Regulating File Sharing: Open Regulation for an Open Internet

• Author: Michael Filby
• Position: LLB, LLM, MPhil, School of Law, University of Leicester
• Pages: 207-223

JICLT

Journal of International Commercial Law and Technology

Vol. 6, Issue 4 (2011)

207

Regulating File Sharing: Open Regulation for an Open Internet

∗

Michael Filby

LLB, LLM, MPhil

School of Law

University of Leicester

mrf16@le.ac.uk

Abstract. Regulators have a choice of approaches available to them in regulating digital

copyright issues that lie on a scale between restrictive ness and openness. In a world in which the

regulator seems to exclusively rely on entrenching a restrictive approach, this paper questions

whether the long-forgotten open approach is worth reconsidering in the dig ital age. The ideal of

cyber socialism is examined in the context of the roots and structure of cyberspace and its state of

nature, and digital d istribution models operating outside of the existing law are considered. The

Creative Commons licenses are evaluated for their suitability in opening the current one-note

regulatory regime.

1. Introduction

In a world in which copyright regulation is becoming ever more protectionist and restrictive in nature, it is easy

to forget that there is more than one approach available to be taken. The Copyright, Designs and Patents Act

1988 (CDPA) presently offers a fra mework enforcing a system of cop yright protections that apply a number of

key restrictions automatically for a generation -encompassing term ensconced in both cri minal and civil sanctions

– the classic and common approach of treating knowledge as an asset more tha n a public resource. The

legislature has str uggled to impose this regulatory regime upon the relatively youthful internet since its initial

boom, with the infringement notification procedure and technical measures of the Digital Economy Act 2010

being the latest attempt to crowbar this form of copyright protection into the digital age. But is this regulatory

approach that is traditionally used to regulate intellectual property in the physical world necessarily appropriate

to intangible content in a virtual world?

This paper seeks to an swer this question by defining the more open regulatory approach at the opposite end

of the regulatory spectrum and exploring its applicability to cyberspace and the internet. Key differences

between the two regulatory approaches are identified and compared with the distinctions that exist between the

physical and virtual worlds. It is then argued that the significant overlap between the open evolution of the

internet and the philosophies of open regulation supports the widening of pure copyright re gulation into a more

flexible licensing system that espouses the ideals of the Creative Commons, which will serve as a middle ground

between the competing ideologies of these t wo different worlds whilst taking a co-habitational view that

recognises the symbiosis between t hem. The Creative Commons lice nses are then explained, and their primary

criticisms considered. It is concluded that the inter net has created an important new way of conducting business

in association with the physic al world and its traditional business models, but that the differences in its

construction and operation n ecessitate a form of regulation that is less restrictive than pure copyright. It is

suggested that formalisation of Creative Commons licenses as a minimum will provide a crucial regulatory

middle ground between copyright and open source that will levy fe wer technical impediments upon the evolution

of the internet and the novel behaviours, norms and technologies that it i s spawning.

∗

This article updates and greatly expands upon ideas originally discussed in M Filby, 'Together in electric dreams: cyber

socialism, utopia and the creative commons' (2008) 1 (1-2) International Journal of Private Law 94.

JICLT

Journal of International Commercial Law and Technology

Vol. 6, Issue 4 (2011)

208

2. Regulatory Approaches

In contextualising the differing methodologies that exist to regulate file sharing, four models of information

policy were defined by Davies and Withers which describe four points on a regulatory spectrum ranging fro m

the most restrictive to the most open.

1

On the extreme of the scale where the most restrictive approach resides,

knowledge is treated purely as an asset. This corporation-focused approach treats intellectual prop erty in a

similar manner to physical or tangible property, and subjects IP to the same bre ed of restrictions and controls as

if it were a piece of owned land or property. The descr iption “American con servatism” links this approach with

the stance of the US Digital Millennium Copyright Act 1 998 which treats intellectual property or knowledge

almost entirely as a corporate asset, with only a few fair dealing provisions to concede to public interest in the

knowledge.

Moving away from American conservatis m sees an approach whereby knowledge is treated as an asset in the

first instance and a public resource as a secondary consideration – the “UK knowledge economy”. This app roach

also favours the interests of the corporation, but with certain concessions made in the interests of the consumer.

Describing the approach as the UK Knowledge Economy implies that this is where the authors view the law of

the UK existing in that the CDPA is focussed upon restricting rights with only minor concessions to consumer

interests, although its predominant use of civil remedies i n non-commercial instances of infringement as opposed

to a reliance upon criminal sanctions sets it apart from its US counterpar t.

Moving further away still see s the next model, the “learning society”, which represents an approach where

these priorities are both still present but reversed in precedence in that knowledge is treated as a public resource

primarily and as an asset secondarily. T his approach allows the consumer more rights when it comes to dealing

with and accessing intellectual property, to some extent disempowering the legal fortitude of digital rights /

restrictions management (DRM) as a concession to, for example, fair use safe harbours. In describing this

position as the b asis of a learning society, the authors cite a number of examples of how certain European states

have interpreted the requirements of the EC Co pyright Directive

2

in a less strict sense than jurisdictions such as

the UK, consequently affording a greater degree of openness in the use of intel lectual proper ty. However,

regulation has changed in the intervening period since the commentary was submitted in 200 6. For example,

since Da vies and Withers commended the measures taken by the French legislature via the DADVSI law

3

to

impose a legal requirement to guarantee the interoperability of intellectual property subject to DRM, the law has

been radically reformed to the effect that it has been brought closer to the approach of the US DMCA.

The final model on t he regulatory spectrum, cyber socialism, is not presently represented by the regulative

approach of any jurisdiction. It is important not to confuse the concept of appl ying the tenets of socialism to the

digital domain with physical world socialist regimes, nor to dismiss the model simply on the basis that it differs

to what physical world free markets and physical world regulations have been principally designed to

accommodate. The questio n of whether a freer digital market would enable greater commercial success to those

who choose to innovate rather than regulate is important when considering regulatory reform that protects free

market principles without impeding the evolution of online business p ractices, so it must be considered to what

extent the digital market can be unburdened without losing benefit to creators and users alike. Indeed, if it can be

established that cyber socialism is not only a more viable approa ch as compared to the current obstructive,

1

W Davies and K Withers, Public Innovation: Intellectual Property in a Digital Age (Institute for Public Policy Research,

London 2006), 72 et seq.

2

Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society

[2001] OJ L167 22/06/2001, 10-19.

3

Loi n°2006-961 du 1 août 2006 relative au droit d'auteur et aux droits voisins dans la société de l 'information, 14 June 2009;

see Legifrance, 'Dispositions portant transposition de la Directive 2001/29/CE du Parlement Europeen et du Conseil du 22

Mai 2001 sur l'harmonisation de certains aspects du droit d'auteur et des droits voisins dans la societe de l'information'

(Legifrance 2006) <http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000266350&dateTexte=>

accessed March 2011.