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UN Report Says Internet Three Strikes Laws Violate International Law

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Friday June 03, 2011
The United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has released an important new report that examines freedom of expression on the Internet.  The report is very critical of rules such as graduated response/three strikes, arguing that such laws may violate the International Covenant on Civil and Political Rights (Canada became a member in 1976). Moreover, the report expresses concerns with notice-and-takedown systems, noting that it is subject to abuse by both governments and private actors.

On the issue of graduated response, the report states:

he is alarmed by proposals to disconnect users from Internet access if they violate intellectual property rights. This also includes legislation based on the concept of “graduated response”, which imposes a series of penalties on copyright infringers that could lead to suspension of Internet service, such as the so-called “three strikes-law” in France and the Digital Economy Act 2010 of the United Kingdom.

Beyond the national level, the Anti-Counterfeiting Trade Agreement (ACTA) has been proposed as a multilateral agreement to establish international standards on intellectual property rights enforcement. While the provisions to disconnect individuals from Internet access for violating the treaty have been removed from the final text of December 2010, the Special Rapporteur remains watchful about the treaty’s eventual implications for intermediary liability and the right to freedom of expression.

In light of these concerns, the report argues that the Internet disconnection is a disproportionate response, violates international law and such measures should be repealed in countries that have adopted them:

The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights. The Special Rapporteur calls upon all States to ensure that Internet access is maintained at all times, including during times of political unrest. In particular, the  Special Rapporteur urges States to repeal or amend existing  intellectual copyright laws which permit users to be disconnected from Internet access, and to refrain from adopting such laws.  

The report also highlights the shortcomings of a notice-and-takedown system, providing further evidence that the Canadian notice-and-notice approach (as found in Bill C-32) is not only effective but also more equitable. The report states:

while a notice-and-takedown system is one way to prevent intermediaries from actively engaging in or encouraging unlawful behaviour on their services, it is subject to abuse by both State and private actors. Users who are notified by the service provider that their content has been flagged as unlawful often have little recourse or few resources to challenge the takedown. Moreover, given that intermediaries may still be held financially or in some cases criminally liable if they do not remove content upon receipt of notification by users regarding unlawful content, they are inclined to err on the side of safety by overcensoring potentially illegal content. Lack of transparency in the intermediaries’ decision making process also often obscures discriminatory practices or political pressure affecting the companies’ decisions. Furthermore, intermediaries, as private entities, are not best placed to make the determination of whether a particular content is illegal, which requires careful balancing of competing interests and consideration of defences.

The report points to a Chilean law that requires a court order for takedown of content as a preferred approach. The Canadian approach also envisions court orders for takedowns.
Comments (17)add comment

Ki said:

...
Interesting. I like the reasoning, and it makes sense. Completely removing someones Internet access really is a disproportionate response. Though I'm some some of the three strike law proponents will attempt to defend their viewpoint.
June 03, 2011

Danux said:

Uses for the UN
I believe I can say, with some confidence, that because the UN has spoken against the grain, they will be utterly ignored by the powers that be. The UN is touted as a wonderful body of global representation, when it coincides with their goals; it is an unrealistic hindrance when ethics/words runs contrary. I'm sure that this can get bogged down, and eventually drown, in the UN bureaucratic swamp.
June 03, 2011

IamME said:

RE: Uses for the UN
I agree, but as more and more reports come out, such as this, the Hargreaves report and many others just in the last year alone, it's becoming more and more difficult for governments to ignore.
June 03, 2011

end user said:

...
How is three strikes any different then loosing your car license because you got pulled over three times where the police found a usb drive or burnt music cd in your car stereo. Its as ridiculous as its reads.

ATM I'm watching some used WW2 DVD sets I bought as a pawnshop and I can't believe that not so long ago 100's of thousands of soldiers died fighting for real freedom and against real tyranny and here we are 66 years later with the corporations and governments colluding with each other against citizens of a country for dying profit/market protection.

The political bodies will do nothing its all talk, the only change will come with regular people standing up and saying enough is enough. BUT the sad part is they will not get off the internet long enough to fight for their rights to retain that internet and personal rights.
June 03, 2011

Crockett said:

Mr. Degen & Crawley ...
I look forward to comments by those who have previosly cited the UN charter of rights as a foundation for protection and guidance in the discussion of copyright.

Possibly, we are beginning to approach that elusive middle ground on the stage of international opinion.
June 03, 2011

IamME said:

...
On a lark I did some searching. Not surprisingly, this hasn't hit CNN in the US or the CBC in Canada. God forbid the public be aware of international studies that contradict existing (DMCA) or potential (C-32) laws. The same law the US has been trying to push on other countries. The same law that seems to break laws found in the International Covenant on Civil and Political Rights.

Luckily it's been reported upon by many other sources. Thank God for the Internet eh?
June 03, 2011

IamME said:

Speech from the throne
"Our Government will introduce and seek swift passage of copyright legislation that balances the needs of creators and users."

With how much press and pressure there was over C-32. This, being the mention of copyright reform, in it's vagueness with no mention of consultation or amendment, has me concerned since we all know how unbalanced C-32 was. I like to think the conservatives have heard the people and will amend the bill to be more balanced. Unfortunately we know that Harper will bow down to his American media task masters hoping for a few scraps. This gives me the horrible sinking feeling that we're so $crewed!!!
June 03, 2011

Crockett said:

It may not matter ...
As was so obviously put forward by the IDRC report today, legislation or enforcement will have little effect on broken market models.
June 03, 2011

Crockett said:

Save the World ...
The panel discussion was very informative, I enjoyed having a tele-presence participant from Brazil to bring in an outside perspective. One point that struck me, and a question I posed to the panel, was the effect that copyright enforcement has on developing nation's legal infrastructures.

The USA has a big stick in the form of the USTR. I do not bemoan it's role as any country must protect it's own industry and competitiveness, but the amount of pressure it brings to bear must be weighed against both it's effectiveness, as well as the effects it has on those it is targeting.

For instance I mentioned above that I have traveled and lived abroad in the developing world, thus I may have a greater perspective on the inequities people face there. One of them, of course, is justice which is often hard to come by when eclipsed by corruption. With the intense political and trade pressure that the US brings to bear a disproportionate amount of limited resources can be diverted to combat what is essentially a minor economic problem in lieu of combating more pressing quality of life, safety and even life threating issues.

I think a reflection on the importance & degree of copyright enforcement in the developing world must take into account these factors and one must ask if the morality of such actions are justified against the apparent harm. I say this understanding there will be some loss on the part of the copyright holders, but unless they actually plan to participate in these markets in a cost appropriate way, the actual losses are close to non existent.

For all the hoopla and pandering by so many high profile artists to the plight of the disadvantaged, it seems antithesis to me to push such draconian measures for so little personal return, but then does the USTR, **AA really represent artists ... or perhaps the stockholders?
June 03, 2011

Gregg said:

A Prime Minister Dodging Possible War Crimes Questions....
...isn't going to let any silly UN Human Rights charter get in his way of his Reich.
June 03, 2011

from 'The Tyee' said:

off topic
Backwards Mulroney era business subsidy being actively undermined by federal bureaucracy.

"For more than 10 years, federal policy has been to assign contractors the rights to any intellectual property produced during their work for departments and agencies. [...] But a new evaluation of how well the policy is working found that too many patents, industrial designs and other intellectual properties are winding up in government hands, without proper justification. [...] In 1991, the federal government began loosening its grip on patents and copyright, and by 2000 required that any intellectual property arising from a procurement contract should generally be owned by the contractor, with limited exceptions such as national security."

http://thetyee.ca/CanadianPress/2011/06/04/Patent-Hoarding-7052356/
June 04, 2011

Crockett said:

It must be a very cold day 'down under' ... and I'm not talking about Australia
http://torrentfreak.com/record...ns-110606/

Seriously, Kudos for pulling back from an unjust & unworkable approach ... now lets see if this get's applied to the rest of the world, even France!
June 06, 2011

Patent decision in US said:

Inventors have first claim to their discoveries.
Board of Trustees of the Leland Stanford Junior University v. Roche Molecular Systems, 09-1159

The U.S. Supreme Court, in a ruling that limits the patent rights of research universities, threw out Stanford University’s suit against a Roche Holding AG (ROG) unit over methods for testing the effectiveness of AIDS treatments.
Voting 7-2, the justices upheld a lower court’s conclusion that a scientist working at Stanford in Palo Alto, California, transferred his rights to the discoveries to a company whose line of business Roche later bought. Under the court’s reasoning, the transfer made the company a co-owner of three disputed patents.

http://www.bloomberg.com/news/2011-06-06/roche-wins-against-stanford-as-high-court-limits-university-patent-rights.html
June 07, 2011

Hub said:

...
That's even a better argument for the Harper Junta to pass the bill. If the UN does not like it, it must be good.

[/SARCASM]
June 07, 2011

Stephen Heller said:

concerned
well in this point is where surge arise the great question, who control the Internet? what in, what out? when you make this question there's a lot of answers, but from my point of view each government must watch what kind of content put to public access, the only thing I hope is that nerver take off my Buy Viagra option.
November 29, 2011

Jason Meers said:

?
i don't agree with any of this. the UN just needs to make up their mind and quit trying to control everything. All i know is i can't wait to go see wrestlemania 2012 and have fun.
March 29, 2012

Luke Steller said:

don't know
oh well, the UN does what they want. http://www.winwwetickets.com/
March 29, 2012

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