La gestación de una nueva forma de hacer turismo.

Any empirical assessment of the effect of these provisions in working as a deterrent and actually curbing copyright infringement online is made difficult by the lack of reliable data to quantify the level of infringement in the first place. The Hargreaves (2011) report noted, already back in 2011, that the evidence available for a clear picture of the scale and dynamics of online copyright infringement is surprisingly thin, and that most surveys on the subject are not statistically robust due to the illegal nature of the activities themselves. Moreover, the extent to which illegal access to content online actually amounts to lost sales is a highly contentious issue in making these estimates because it implies counterfactual considerations of what consumers would have done otherwise.

The Commission has acknowledged this state of affairs and commissioned an ad hoc innovative methodology to assess real levels of intellectual property rights infringements (RAND, 2012), based on the relationship between ‘physical’ indicators of infringement and unexpected differences between firms’ revenue forecasts and actual sales. This raised concerns among copyright owners that criticised the proposed approach as inadequate to the media industry on both theoretical and practical grounds. While theoretical arguments did not seem insurmountable, the methodology when proposed could not be pilot tested in the online environment, because industry objected to the reliability of their own estimates and the fact that these would already somehow incorporate anticipated infringements so as to make the proposed methodology circular.

283 _{HADOPI, «Réponse graduée – Les chiffres clés», June 2014 (www.hadopi.fr/sites/default/} files/ChiffresRGjuin14.pdf).

284 _{See on the subject M. Masnick (2010), ‘RIAA Spent $17.6 Million in Lawsuits … To Get $391,000 in} Settlements?’, Techdirt (www.techdirt.com/articles/20100713/17400810200.shtml).

On the contrary, industry insisted on relying on its own calculations consisting of multiplying the total number of infringements by the number of lost sales per infringement (the so-called ‘substitution rate’) in order to derive the overall impact of illegally downloaded files on its sales. This, however, creates some critical issues as regards the neutrality of the monitoring techniques used to estimate infringements and the very controversial substitution rate between illegally accessed contents and sales lost. Therefore, proponents of the innovative methodology did not change their minds as to the validity of their proposed approach.

Point 10 of the Commission action plan actually envisages the publication starting from 2014 of a biennial report on Intellectual Property in the EU economy for more effective monitoring of the impact of the EU’s intellectual property enforcement policy that should be based on the proposed methodology and incorporate online copyright as well, if industry cooperates in the assessment and makes available its ex ante estimates. Still, the first such report has not materialised yet but is expected soon.

On top of these methodological disagreements, it is worth recalling that the physical metrics of infringing behaviour remain controversial. In response to the Hargreaves report the UK OFCOM commissioned more robust surveys (5,000 respondents) based on best practice self- reporting approaches (Mazziotti, 2013) to this aim, but monitoring was then discontinued and few conclusions can therefore be drawn on underlying trends. The intrinsic limitation of survey data stems from the fact that respondents are unlikely to truthfully report purchases of pirated goods. As happened in the UK case randomised response design techniques can help overcome some of these concerns, but cannot fully address the possible lack of awareness of consumers when committing an infringement. Therefore, these types of survey are deemed more reliable as a measure of the variation in the geographical and sectoral scope of unauthorised access, as well as of trends over time rather than of the exact quantities. They also offer valuable information on consumer attitudes to and degree of awareness of the phenomena, as well as on distribution channels.

Given the difficulties in assessing the levels of infringement and their evolution over time, it goes without saying that any assessment of the impact of enforcement in curbing these very same levels represents a real challenge. If two opposite approaches are assessed – the Dutch one where illegal downloading was not prosecuted, and the French one which thoroughly attempted to fight illegal downloading – some impacts have been demonstrated in both cases. At the same time, the assessments suffer from the usual methodological limitations (the metrics used, the substitution rate, availability of panel data over time and space, the weight attributed to other context factors) and face difficulties in quantifying infringing behaviours as a judgment criterion.

The French, for instance, refer to the number of HADOPI notifications as a success criterion, which tends to overlook the problem of possible consumer changes in illegal content fruition modalities. It would be a matter worth further investigation whether there is a trade-off between propensity to act at the Internet subscriber level and recourse to civil injunctions towards commercial scale infringers, as France reports a total of two such commercially- oriented injunctions in the period.

In other countries, such as the Netherlands, some interesting and quite rigorous one-off studies have been undertaken of the illegal online consumption of cultural products and related determinants, but none of them uses a repeatable methodology on a longitudinal basis to allow comparisons between different points in time.

A recent empirical study carried out in the Netherlands (Poort & Leenheer, 2012), would suggest that the short-term impact of website-blocking injunctions in copyright cases, and thus the overall effectiveness of injunctions that underlie its justification, might be in the region of some 5% of total infringement. In fact, according to the study, only 5.5% of all customers (approximately 20% of all infringing customers) of affected Internet access providers downloaded less, or stopped downloading altogether, due to the blocking of The Pirate Bay in the Netherlands. In comparative terms, if data were confirmed, this would make the ‘follow the money’ approach experiment in the UK (-12%) a big success.

However, from the point of view of enforcement measured in terms of output, the Dutch research suggests that targeting the suppliers of infringing content is certainly more difficult than identifying and notifying individual users. So while France can point to millions of email notifications and several hundred thousand registered delivered letters sent to individual subscribers, as mentioned before in the Netherlands only concerning one in five of the sites that are suspected of infringement could the actual infringer be traced. Similarly, Spain was only able to clear 30 disputes in the first year of operations of its scheme out of the 213 requests that were received in just the first month. Moreover, website blocking would come at a cost of some €5,000 each, plus another €100 for any subsequent notification (Husovec, 2012).

Finally, and possibly most important, it is extremely hard to disentangle analysis of effectiveness and efficiency of enforcement provisions from other broader context factors. For instance, there is a growing body of studies285 _{– admittedly not always from independent} sources – showing that as legal online alternatives become known and available in the Member States and consumer satisfaction with their quality and reduced transaction costs improves, demand for illegal services decreases. HADOPI statistics in France would seem to confirm this. Awareness of the legal offer in music is quite high among French Internet users (68%) and is also considered easy to find (77% of users). In comparison, legal offers of TV series and films have slightly lower awareness (64% for both) and are also equally considered harder to find. These are also the two cultural product categories that are most likely to be consumed illegally, with 30% of users stating that they consume them via means that infringe copyright as compared to 23% for digital cultural products overall.