwork has not been laid and is not targeted at persistent "offenders".
6 There are better ways
Rights holders of digital content need to re-think their business models. IP blocking and legal enforcement are little more than a finger in the dyke when technology is constantly evolving to bypass these efforts.
In short, I advocate for a more nuanced and graduated approach in protecting IP rights in Singapore and request rights holders to make available more digital content at a reasonable fee.
The writer is a lawyer in private practice focusing on intellectual property and technology matters.
The writer is a lawyer in private practice focusing on intellectual property and technology matters.