Published: 25 May 2011
The Ministry of Culture has proposed measures to strengthen the possibilities to enforce copyright infringements on the Internet. In brief, it is proposed i) that the rights holders shall be able to record IP addresses used for infringements of copyright, ii) that the courts more easily shall be able to order Internet service providers to reveal information about the subscriber’s identity to the rights holder and iii) that web sites which evidently and in a large-scale make available copyright protected content are blocked or deleted.
Background
Due to the technological development during the past decade, it is possible to share copyright protected content in a much larger scale than earlier. Thus, it has become increasingly more difficult for the rights holders to control the use of content and to enforce their rights, which threaten the author’s exclusive right to make his work available to the public. Through the proposed amendments to the Copyright Act, the Ministry of Culture is seeking to provide the rights holders with the tools needed to enforce copyright infringements on the Internet, while still taking into consideration the protection of privacy.
Access to information about the identity behind IP addresses
The Ministry of Culture has proposed to include provisions in the Copyright Act on access to information about subscribers. This system will be clearer, more accessible and easier to practice than the system of the Dispute Act (cf. the Supreme Court’s decision in the so-called Max Manus case).
Pursuant to the proposal the courts may, following a balancing of interests, order the Internet service provider to reveal information about the identity of a subscriber to the rights holder. Prior to the court’s decision, the Post and Telecommunications Authority shall consider whether to consent to the Internet service provider being exempted from his duty of confidentiality. Consent may only be refused if it will be unreasonable to the person who is entitled to confidentiality. The Authority’s assessment may be reviewed by the court. The parties in such cases will be the rights holder and the Internet service provider, but the subscriber will be notified afterwards if information is provided.
Recording and storing of IP addresses To be able to require access to information about the subscriber, it has to be possible for the rights holder to records and store the IP addresses used in the infringement. Such processing of personal data is today conditional upon obtaining a licence from the Data Inspectorate. It is proposed that the rights holders should have the opportunity to record and store IP addresses when this is necessary for the establishment, exercise or defence of a legal claim. Such processing shall not be conditional upon obtaining a licence from the Data Inspectorate, but is subject to notification to the Inspectorate, which will control the system.
Blocking and deleting of web sitesIt has also been proposed to give the rights holder the opportunity to claim that an Internet service provider in serious cases is imposed to prevent access to copyright infringing content, by blocking or deleting web sites. Such measures may only be imposed towards web site which in a large-scale contains content which evidently infringes the copyright, and must be subject to a broad balancing of interests considering inter alia the freedoms of speech and information.
The proposal draws out two alternative approaches: either that the competence to impose orders is given to the Media Authority or that the competence is given to the courts.
No notification letter system (graded response)
Several countries have proposed to introduce provisions stating that the Internet service providers shall send notification letters to file-sharers, with possible sanctions in the event the infringing actions do not cease. This system is inter alia inspired by the British Ofcom regulations. The Ministry of Culture has chosen not to propose such provisions for the time being, since it considers that such measures will raise difficult questions with respect to the right to privacy and legal protection. The Ministry wants to await the effects of the other proposed measures, but is open for points of view in the consultative round.
The proposal will strengthen the rights holders’ enforcement rights towards copyright infringements on the Internet and will contribute to combating illegal file-sharing in a faster and more effective way. The right to record IP addresses and obtain information about the identity of subscribers will ensure that the rights holders achieve a more effective possibility to prepare lawsuits against Internet pirates. The possibility of blocking and deleting web sites will also contribute to prevent further infringements.
A system with notification letters (graded response) would strengthen the rights holders’ enforcement options even further. Such systems are proposed in several countries, and are considered to be faster, milder and more cost efficient than a legal process. Moreover, it is difficult to find a satisfactory alternative to cope with the massive infringements some file-sharing services represent. As mentioned, the Ministry of Culture is open for points of views, and it remains to be seen whether the final proposal will include a notification letter system. The deadline for comments to the consultation paper is 30th September 2011, and the new legislation is expected to come into force during the first half of 2012.
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© 2011 Advokatfirmaet Thommessen AS
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