Contents

Overview. 2

The State of Play: Copyright and Enforcement 2

Website Blocking: Australia Should Allow Website Blocking for Sporting and Other Live Events 2

Expand and Link Voluntary Agreements and Website Blocking: Australia Should Do the Same With Other Parts of the Digitial Economy 5

Voluntary Agreements Are an Important Antipiracy Tool Used Around the World. 5

Australia Should Use Voluntary Agreements and Memorandums of Understanding to Cut off the Advertising Money Going to Piracy Websites 8

The United States: The Trustworthy Accountability Group. 8

Europe: The Trustworthy Accountability Group. 9

Europe’s Efforts to “Follow-and-Cut-Off-the-Money” Going to Piracy 9

Australia Should Establish an Infringing Website List to Help Brands and Advertising Agencies Avoid Placing Ads on Piracy Sites 9

Infringing Website Lists Go Global at the World Intellectual Property Organization. 10

Use Voluntary Agreements to Cut Off Piracy Websites From Payment Processors and Other Financial Services 11

Another New Tool: A Small Claims Court for Copyright Infringement 12

Appendix: Europe’s MOU on Efforts to Cut off Advertising Money Going to Piracy 12

Endnotes 14

Overview

This submission represents the views of the Information Technology and Innovation Foundation (ITIF), a non-profit, non-partisan think tank focused on the intersection of technological innovation and public policy. We consent to the Attorney General’s Department contacting us about the submission and making it public.

If you have any questions, please do not hesitate to contact [email protected].

The State of Play: Copyright and Enforcement

Despite what some might claim, digital content piracy remains a significant threat to creative individuals and firms that depend on copyright protection. Globally, billions of dollars in revenue and thousands of jobs are lost each year due to piracy. The point should be obvious that enabling free, illegal consumption would cut into paid, legal consumption.

The director general of the World Intellectual Property Office (WIPO) sums up the situation:

What is clear [in regard to digital piracy], however, is that the impact of illegal downloading is significant and negative…. By dint of technology, we already have a seamless global digital marketplace, but it is an illegal one.[1]

As global lockdowns throughout the COVID-19 pandemic forced consumers to stay home, pirated content consumption rose.[2] Although the lack of new content releases throughout the lockdown resulted in a dip in this trend, 2021 and 2022 saw increases as content creators returned to work. In April 2021, INTERPOL launched a project to tackle digital piracy, which it stated increased “by more than 60 percent in some countries during the past 12 months.”[3] Between 2021 and 2022, visits to film piracy sites grew 36.4 percent, measuring 215 billion visits.[4] In 2022, consumers accessed 95 percent of television and 57.1 percent of film content using unlicensed streaming sites.[5]

The world’s leading creative countries still have a long way to go before they can say they’ve significantly reduced digital piracy, but many are finally taking steps in the right direction toward this goal. Australia has adopted many of the best policies to better target copyright infringement, but there are a few missing that policymakers should consider. This submission analyzes the use of website blocking for live events, developing voluntary agreements to target other parts of the piracy ecosystem besides search, the use of updated lists of piracy sites to help major brands and advertising agencies avoid placing ads on piracy sites, and analysis of the U.S.’s new small claims court as another tool for Australia to consider.

Website Blocking: Australia Should Allow Website Blocking for Sporting and Other Live Events

Australia deserves credit for enacting website blocking and for updating it to make it more efficient and effective, including by allowing rightsholder to target sites that facilitate infringement (like stream-ripping websites and cyberlockers) along with sites that have a primary purpose of infringing intellectual property (IP).[6] However, it can go further so that it is adaptable to the changing nature of piracy, especially in targeting streaming of live events. Like in Denmark and the United Kingdom, Australian content creators should be able to submit blocking applications with respect to live sporting and entertainment events.

This type of piracy has only become more significant as the world views more and more live content online. MUSO (an antipiracy company) estimated that for the first eight months of 2022, it measured 141.7 billion visits to piracy sites for all industries (a 21.9 percent increase over the same period of 2021) and that the largest targted sector was TV (which includes TV, anime, live sports, and live broadcasts), which accounted for 46.6 percent of all traffic to piracy websites.[7]

If Australia wants to ensure its copyright enforcement tools support the development of sport and other live events in today’s era of streaming, it needs to ensure that rightsholders can effectively and efficiently protect associated IP. The WIPO argues that IP rights lay “at the heart of the huge commercial opportunities offered by the world of sport” and that:

IP rights (especially patents, trademarks and broadcasting rights)—and the legal protection they give—help to secure the economic value of sport. This in turn stimulates growth of the sports industry, enables sporting organizations to finance high-profile sports events, and provides the means to promote sports development. Business transactions related to sponsorship, merchandising, broadcasting and media deals are all built on IP rights. The sports industry has a growing impact on the world economy, creating jobs, investing in public infrastructure and mobilizing resources.[8]

The increasingly ubiquitous nature of illegal streaming of live events hopefully means more countries will target it alongside more traditional forms of piracy. Data from antipiracy analytics firm White Bullet (which has collaborated with the Premier League in the United Kingdom) estimate that the top-ten illegal sport streaming websites in the UK each make an average of nearly AUD$2.5 million a year.[9] In response, rightsholders in the United Kingdom are able to get live and dynamic blocking injunctions for live sporting events (see below). More recently, in September, 2022, over 100 rightsholders and organizations spanning sports and other live entertainment in the European Union (EU) released a joint statement demanding the EU act to end live piracy. They called for a law that guarantees the removal and blocking of live streams immediately upon takedown notification, and before the live event itself terminates.[10]

In considering blocking injunctions for live events, Australian policymakers should focus on a central feature that differeniates it from other blocking injunctions—timeliness. Rightsholders need to be able to get and implement blocking injunctions in advance of the event for it to be effective. An injunction that comes after the event is useless. In a review of website blocking in Europe, stakeholders reported that slow implementation orders provide an insufficient remedy for time-sensitive infringements like live broadcasting of sports events.[11]

The use of blocking injunctions for soccer and boxing in the United Kingdom and Ireland provides a case study for Australian policymakers.

Expand and Link Voluntary Agreements and Website Blocking: Australia Should Do the Same with Other Parts of the Digitial Economy

Australia should create other voluntary agreements (detailed below) and connect them so that they reinforce their respective roles in targeting different parts of the piracy ecosystem. Australia is already doing better than most other countries in fighting digital piracy by linking blocked websites with deindexed search results on Google. This is the gold standard in terms of building a diverse toolkit to fight digital piracy.[22] Without requiring a court order, Google removes sites that Australian ISPs were already blocking. Furthermore, it agreed to an updated mechanism to de-index mirrors and proxies as soon as they are reported. It also applies to alternative locations of domains that have previously been targeted by blocking injunctions. As former Communications Minister Mitch Fifield stated, the website blocking legislation helped change Google’s behavior “in a positive way, so that hopefully there isn't the need to resort to the mechanisms the law provides” and that “This is the sort of voluntary and positive partnership we want to see between platforms and content creators.”[23] This proves the role and value of both legislation and voluntary agreement tools to help content creators and other digital firms ensure that the digital economy supports the production and consumption of legal (not illegal) content.

Voluntary Agreements Are an Important Antipiracy Tool Used Around the World

Australia should expand the use of voluntary agreements to fight digital piracy, much like the EU has done.[24] There is no easy, single solution to address the scourge of illegal digital piracy, but voluntary agreements can and should play a key role as they get stakeholders to proactively tackle pirated content and to undermine the ability of piracy sites to profit from stolen IP. As this section details, voluntary agreements are used more broadly to target the piracy ecosystem than described in the copyright enforcement review issues paper.

Australia’s use of a voluntary agreement between search engines and content owners is part of a global trend. Voluntary agreements differ by country and issue, but all share the common focus on groups of firms coming together to reduce digital piracy—a goal all responsible stakeholders should share. The empirical evidence shows these types of firm and government interventions can have a meaningful effect on consumer behavior, while also reducing piracy and increasing legal sales.[25] These voluntary agreements don’t directly address IP rights enforcement online (such as getting web pages containing infringing material blocked or removed), but rather target key facilitating services and processes that otherwise enable large-scale, commercially driven piracy sites to function as if they were legitimate businesses—which they most definitely are not.

In this way, voluntary agreements target supply-side factors that make life harder and costlier for piracy operators that otherwise would be left unimpeded to profit from facilitating access to illegal content. It should be in the interest of all actors interested in an innovative and prosperous digital economy to have measures in place to stop their goods and services from being used to monetize illegal actions. At the heart of these efforts is the collective recognition by all players that digital piracy services represent a social and economic harm to the broader creative and digital economy on which they all rely, and they’d all be better off working to make it harder—if not impossible—for them to function.

Indicative of their growing use, WIPO and its member countries have enacted a new program to support the growing use of voluntary agreements, including infringing website lists (infringing website lists, detailed below) by individual countries.

WIPO recognizes the role voluntary agreements can play in supporting IP, stating:

The project responds to increased interest among policymakers in methods of building respect for intellectual property which rely on voluntary cooperation, rather than on judicial or other compulsory measures.[26]

The flexibility of voluntary agreements makes them useful for policymakers looking to create a new mechanism for responsible stakeholders to work together on the shared goal of supporting a digital economy based on legal content. Many stakeholders realize voluntary agreements are, as they need to be, more adaptable than legislation, given the many different stakeholders and business models involved, both of which will inevitably change with technology. Likewise, for policymakers interested in pragmatic options to improve their digital economies, voluntary agreements are attractive, as legislative procedures take a lot more time and ultimately may not be best to address certain issues given the ever-changing nature of piracy. It may also be necessary for government to regulate in this space. But robust voluntary cooperative efforts can address many parts of the digital piracy problem. 

Whether they are codes of conduct, codes of practice, memoranda of understanding (MoU), or other voluntary arrangements, they provide a broader set of soft-law policy tools to help protect and support legal content creation and consumption while targeting pirated content and piracy operators. All these agreements have a common trajectory: There are voluntary agreements between copyright holders and payment processors, advertising networks, domain name registrars, and others. These can complement legislative and other efforts to protect creators’ digital IP from the significant negative impact of piracy. Experience from the United States, Europe, and elsewhere shows how firms from different parts of the digital economy can work together both to support the marketplace for legal content and reduce the availability of illegal content.

For example, the European Commission and European Parliament have established voluntary agreements and other antipiracy measures in EU member states and started looking at how to build on them and connect them at the regional level.[27] The European Commission and some EU member states have begun using more state-brokered self-regulatory mechanisms to increase the respective responsibility of stakeholders involved in the digital economy, including on piracy. As described below, the Commission and some EU member states have created MOUs between stakeholders within a part of the digital economy as a steppingstone or to solidify a voluntary agreement. These MOUs may not be legally binding, but they provide a means for recognizing an existing industry-wide consensus on an issue.[28] Europe’s approach also shows the flexible institutional arrangements that countries can use with voluntary agreements. Voluntary agreements can involve stakeholders working with a government administrative agency or judicial police or between trade groups/associations.[29] Sometimes these agreements are in addition to legislation for website blocking to ensure efficient and effective adoption and adaptation (in terms of enacting proxy and mirror websites).[30]

Governments have an important role to play in facilitating collaboration between the various stakeholders—whether rightsholders or Internet platforms—by suggesting that if they don’t come to mutually acceptable agreements to curb piracy, legislation could follow, which may be in a form more prescriptive and onerous than some would otherwise prefer. If companies work well voluntarily, the pressure to introduce legislation to impose mandatory measures will recede. Voluntary agreements can influence public policymakers’ perceptions, as they can be seen (as they should be) as a good-faith effort to address a pressing issue. Voluntary agreements can also set industry best practices that can become norms, in part, as they differentiate firms and stakeholders working together toward a common, mutually shared goal with those not taking part in these efforts.

Forming and operating voluntary agreements can be challenging given the legal and business issues between different stakeholders that have often been in protracted conflict over their respective roles in addressing digital piracy. However, the success of the Trustworthy Accountability Group, infringing website lists, RogueBlock, and others, and the fact that other countries and WIPO are replicating and supporting them, is evidence voluntary agreements should be a key tool in the toolbox to fight digital piracy. There is still a lot of room for Australia to adopt existing agreements and for everyone to look at other potential areas for cooperation, as the level of policy experimentation and adoption in fighting digital piracy is still far below where one would expect it to be given the size and growth of the digital economy. A European Commission review of IP enforcement options made an important point for Australia to consider in expanding voluntary agreements: the success of voluntary measures depends on genuine cooperation, goodwill, and commitment of the parties. While governments may play a role in encouraging the adoption of a voluntary measure, the practicalities of enforcement generally remain at the discretion of the parties.

Current experience shows governments have an important role to play in building the base for stakeholders to develop voluntary agreements (as has happened in the United States and the United Kingdom). This makes sense, as the government has an interest in how these mechanisms are developed and implemented to ensure they follow principles of good governance and contribute to broader public policy goals. Indicative of the key facilitating role of government, the WIPO Advisory Committee on Enforcement stated in its submission (referring to the EU’s, United Kingdom’s, and Israel’s experience with voluntary agreements) that they “highlight not only the value of effective partnerships between public and private sector actors but also the important role that state authorities can play in bringing together and facilitating cooperation between different industry actors.”^[31]

Australia Should Use Voluntary Agreements and Memorandums of Understanding to Cut off the Advertising Money Going to Piracy Websites

Australia should pursue a “follow the money” approach to cutting off the money that piracy sites earn from advertisements. Most piracy sites are motivated by money, much of which comes from advertising. Piracy sites put stolen content online for free and make money through selling ad space. This can involve ads from large, reputable brands that unwittingly have their ads placed on these piracy sites. There are a range of initiatives underway to cut off this source of funds. The Trustworthy Accountability Group’s (TAG) operations in the United States and EU provide a model for Australia to replicate. The European Commission’s use of a memorandum of understanding on online advertising and IP rights is another useful example for going after the money that fuels piracy.

The United States: The Trustworthy Accountability Group

Established in 2014, TAG is a not-for-profit cross-industry (self-regulation) program for advertisers that aims to eliminate fraudulent digital advertising traffic, combat malware, and fight ad-supported Internet piracy in order to promote brand integrity and promote brand safety through greater transparency.[32] In 2015, the U.S. Interactive Advertising Bureau (IAB) estimated that fraudulent impressions, infringed content, and “malvertising” were costing digital marketers $8.2 billion annually in the United States alone.[33] Companies (advertising and agencies) have the option to achieve the Certified Against Piracy Seal by operationalizing and demonstrating full compliance with the TAG Antipiracy Pledge and abiding by the Certified Against Piracy Guidelines.[34] Google, Facebook, Disney, Warner, NBC Universal, and many other major companies are members. Major ad agencies—such as the world’s largest, WPP’s GroupM—have stipulated that their media partners either become TAG certified or use TAG-certified services.[35]

TAG aims to cut off the money piracy sites earn from digital advertising. Research has documented that up to 86 percent of IP-infringing websites allow web users to download or stream infringing media content for free, with the websites earning money via online advertising.[36] A 2014 report by Digital Citizens’ Alliance and NetNames estimated that over 70 percent of video streaming hosting websites (also known as streaming “cyberlockers”) rely on ad revenue.[37] The United States Trade Representative’s Notorious Markets report consistently highlights how online piracy sites around the world are funded by advertising revenue.[38] An independent review of the top-5,000 IP-infringing web addresses in the United States, European Union, Latin America, and Australia estimated that about 13 percent of advertising on websites posing an IP risk are from major brands (including premium household names).[39] Ensuring piracy sites don’t benefit from these ads is becoming a major focus for voluntary agreements around the world.

A 2017 Ernst & Young study showed TAG had helped cut revenue to piracy sites by 48 to 61 percent in the United States, which amounts to an estimated $102 million to $177 million loss in potential earnings for piracy sites.[40] TAG also reduces fraudulent and malicious activity often associated with piracy sites. A separate December 2017 study found the use of TAG-certified distribution channels reduced fraud by more than 83 percent.[41] Most recently, a 2019 study by TAG and its partner Creative Futures estimated that TAG had directly reduced the presence of 76 major brands’ advertising on pirate sites, which led to a 90 percent reduction in (ad) impressions served on piracy sites over two years.[42] In 2016–2017, more than 60 brands or agencies each contributed large volumes of ads on pirate sites, with some premium brands generating between 5 million and 25 million impressions per month. By 2018, no premium advertisers could be identified at high volumes on pirate sites.

Europe: The Trustworthy Accountability Group

On the heels of its success in the United States, TAG has set up and expanded operations in Europe, where the same issues and goals exist, and many of the same stakeholders in the United States also operate. For example, more than 130 non-U.S. companies from 27 countries have applied for TAG registration. In early 2018, TAG announced an agreement with the United Kingdom’s leading standards body and opened an office in London to help expand its operations in Europe.[43] On February 12, 2019, TAG launched Project Brand Integrity in Europe to help advertisers and their agencies avoid brand risk and damage by monitoring pirate sites and alerting them to the placement of their ads on those sites.[44] White Bullet, a “Digital Advertising Assurance Provider” under the TAG Certified Against Piracy Program, scans the top ad-supported, infringing sites serving European markets in order to identify ads from reputable brands appearing on such sites. When a brand has ad exposure on infringing sites, White Bullet notifies TAG, which then contacts the advertiser or its advertising agency to alert them to the ad misplacements, so they can then take remedial action.

Europe’s Efforts to “Follow-and-Cut-Off-the-Money” Going to Piracy

As part of its “follow-the-money” approach to IP enforcement, the European Commission developed a MoU on online advertising and IP rights (appendix A). As former vice president of the European Commission Andrus Ansip stated at the signing, “MoUs are a key pillar in the work on the enforcement of IPRs.”[45] This represents a key development, as the enforcement of copyright online has stereotypically been characterized by a lack of shared approaches between countries at the European Union level.

The European Union is starting to use specific voluntary agreements to limit advertising on piracy websites and mobile applications that infringe copyrights or disseminate counterfeit goods, including by integrating parts of TAG’s European operations into these agreements. On June 25, 2018, TAG, White Bullet, and many European trade bodies signed the European Commission’s Memorandum of Understanding on Online Advertising and IPR.[46] As part of this, TAG offers a Certified Against Piracy Program through which companies can demonstrate they adhere to the requirements of the MoU.

Specific voluntary agreements are operationalizing this broader framework to address different parts of the digital piracy ecosystem in Europe.

Australia Should Establish an Infringing Website List to Help Brands and Advertising Agencies Avoid Placing Ads on Piracy Sites

Australia should emulate the growing number of countries that use updated lists of piracy sites to help major brands and advertising agencies avoid placing ads on piracy sites.

For example, the United Kingdom has set up a process to identify and update a central infringing website list (IWL) to help reputable brands and advertising agencies avoid placing ads on piracy sites. The central goal of these systems is to ensure reputable advertisers don’t inadvertently provide financial support for piracy sites by placing ads on their sites—which might otherwise happen as ads are often automatically placed by software without direct human intervention.

Initially developed in 2013, Operation Creative is a voluntary arrangement set up by the United Kingdom between the City of London Police Intellectual Property Crime Unit (PIPCU) and various advertising and rightsholder stakeholders to identify websites engaged in copyright infringement and take remedial measures targeting them.[47] PIPCU is funded by the United Kingdom’s Intellectual Property Office.[48] As part of this, rightsholders identify and report copyright-infringing websites to PIPCU, which then evaluates and verifies the websites are infringing copyrights. PIPCU then contacts the site owners in an attempt to give them the opportunity to engage with the police and remove the content. If the website fails to engage and comply with the police, then PIPCU moves to remedial measures, such as contacting the domain registrar to seek suspension of the site, or cutting off advertising revenue by adding it to the IWL.

PIPCU’s IWL is the first of its kind in that it represents an online portal containing an up-to-date list of the key copyright-infringing sites, identified and evidenced by the creative industries and verified by PIPCU. Indicative of the need for these types of initiatives, the head of PIPCU estimated that a single website owner involved in large-scale piracy can make as much as $84,200 a year from advertising.[49] Operation Creative supports broader follow-the-money efforts in that it is available to all agencies involved in the sale and trade of digital advertising, with the goal of allowing them to voluntarily cease the placement of ads on these piracy websites.

The program has been successful. A March 2017 report documented a 64 percent decrease in advertising from the United Kingdom’s top ad-spending companies on copyright-infringing websites (comparing 205 websites on the IWL in both January 2016 and January 2017).[50] Furthermore, another study from White Bullet in June 2017 showed an 87 percent drop in advertising from licensed gambling operators on illegal sites that infringe copyright laws (as compared with the previous year).[51]

Elsewhere in Europe, Denmark set up an IWL based on websites determined by Danish courts to be facilitating copyright infringement. The Danish government helped facilitate a MoU/code of conduct between the various Internet stakeholders so ISPs can block access to, and advertisers don’t show ads on, these sites.[52] Other countries, including Italy, Germany, and Spain, have announced their own initiatives to tackle suspected ad-funded IP infringement.[53]

The success and easy scalability of the IWL model has led many countries in Asia to also set up their own IWLs. In Asia, Indonesia (October 2017), Malaysia (October 2017), Hong Kong (December 2016), Vietnam, and Taiwan (September 2017) have set up IWLs.[54] On October 3, 2017, the Hong Kong Creative Industries Association reported Hong Kong’s IWL scheme resulted in the removal of advertisements on infringing websites by 50 brands in Hong Kong, and reduced traffic to a number of infringing websites by 14 percent on average.[55] This is progress, given online advertising spending in Hong Kong in 2017 was estimated to be around $730 million, of which approximately 30 percent went to these infringing websites.

Infringing Website Lists Go Global at the World Intellectual Property Organization

WIPO and its member countries have enacted a program to support the growing use of IWLs by individual countries. In June 2019, it set up a central database—called the “Building Respect for Intellectual Property” database—to allow authorized agencies in member countries to upload lists of piracy websites they’ve identified in their own systems to help others decide for themselves which sites to cut off from advertising revenue.[56] It is important to note here that these are not sites wherein occasional infringing content might be posted, but rather sites dedicated to piracy. Approved actors from the advertising sector (such as brand owners and advertising agencies) are allowed to download this list to inform their own decisions as to where they place their ads (i.e., it’s voluntary). To accommodate the different systems and approaches, WIPO stipulates the central criteria that each website on uploaded national lists be a “site of concern,” meaning it’s reasonably suspected the website is deliberately infringing copyright and related works. Responsibility for managing these lists, and any right of appeal or review, remains with the managers of the national lists, not WIPO.

Use Voluntary Agreements to Cut Off Piracy Websites From Payment Processors and Other Financial Services

Australia should join or setup its own voluntary agreement to cut piracy websites off from the financial system, similar to the RogueBlock agreement (which does not have any Australian members).

For example, in 2012, the International Anti-Counterfeiting Coalition (IACC), a Washington, D.C.-based nonprofit organization devoted solely to combating product counterfeiting and piracy, launched the RogueBlock initiative to provide a streamlined approach to targeting the online sale of counterfeit or pirated goods in the United States. The initiative was supported by (and continues to receive the support of) the U.S. Intellectual Property Enforcement Coordinator. IACC has over 250 members, including law firms, investigative and product security firms, government agencies, and IP associations.

The four core goals of RogueBlock are to increase the cost of doing business for, and decrease profits to, the counterfeiters; shrink the universe of third-party acquiring banks willing to do business with rogue merchants; facilitate an efficient use of resources by both IP owners and partners by sharing relevant data and avoiding the duplication of efforts; and disrupt and dismantle counterfeit networks.[57]

RogueBlock cuts off financial flows to piracy websites via “payment processor agreements,” which allow members to directly lodge a complaint regarding a counterfeiter or piracy operator.[58] Members use a secure process to lodge reports about infringements to IACC, which reviews them and then passes information about the infringement on to such affiliated payment processors as MasterCard, Visa International, Visa Europe, PayPal, MoneyGram, American Express, Discover, PULSE, Diners Club, and Western Union.  The program aims to disrupt the processes of counterfeit sellers by blocking their ability to take payments, thereby cutting off a key pathway for piracy operators.[59]

RogueBlock is considered a success, as it provides a win-win for all parties involved. Rightsholders are able to provide timely, relevant intelligence—and in the process aid payment providers in policing bad actors that seek to misuse legitimate commercial tools for illegitimate purposes.[60] To date, the program has terminated over 5,000 individual counterfeiters’ merchant accounts, which has impacted over 200,000 websites.[61]

RogueBlock’s success in the United States has led to its expansion to Europe. In April 2017, IACC and the City of London Police announced a collaboration to target counterfeiting through the RogueBlock initiative. The program expands RogueBlock to encompass the .uk domain wherein the British authority processes complaints.[62] The collaboration is part of PIPCU’s Operation Ashiko, which aims to tackle the online trade in counterfeit goods and protect the integrity of the U.K. domain tree by suspending websites committing IP crimes. The initiative supports PIPCU’s IP enforcement objectives by providing a streamlined source of counterfeit websites that are identified by rightsholders and that includes all the information required to take action against them. Since its inception, Operation Ashiko has suspended in excess of 20,000 websites by working with industry partners.[63]

Additionally, in June 2018, the EU announced a similar collaboration between the European registry for Internet Domains and IACC. This collaboration namely exists to address cybercrime in the .eu (and other) domains, especially as a means to target counterfeiting.[64] As of yet, according to IACC, the international program resulted in the termination of over 5,000 distinct counterfeit sellers’ accounts and included over 200,000 websites.[65]

Another New Tool: A Small Claims Court for Copyright Infringement

At the end of 2020, the Copyright Alternative in Small-Claims Enforcement (CASE) Act was signed into law in the United States. This act pertains to copyright infringement cases concerning small businesses and allows merchants to take their claims to small claims court. TheCASE Act seeks to streamline copyright disputes through a small claims tribunal set up within the U.S. Copyright Office. This entity will hear cases before a three-judge panel of experts, with damages capped at US$15,000 per claim and US$30,000 in total. The vast majority of copyright infringements in the United States are less than US$1 million, with nearly 56 percent amounting to US$120,000 or less. This new small claims tribunal opens an avenue for businesses (especially those that typically have less funding available to pursue legal action against copyright infringement) to protect their intellectual property without having to shell out for expensive copyright attorneys.[66]

The U.S. Copyright Claims Board (CCB) is in its infancy, opening its doors in June 2022 and issuing its first final determination on February 15, 2023. Thus, it is difficult to declare with certainty the CCB’s effectiveness and impact. However, the CCB received approximately 300 case filings in its first six months, more than 80 percent of which involved infringement of visual art.[67] CCB proceedings are a voluntary and low-cost alternative to judicial litigation. So far, respondents opted out of the board’s jurisdiction in only 20 cases, indicating the voluntary nature may not be as problematic as opponents of the CASE Act foretold. Nearly one-third of cases to date involve damages of $5,000 or less.

However, this alternative is not without its limitations. More than 130 claims were dismissed prior to reaching the merits, often due to noncompliant claims. Also, works must be registered with the U.S. Copyright Office prior to filing a complaint. Given the CCB’s voluntary nature, claimants also can’t target foreign respondents.

Appendix: Europe’s MOU on Efforts to Cut off Advertising Money Going to Piracy

On June 25, 2018, 14 companies and 14 associations signed this MoU.[68] Signatories agreed to measure the effectiveness of the MoU by reporting on the concrete means they individually have in place, and by monitoring the impact of the MoU on the online advertising market. The agreement has an assessment period of 12 months, during which the signatories will meet quarterly.

The signatories were Adform, Amobee, Associação Portuguesa de Anunciantes (APAN), Associazione Italiana Commercio Estero (Aice), comScore, Hrvatsko udruzenje drustava za trzisno komuniciranje (HURA) (Croatian Association of Communications Agencies), DoubleVerify, European Association of Communications Agencies (EACA), European Gaming and Betting Association (EGBA), Google, GroupM, Integral Ad Science (IAS), Internet Advertising Bureau Europe (IAB Europe), Internet Advertising Bureau Italy, Zwiazek Pracodawców Branzy Internetowej IAB Poland, Internet Advertising Bureau Slovakia, Internet Advertising Bureau UK (IAB UK), ISBA, OpenX, Publicis Groupe, Sovrn, SpotX, Sports Rights Owners Coalition (SROC), TAG, Uniunea Agentiilor de Publicitate din Romania (UAPR) (Romanian Association of Communications Agencies), Utenti Pubblicità Associati (UPA), White Bullet, and the World Federation of Advertisers (WFA).[69]

According to the European Commission, the MoUs complement the legislative framework that continues to be the basis of the fight against counterfeiting and piracy. In conclusion, it states that the European Commission will hold further discussions in an effort to develop other MoUs, in the interest of stakeholders and society as a whole.[70]

Endnotes