Show me the Evidence

POSTED BY Rick Shera
22 December 2011

posted in | Copyright | Legislation



If someone's wrongdoing is causing you serious harm and you need something done about it, you might go to Court to seek an injunction. The Court will want to know that whoever you are accusing actually caused the harm and that the nuclear weapon of an injunction is proportionate and appropriate. 

To persaude the Court of that, you need evidence. Evidence is not your opinion. Evidence is actual facts supported by documents or witnesses provided to the Court and to the other side so that they can be challenged and tested. You might call experts to analyse the other side's evidence and present their own analysis of the problem and what has caused it. Your own evidence may also be subject to similar challenge so it needs to be robust and defensible, particularly since you are the one seeking a remedy. You are the one who has the burden of proving your case.

The same should go for legislation. If you want to persaude policy makers and politicians that there is a problem that needs a legislative fix - a kind of injunction forcing all of us to change our ways - then you should provide evidence; evidence of the problem, how it is caused and why your proposed change is suitable. That evidence will then be able to be tested and challenged by others.  If your evidence stands up to scrutiny and your proposed remedy is suitable (proportionate and appropriate), legislation should follow.

Unfortunately, in the copyright debates, this is not the way things have been done. Both in terms of the prevalence and cause of online copyright infringement and in terms of how any proposals might cure any problem, robust evidence has been sorely lacking. Surveys and reports, if they are published at all, do not fully disclose assumptions and methodologies. Submissions made by rightsholder organisations are provided confidentially to policy makers. Press releases by rightsholder organisations are reported without question by media outlets and those reports then trumpeted as evidence in themselves. International treaties, such as the Anti Counterfeiting Trade Agreement (ACTA) and Trans Pacific Partnmership Agreement (TPPA), are negotiated in private.  All of which means that the evidence is questionable and cannot be tested or challenged. In a Court, it would be thrown out.

However, policymakers are starting to question these tactics.  For example:

  • The US Government Accountability Office stated in its 2010 report:

Three widely cited U.S. government estimates of economic losses resulting from counterfeiting cannot be substantiated due to the absence of underlying studies.

  • In New Zealand, our TPPA negotiators issued a strong call for evidence based decisions in a leaked paper:

These developments are underpinned by an increasing pressure from rights holders to internationalise a larger array of issues and find international solutions to issues that have only had limited consideration at the national level. This is particularly true for the area of copyright, where rights holders have been seeking the adoption of more intrusive international rules with respect to a range of copyright issues at an early stage of norm development.
While there may be good arguments for an early and more rapid development of international solutions, such approach bears the risk of being premature, lacking evidence at the national level that would suggest a desirable international norm.[emphasis added]

  • At a Conference on Commercialising IP a few months ago, Kim Connolly-Stone, chief IP advisor at New Zealand's Ministry of Economic Development, reiterated their policy that copyright law changes must be "evidence based".

And it is now good to see the UK Government supporting this push for better evidence with the release of a best practice guideline (pdf). At 5 pages it is a very accessible document and will provide a benchmark against which submissions to policy makers will be able to be judged.

We are reviewing aspects of our graduated response law, the Copyright (Infringing File Sharing) Amendment Act, in 2012 and, in 2013, the whole copyright law regime is slated for review. If those seeking change can abide by proper evidence rules, then they will have truly proved their case.

POSTED BY Rick Shera
22 December 2011

posted in l@w.geek.nzCopyrightLegislation



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