Page 90 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Chapter 3 Copyright Rules for Online Intermediaries: From Safe Harbour to a New Intermediary Liability Scheme
An Intermediary-oriented Approach

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New Zealand (2011). The High Court of Ireland upheld a settlement between the Irish
Recorded Music Association (IRMA) and Ireland’s largest ISP, Eircom, which was required
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to implement the three strike policy as a condition of settlement. The US also adopted a
voluntary three strikes policy. Two copyright collective societies in the sound recording and
music industries, i.e., Recording Industry Association of America (RIAA) and the Motion
Picture Association of America (MPAA), together with several ISP giants, including AT &
T, Cablevision, Comcast, Time Warner Cable and Verizon, entered into a Memorandum of
Understanding that established a graduated response system called Copyright Alert System
(CAS). CAS has also been called the ‘six strikes programme’ because it requires ISPs
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to throttle bandwidth or prevent Web access after the alleged infringer has received five
warnings. 209
The graduated response system has the same purpose as the traditional ‘notice and
takedown’ rule: to encourage cooperation between the copyright owners and ISPs. However,
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it achieves this purpose more smoothly. The escalating response system can guide first-
time offenders to lawful use and increase the general public’s awareness of the need to
protect copyright, in addition to prohibiting bad-faith repeat infringements by securing
copyright owners’ interests. Therefore, it has been said that the graduated response system
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is ‘another word for improved ISP co-operation’. Some ISPs such as MySpace, under the
pressure of copyright owners, have adopted a ‘notice and stay down’ strategy. It goes beyond
the classical ‘notice and take down’ rule because it requires ISPs to monitor and remove re-
uploaded infringing content to ensure the material ‘stays down’. 212
Although the cooperation strategies have facilitated copyright enforcement, they have
placed the removal of user-uploaded content at the discretion of the ISPs that followed the
copyright owners’ notice without considering the users’ interests. Some jurisdictions have
allowed users to dispute the removal by sending counter-notices; however, the counter-notice
rules have been notorious for their time-consuming procedures and the greater hospitality

206 Eldar Haber, ‘The French Revolution 2.0: Copyright and the Three Strikes Policy’ (2010) 2 Harvard Journal Sports &
Entertainment Law 297, 297; Copyright law of South Korea, Art 133bis. Digital Economy Act 2010 (UK); Copyright
(Infringing File Sharing) Amendment Act 2011 (New Zealand).
207 EMI Records & Ors v. Eircom Ltd., [2010] IEHC 108, paras 15-18.
208 Nate Anderson, ‘Major ISPs Agree to “Six Strikes” Copyright Enforcement Plan’ (arsTECHNICA, 7 July 2011) < https://
arstechnica.com/tech-policy/2011/07/major-isps-agree-to-six-strikes-copyright-enforcement-plan/> accessed 20 July 2019.
209 Cyrus Farivar, ‘“Six Strikes” Program Could Affect Businesses Too, Even if Infringer is Unknown’, (Ars Technica, 14
January 2013) <https://arstechnica.com/information-technology/2013/01/six-strikes-program-could-affect-businesses-too-
even-if-infringer-is-unknown/> accessed 24 January 2019.
210 Alain Strowel, ‘Internet Piracy as a Wake-up Callfor Copyright Law Makers-Is the “Graduated Response” a Good Reply?’
(2009) 1 WIPO Journal 75, 77.
211 Ibid.
212 Bristows, ‘Music Industry Urges Use of “Notice and Staydown”’ (1 June 2016) <https://www.bristows.com/news-and-
publications/articles/music-industry-urges-use-of-notice-and-staydown/> accessed 24 May 2019.

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