Three strikes policy is off base according to copyright academic

As the Australian government contemplates a graduated 'three strikes' response to copyright infringement, a leading academic has cast doubt on the efficacy of such schemes saying there is no proof they work.

Speaking at the Online Copyright Infringement Forum in Sydney, hosted by Communications Minister Malcolm Turnbull, Monash University academic Dr Rebecca Giblin discussed the merits of the various graduated response schemes operating across the world.

Drawing on her own published academic research [PDF] which "examines every graduated response scheme operating around the world and exhaustively evaluates the evidence about the extent to which each has helped achieve copyright's underlying aims," Giblin said this evidence was weak.

"Despite big claims having been made about the efficacy of graduated responses worldwide, there is little-to-no scientifically credible evidence that they help achieve any of these aims," she said.

Giblin pointed to the international example of France, where a government-backed graduated response scheme known as HADOPI (a French acronym that translates to "High Authority for the Dissemination of Works and the Protection of Rights on the Internet") has been in operation since 2010.

The HADOPI scheme has been held up by the likes of Foxtel, Music Rights Australia, and News Corp as an international example of an effective graduated response scheme. However, Giblin said the implementation of three strikes -- particularly a reduction in the number of second infringement notices sent to consumers in France (compared to the number of first notices sent) -- pointed to a failed scheme.

"HADOPI is the administrative agency in France that is tasked with actually administering this scheme, and...HADOPI has been inundated with tens of millions infringement allegations," Giblin told the Copyright Forum. "They have resources to deal with only a few of them.

"The French government has funded them [HADOPI] to the tune of tens of millions of Euros but the agency still is not able to respond to all of these allegations."

Giblin's research paper noted that the first notices under HADOPI were sent in September 2010, and by December of that year, "rights holders were issuing between 25,000 and 50,000 infringement allegations per day".

"By July 2011, the Commission had reportedly received 18,380,844 infringement allegations. However, as of the end of July 2013 (three years later), HADOPI had only issued 2,004,847 first notices and 201,288 second notices," she said.

As of September 2013, only four cases had gone to trial.

"You've got a 12 percent chance of actually receiving a notice if an allegation has been made against you in the first place," Giblin said. "That's a very, very small chance that you're going to receive a second notice.

"Simply looking at the notices and saying 'there's less second notices than first notices' -- that's the kind of evidence that's been used suggesting that graduated response is working, but in fact that doesn't tell us anything at all."