Copyright enforcement measures: the role of the ISPs and the respect of the principle of proportionality
Abstract
In their effort to enforce a regulation system on the internet, several countries introduced the graduated response system (otherwise known as “three strikes and you’re disconnected”). Since then, it started gaining popularity all over the world whether in a legislated form or in a form of private agreements between major copyright holders and internet service providers. On an international level, the final version of the Anti-Counterfeiting Trade Agreement (ACTA) was published on 3 December 2010. Although it does not directly suggest the application of a graduated response system, it establishes a legal ground on which member states can justify the instauration of such a system.
This paper will discuss the role of the internet service providers in regulating the internet as it is designated by the graduated response system. The tasks entrusted to the providers will then be examined for their accordance with the principle of proportionality. The article will not focus in a particular national legislation, but it will rather provide an analysis of the problematic aspects of the graduated response system using examples of national legislations or accords. The central question is whether fundamental rights are respected by these enforcement measures. Since illegal file sharing has turned from a mere habit to an ideology, the paper will ultimately propose that it would be wise to take a step back not only from the incessant legislation process but also from the war declared against internet.
Published
Issue
Section
EJLT is an open access journal, aiming to disseminate academic work and perspectives as widely as possible to the benefit of the author and the author’s readers. It is the assumption of the EJLT that authors who publish in the journal wish their work to be available as freely and as widely as possible through the open access publishing channel.
Authors who publish with EJLT will retain copyright and moral rights in the underlying work but will grant all users the rights to copy, store and print for non-commercial use copies of their work. Commercial mirroring may also be carried out with the consent of the journal. The work must remain as published – without redaction or editing – and must clearly state the identity of the author and the originating EJLT url of the article. Any commercial use of the author’s work - apart from mirroring - requires the permission of the author and any aspects of the article which are the property of EJLT (e.g. typographical format) requires permission from EJLT.
Authors can sometimes become no longer contactable (through, for example, death or retirement). If this occurs, any rights in the work will pass to the European Journal of Law and Technology which will continue to make the work available in as wide a manner as possible to achieve the aims of open access and ensuring that an author's work continues to be available. An author - or their estate - can recover these rights from EJLT by providing contact information.
The European Journal of Law and Technology holds rights in format, publication and dissemination.
EJLT, as a non-commercial organisation - which receives donations to allow it to continue publishing – must retain information on reader access to journal articles. This means that we will not give permission to mirror the journal unless we can be provided with full details as to reader access to each and every journal article. We prefer and encourage deep linking rather than mirroring. Encouragement is thus given for all users – commercial and non-commercial – to provide indexes and links to articles in the EJLT where the index or link points to the location of the article on the EJLT server, rather than to stored copies on other servers.
Please contact the European Journal of Law and Technology if you are in any doubt as to what this statement of use covers.
