Response to the Lords Communications Select Committee
The Internet: To Regulate or Not To Regulate?
The Motion Picture Association (MPA) welcomes the opportunity to respond to the Committee’s inquiry into regulation of the internet. As a major part of the audio-visual sector in the UK the MPA represents companies that produce some of the highest quality and most popular creative content. Production of film and high end television is now a digital end-to-end process and our services and content are consumed increasingly through online platforms.
The MPA supports the definition of an online platform that was developed by the European Commission: “online platforms cover a wide range of activities including online marketplaces, social media and creative content outlets, application distribution platforms, price comparison websites, platforms for the collaborative economy as well as online general search engines.
They share key characteristics including the use of information and communication technologies to facilitate interactions (including commercial transactions) between users, collection and use of data about these interactions, and network effects which make the use of the platforms with most users most valuable to other users”.[1]
However, many platforms falling within this definition operate illegally. In every category outlined above, it is possible to operate a business in full compliance with the law, but equally possible - and unfortunately very common among audio-visual platforms - to operate online businesses that disregard legal requirements for copyright, as well as in areas of consumer protection, taxation and data privacy.
Further government action needed
The MPA has welcomed the discussion of platform responsibility that is underway by UK and European policymakers and which, in some areas, is now well advanced with key legislative tools already in place at an EU level (for example mechanisms providing for no-fault injunctive relief against intermediaries to stop piracy). The key principle, we believe, is that online platforms must take proactive measures to detect/remove illegal content online – and not only react to notices received. They should also refrain from providing their services to anonymous operators.
There should be clearly defined responsibilities for platforms, including, but not limited to:
Therefore in practice, platforms should be responsible for acting against illegal (including infringing) content available on, or promoted via, their platforms. They should take a swift, proactive approach to prevent the availability of - and take down - such content. They must also demonstrate a commitment to public education to ensure users are better able to identify infringing, illegal or harmful content and understand how to report it. In addition, platforms should do more to ensure that service providers using their platforms comply with Article 5 of the E-Commerce Directive on online transparency. In many cases this is currently being disregarded by those seeking to cause harm to other users (including members of the public) by spreading malware and by facilitating the proliferation of fraud and other “scam” activity, network infections as well as content that infringes copyright.
We recognise that there are a variety of avenues and policy levers that could be utilised to ensure platforms accept responsibility and take action against illegal, harmful and infringing content, including efforts that are being undertaken by ISPs, advertisers, and other intermediaries. Current approaches include, for example, “follow-the-money” strategies and voluntary site blocking arrangements. There are also several options for potential legislative change such as reform of the E-Commerce Directive to allow, for example, an SME threatened by the linking to and/or hosting of copyright infringing content to be able to bring a case against a platform that has not responded and acted to take down that content.
We believe that, in the first instance, the UK Government should use mechanisms such as the Digital Charter and the upcoming series of roundtables announced within the Creative Industries Sector Deal to ensure online platforms are doing all they can to ensure consumer safety online. Specific sets of roundtables are due to address social media and user upload platforms, as well the digital/online advertising industry and online retail marketplaces. The processes will seek to establish a voluntary code of practice for each area if one or more sufficient issues are identified and confirmed via the initial phase of discussions. The MPA believes that both platforms and rightsholders must be involved in all of these discussions in order to ensure that commitments are sufficiently wide-reaching and address illegal, harmful and infringing content (including advertising and problematic links). We welcome the Government’s commitment to consider further regulation if effective voluntary codes of practice are not agreed by the end of 2018, and we look forward to working with the Intellectual Property Office and others to ensure that tangible progress is made.
About the Motion Picture Association
The MPA is the international trade association for the major companies that invest in, produce, distribute and market film and TV content in the UK, as well as being responsible for an increasingly wide variety of associated businesses and infrastructure initiatives. Our member companies include Disney, Fox, Paramount Pictures, Sony Pictures, Universal and Warner Bros.
The UK is one of the most important markets we operate in and MPA member companies are keen to work with the UK Government to maintain the UK’s status as a world-leading hub for the film and television industries. Our companies are significant inward investors into the UK – and several of them have a strong permanent presence here including owning and operating major production facilities and running production companies in the UK.
The UK has become a world leading hub for film and TV production by creating a supportive environment through the combination of the highest quality technical skills, value fiscal incentives and a robust copyright framework. In particular, an effective copyright enforcement regime is a key element in creating an environment conducive to investment and growth. Content creators must be able to benefit from their creative endeavour in order to encourage significant and sustainable investment in new creative content. Protecting this investment in-turn ensures that UK consumers continue to be provided with a diverse range of the highest quality content across the AV industries.
Call for evidence
2. What should the legal liability of online platforms be for the content that they host?
The MPA believes that the responsibility to ensure illegal, harmful or copyright infringing content is not available on online platforms rests with the platform.
The MPA welcomed the recognition by the European Commission in September 2017 that an online information service (platform) is liable for copyright infringement if, when notified of infringement on its services, it does not act “expeditiously to remove or to disable access” to infringing content (Article 14 E-Commerce Directive). Similarly the Commission’s view[2] is that online platforms must take proactive measures to detect and remove illegal content online, and not only react to notices received. This is a view supported by the MPA. As the Commission notes[3], a platform with a proactive approach to detecting and removing illegal content does not automatically lose its protection under the liability exemption. Online platforms remain exempt from liability when acting expeditiously.
Platforms must therefore undertake a range of proactive measures to address any illegal, harmful or infringing material or activity hosted on their digital “real estate”. It is not sufficient for these measures to be simply reactive. There are a range of measures platforms can take, including; content filtering (to prevent the uploading of content or the offering of links in the first place), de-ranking, de-listing and promotion of legal content sources. The measures taken must be implemented effectively and include adequate mechanisms for measuring their impact.
Providing evidence to the US Senate in recent weeks, Facebook founder Mark Zuckerberg highlighted the potential future uses of AI to identify and report illegal, harmful or infringing content:
‘I am optimistic that over a five-to-10-year period we will have AI tools that can get into some of the linguistic nuances of different types of content to be more accurate, to be flagging things to our systems, but today we’re just not there on that.’[4]
The MPA has long advocated for an enforcement model under which all relevant intermediaries, including ISPs, advertisers and platforms, must take responsibility for ceasing and preventing piracy and the offering of infringing content. We warmly welcome the moves from both the European Commission and the UK Government to recognise this and increase the pressure on platforms to act accordingly. In particular we welcome the recent emphasis by the UK Government to ensure and enforce that activity that is illegal offline is also illegal online.
Action by the UK Government has so far focused on making the internet a safer place for children and adults, primarily by addressing illegal content. For example, the work on age verification being undertaken collaboratively with players from across industry including internet service providers (ISPs) is certainly welcome; however it is focused primarily on content sources which are, in general, authorised and accessible. However this type of work does not fully address the full scope of what is available via the increasing number of online sources via which copyright infringing content (including itself – or accompanied by advertising including - illegal images) may be accessed.
It is therefore vital that the Government pursues a joined up and comprehensive approach to ensuring safety online, recognising that the world of infringing content presents the same level of risk and harm for children and adults as the more traditional online environments, and that platforms should be equally required to take a proactive approach to tackling copyright infringing content, as other illegal and harmful material.
3. How effective, fair and transparent are online platforms in moderating content that they host? What processes should be implemented for individuals who wish to reverse decisions to moderate content? Who should be responsible for overseeing this?
Online copyright infringement causes significant economic harm to content creators and all those that work in the creative industries. An IPO report showed that over a three month period in 2017, 18 percent of all digital content consumed in the UK was copyright infringing. During that period, infringing copies of motion pictures and television programmes were accessed by UK users 20 million and 14 million times respectively from illegal online sources.[5] This is clearly of significant concern to the MPA and our member companies. In addition it is these same sources of infringing content that also present considerable consumer safety and child protection concerns. It is clear that platforms must go further to moderate, and take swift action against sites and services that host illegal, harmful or infringing content.
Many cost-effective technologies exist that can be deployed by both large and small platforms – and leveraged by major rightsholders - as key elements of any platform’s overall anti-infringement toolkit. For example, Content Recognition Filtering (CRF) systems are effective as they can both recognise content carried by uploaded files and then filter them from publication according to business rules. This ensures that the content is not offered to consumers – and if the offer is made, that any transaction request associated with that content could be stopped. It is important that such a system is flexible, as any given work may be represented by many distinct digital files that differ, for example, in technical recording quality. CRF systems do this via sophisticated analyses of the audio and/or video data contained in the file, a process known as automated content recognition, or by – for example – fingerprint or complex hash-based identification and verification.
Integrating a CRF system into a content site is straightforward and the cost typically involves a one-time setup fee and a usage charge that depends on the volume of files identified. The cost of a CRF solution in relation to site revenue is not fixed and can be, therefore, extremely low. There are several suppliers providing solutions and likewise several examples where this technology has been implemented. Indeed, some have been implemented for years already – and, currently, there are available solutions for SMEs and even individuals as well as solutions that are addressing activity in e.g., the Blockchain and “dark web” environments.
Voluntary Code of Practice for Search
One stream of work to moderate the access to infringing content is a voluntary code of practice that was brokered by Government and agreed in February 2017. This has seen collaboration between internet search providers and the content industry to stop links to infringing content featuring prominently in search results returned to consumers in the UK. The MPA was closely involved in driving the creation of the code and is one of the signatories; however this code took several years of detailed cross industry talks, and is therefore not a suitable model to replicate with other efforts to moderate content. We welcome the recognition of the urgency for action from government with the commitment to consider legislation if no effective voluntary code for platforms, advertisers and marketplaces in not in place by the end of the year.
Under the terms of the voluntary code and since its implementation, rightsholders and search engines have been working together to refine a series of techniques to deliver the objectives of the code, including:
Since its implementation the IPO has been overseeing quarterly cycles of research in order to assess the progress that is being made towards the code’s shared objectives as well as specifically considering the extent to which the code is improving the visibility of legitimate content sites. The code provides for ongoing technical consultation, collaboration and detailed information sharing between all the parties to refine the process continually and, where needed, adopt new practices.
To demonstrate the scale of the challenge facing rightsholders, from March to August 2013 MPA members sent takedown notices for almost 12 million links to search engines and more than 13 million links directly to site operators. In the calendar year 2015, MPA members sent notices pertaining to more than 104.2 million links to websites devoted to search and content-hosting. The MPA members received fewer than 210 counter notices during the same time period.
The MPA believes that there is no single answer that will solve the huge challenge of copyright infringement overnight and the code of practice is no different. It has however been an encouraging first step and the MPA welcomed the political emphasis and will behind the creation of the code, and the recognition by search engines that they have a responsibility and a critical role to play in moderating the content they host.
However, this currently agreed voluntary code is not as helpful for audio visual content as for other covered content (predominantly music) – and there remain areas that the code does not address sufficiently. For example, removing pirate sites from search listings altogether – so called de-indexing or de-listing - is not included even for those illegal sites that are already subject to UK High Court orders requiring ISPs to block access to them.
Going forward, it will be important to keep the metrics for measuring the impact of this first, and definitely helpful (as a starting point), voluntary code under careful review as the Government and industry continue to explore the right mix of tools and policies to meaningfully reduce copyright infringement and access to illegal content via search engines.
In addition to the core shared objective of demoting sites in search listings, there are several other important aspects such as addressing the role of auto-complete; it is important that search engines also work to find solutions on these issues as well.
To address this issue fully will ultimately require action in multiple territories. We hope that this code generates useful insights and techniques that, if effective, could be adopted elsewhere of how online platforms can act to address infringing, illegal or harmful content.
Beyond Search
The MPA believes that there is very little risk of error in the decision to take action against takedown notices referencing copyright infringing, illegal or harmful material. The standards applied by the MPA member studios to their takedown notices are very robust, resulting in extremely low error rates (0.00003% - 0.0002%). In the very rare situation where an individual wishes to challenge a decision, they should be able to apply to the search engine for the justification for any action, a process which can be referred via a counter notice to the rightsholder in order to clarify in situations of disputed copyright infringement.
4. What role should users play in establishing and maintaining online community standards for content and behaviour?
We believe that rightsholders have a valuable role to play in creating and maintaining a safe online environment. In order for users to be able to play such a role, widespread public education must be undertaken to ensure that consumers fully understand - and are aware of - what is and isn’t infringing and illegal content, in order to be able to both moderate their own and others’ behaviour and to locate genuine sources.
Consumer education projects such as the Get It Right from a Genuine Site campaign, which brought together content creators ( including the MPA) alongside the Government and the main Internet Service Providers has sought to educate the public about the value of and opportunities offered by the sector and, ultimately, to reduce copyright infringement. So far the campaign has used dynamic videos of behind-the-scenes film professionals to demonstrate the amount of time and effort that goes into making films (in order to protect their livelihoods) and has showcased a number of other parts of the content industry to emphasise the importance of consumers accessing legitimate content. Additional components of the campaign then built and deployed processes to send educational emails to ISPs’ residential broadband subscribers whose accounts are confirmed to have infringed copyright.
Polling has found that in the two years since the education campaign began, 1 in 4 of the target population (16-50 year olds) have now been exposed to the campaign. Importantly, while piracy among the general population has remained generally static over this period, amongst those exposed to the campaign there has been a drop in ‘past month piracy’ by 17.5% since the campaign started - and we have seen an equally impressive and statistically significant fall in ‘past month piracy’ for each wave of research. This demonstrates the impact that awareness and more understanding of the industry and the mechanisms that deliver the content that consumers love can have on those consumers’ behaviour, if they know about it.[6]
Building on the consumer campaign it is then vital for the online platforms to ensure users are able to simply report infringing, illegal or harmful content – as well as to identify quickly, and access, genuine sources of content.
5. What measures should online platforms adopt to ensure online safety and protect the rights of freedom of expression and freedom of information?
Significant efforts are made to report infringing, illegal and harmful content online. Copyright owners alone spend millions of pounds annually combatting online piracy, and countless hours are devoted to identifying this type of content. For example, for notice-sending (addressing files/sources/services directly and/or links to infringing content files), rightsholders must identify the infringing content, notify the platform and follow up on whether the content is removed - an incredibly time consuming and arduous process. In 2015 alone MPA member studios sent notices with respect to more than 46.5 million URLs to hosting sites - and a further 57.7 million URLs to sites devoted to search.
Principally, there needs to be an acknowledgement from online platforms that they should be playing a greater role in reducing the uploading, availability and promotion of known sources of infringing content, digital or physical products via their platforms.
The adoption of the voluntary code of practice for search engines has a been a welcome first step, but there are a number of further measures both search engines and increasing social media and online retail platforms could be taking to ensure online safety.
These include, but are not limited to:
We do not believe that restrictions on the availability online of copyright infringing and illegal content would impact freedom of expression or freedom of information. The production and enjoyment of audio-visual content are significant contributors to the UK economy, and the audio visual sector is a key part of the creative industries which added almost £92bn in GVA to the UK economy in 2016.[7] But the economic contribution is far from the whole story and the audio visual industries are also key contributors to cultural icons, enriching and providing common, shared experiences. Piracy undermines creative endeavour, reducing the value of unique for all those involved in its creation, for personal gain.
6. What information should online platforms provide to users about the use of their personal data?
One of the outstanding problems for rightsholders is the ability for users to do business anonymously on the internet in a manner contrary to Article 5 of the E-Commerce Directive. Host services should have an obligation to hold and list valid contact details and a contact person (notice & action agent) as a threshold condition to benefitting from the privileges in the E-Commerce Directive.[8]
Platforms should not be able to claim protection under the safe harbours in the E-Commerce Directive without having listed valid contact details. Further, intermediaries should as part of their societal responsibility refrain from providing services to anonymous actors.
Transparency and Know-Your-Customer (KYC) requirements which exist to prevent crime in the offline world are not universally applied online. Many professionals in regulated industries are under an obligation to know who they are doing business with, while for instance, hosting and domain registrars/registries openly provide their key services to multi-million euro infringing businesses online. Platforms should be required to take greater steps to ensure users are not allowed to anonymously transact business online, in the same way they would not be able to do so offline.
7. In what ways should online platforms be more transparent about their business practices—for example in their use of algorithms?
While we urge platforms to play a greater role in reducing the promotion of known sources of infringing content, digital or physical products through technological solutions, the use of these solutions must be implemented in an effective manner, ensuring that they are measured and monitored to be continuously (and, hopefully, increasingly) effective.
Such measurement and monitoring is only possible if platforms are transparent in their implementation of the technology and provide rightsholders with accurate and regular data. Rightsholders can then work with platforms to improve the effectiveness of the technology.
The MPA therefore believes that platforms should make a greater effort to ensure that service providers (such as operators of sites and services) that use their platforms identify themselves online and can be contacted. Such transparency is a long standing cornerstone in all forms of commerce, and Article 5 of the E-Commerce Directive (ECD) embodies this principle in the online world by requiring information society service providers to clearly indicate their identity. However, illegitimate service providers routinely ignore Article 5 ECD with impunity, wilfully hiding their identity for reasons including: to infect consumers’ computers with malware, commit fraud, infringe rights of privacy or property, avoid paying taxes, or otherwise violate the law naturally prefer to remain anonymous.
The MPA’s expertise in this area specifically pertains to websites that engage in commercial-scale infringement of copyright in film and TV programmes. MPA’s analysis of a group of 122 sites of concern in that regard in Europe between 2013 and 2015 indicates that only a small minority (13%) of suspect sites listed contact information that appeared likely to be accurate in publicly accessible WHOIS databases, while the other 87% hid their identities. Most of the sites MPA analysed (71%) were hosted via publicly available anonymisation services, such as Whoisguard Inc. and Privacy Protection Service Inc., which advertise themselves as a way for individuals registering domain names to protect themselves from spammers. In the case of commercial information society services providers, however, use of such a service tends to indicate that the service provider is choosing not to comply with Article 5 ECD.
The policy implications of widespread non-compliance with Article 5 are serious, particularly but not exclusively for rights holders. While the data above is focused on the audio-visual sector, where our experience lies and the problem is acute as to illegal sites, investigations by EU Member State consumer protection authorities have found the problem to exist in other areas as well. The ability to operate anonymously online undermines the rule of law in fields such as consumer protection, privacy, and taxation – to name just a few – and enables online criminal activity.
This need for transparency is compounded by the potential loss of access to the public directory, also known as the WHOIS database, which is coordinated by The Internet Corporation for Assigned Names and Numbers (ICANN). WHOIS data gives information about ownership of a domain name on the internet, and indicates how best to contact the owner/s. However, after the pending EU General Data Protection Regulation (GDPR) rules come into force, some or all of the key data in this public directory, also known as the WHOIS database may not be accessible to even qualified representatives of Law Enforcement agencies.
Law enforcement, child protection organisations, anti-human trafficking organisations, cybersecurity firms, health and safety organisations, and intellectual property rights owners, rely upon WHOIS to investigate and combat a wide range of illegal and abusive online activity. According to the European Commission, “WHOIS lookup is the first step in many cases involving abuse of networked resources.”
ICANN has proposed recently changes to the publication of WHOIS data that will severely limit, and in some cases eliminate, access to this important information. If the GDPR is applied to WHOIS in a way that makes most of this contact information disappear from public access, and makes it difficult for legitimate parties to obtain it, it is likely that illegal and abusive activity online and offline will increase and public welfare and safety will be put at risk. We also believe that the Information Commissioners Office has not yet raised any concern about or objection to ICANN’s proposal.
May 2018
10
[1] https://ec.europa.eu/digital-single-market/en/online-platforms-digital-single-market
[2] COM(2017)555 Communication on Tackling Illegal Content Online p. 10 – 11.
[3] COM(2017)555 Communication on Tackling Illegal Content Online p. 11 -13.
[4] https://qz.com/1249273/facebook-ceo-mark-zuckerberg-says-ai-will-detect-hate-speech-in-5-10-years/
[5] Intellectual Property Office, Online Copyright Infringement Tracker, Wave 7 (March 2017), Table 6.1c. Available at: https://www.gov.uk/government/publications/online-copyright-infringement-tracker-survey-7th-wave
[6] Creative Content UK polling 2017
[7] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/662958/DCMS_Sectors_Economic_Estimates_2016_GVA.pdf
[8] (cf., section 512(c) of the DMCA on the obligation to designate a DMCA agent as a prerequisite to safe harbour protection). United States Digital Millennium Copyright Act, http://www.copyright.gov/title17/92chap5.html#512