Every February, a US lobbying group called the International Intellectual Property Alliance comes out with a "report"
to the US Trade Representative, supposedly highlighting which countries aren't living up to their obligations with regards to "piracy" and copyright law. The hope is to get the USTR to put that country on a special watch list
. In recent years, much of the focus has been on blaming countries that don't implement draconian copyright laws (even more draconian than those in place in the US), claiming incorrectly that failing to create DMCA-like laws is a failure to live up to international treaties. That's simply not true. Michael Geist is now pointing out that Israel, who was highlighted in this year's report, has responded to the "inaccuracies and hyperbole" in the report
. The Israeli response includes a rather lengthy discussion of all the things the country has already done to put in place more American-style copyright and patent laws, but does push back on a couple of important points. Specifically, in discussing the fact that it hasn't put in place DMCA-style anti-circumvention laws for DRM (which is referred to as "Technology Protection Measures" or TPM):
Internal discussions on whether to implement TPM continue and in this respect the GOI [Government of Israel] notes that the experience with TPM around the world has not been uniform, nor has it achieved the results that many of its early promoters thought it would. Additionally, comments received by the Ministry of Justice following a "request" for comments on the subject of TPM, indicate that many several large authors' groups vehemently oppose TPM, while other right holders categories favor TPM. The critiques and criticism of TPM both from business model perspectives and from copyright perspectives are almost endless. Indeed, some content providers are already experimenting with non-encrypted access to content. Hence, the question of whether and in what manner to implement TPM is not straightforward and politically volatile.
Given that so many in the entertainment industry are (belatedly) realizing the pointlessness of DRM, the above paragraph is rather restrained. The response then pushes back on complaints that the safe harbors for ISPs and notice-and-takedown provisions it has for infringing content online are too lenient. In the US system, an ISP is supposed to just take the content down when informed of infringement. Israel decided on a much more balanced system that gives the other side at least a chance to respond. This seems reasonable, but it doesn't make the content industry happy. The explanation from the Israeli government is worth reading:
The notice and
takedown provisions are balanced and reasonable as between the rights of persons
claiming injury (copyright or libel for example) and the rights of free expression.
Where allegedly infringing material is notified to the ISP or host and the uploader
fails to refute the charges within three days, the offending material will be removed.
The IIPA, it appears, prefers a system wherein ISPs and hosts would have to take
down material as soon as there is an allegation of infringement, without need for due
process or rebuttal. A "takedown" system which operates on the basis of a mere
allegation of infringement would be an invitation to censorship and abuse of process.
To require "take down" on the basis of "constructive notice" alone, as desired by the
IIPA, would require the ISP or Host to make rulings of law as to whether certain
content infringes copyright or is libelous or otherwise actionable, something that only
courts have competency to do. Again to require takedown on the basis of
"constructive notice" (i.e. the allegation of an interested party) alone would be an
invitation to censorship, abuse and restraints on free speech. It is not the role of the
ISP or Host to become a policeman of content. Requiring such would effectively
bring the internet to a halt. Similarly, protecting the anonymity, to a reasonable extent,
of uploaders of content is essential to the promotion of free speech and discourse on
the internet, provided that a court has not ruled differently.
There's also a nice bit in the response to the claim that Israel's latest copyright law does not implement a "fair use" policy exactly the way the IIPA would like it. The Israeli government's basic response notes that even the US's own definition of fair use
doesn't match what the IIPA is asking Israel to implement, pointing out that its own fair use rules are almost identical to the US's. It's nice to see at least some people pointing out the ridiculous claims made by lobbyists trying to push for even more draconian and limiting copyright laws outside the US.