WIPO Helps in the Fight Against Online Piracy

Last month for World Intellectual Property Day, April 26, I wrote a blog posting on pirate site blocking, and the need to find a global solution to the growing global problem of online content streaming piracy. I commented that while the World Intellectual Property Organization (WIPO) does a good job in promoting greater public awareness of the importance of intellectual property (IP) globally, and has made good if slow progress in working towards agreements on international remedies to IP infringement, the solution to growing online streaming piracy rests at the national level because it is only at the national level that measures can be invoked requiring ISPs to block offshore pirate streaming sites. However, despite its inability to require member states to take action to block pirate sites, WIPO has been active in stimulating the exchange of information on ways to combat download and streaming piracy. This exchange of information is achieved through its Advisory Committee on Enforcement (ACE).

The ACE was set up back in 2002 with a mandate to provide technical assistance and coordination (with governments, private and public sector organizations) and information exchange on enforcement efforts. Over the years the ACE has discussed many initiatives but one currently underway that relates directly to the growing problem of online streaming piracy is the WIPO ALERT database, initially called the “Building Respect for Intellectual Property Database” Project.

The WIPO ALERT project, undertaken by the WIPO Secretariat in cooperation with a number of its member states, is an example of a “follow the money” initiative, intended to undermine the economic fundamentals of piracy. This approach looks at various ways to starve pirate websites of the financial resources that underpin the pirate “business model” (if it could be called that). This includes the role of online advertisers, search engines, domain registrars and payment processors, among others. An example of the sort of outreach work undertaken by WIPO in this area is the workshop on “Voluntary Measures to Implement the ‘Follow the Money’ Approach Against Copyright Piracy”, held in Kuala Lumpur last summer in conjunction with the Korean Ministry of Culture, Sports and Tourism and the Intellectual Property Corporation of Malaysia.

Tackling the problem of advertising moneys that support pirate content download and streaming sites is an ongoing problem that affects the advertising industry just as much as the content industry. Pirate sites are known homes for sleazy and inappropriate advertising, not to mention malware and other Trojan Horses but they also manage to attract advertising from reputable firms, usually because of weak application of advertising standards or ineffective ad placement practices such as over-reliance on automated placement programs. In a blog on this topic that I wrote a couple of years ago, I reported on findings from the Trustworthy Accountability Group, (TAG) an advertising industry initiative to fight criminal activity in the digital advertising supply chain. That study indicated that almost 20 percent of digital ad revenue linked to infringing content in the US in 2016 still came from legitimate premium advertising. TAG is working to reduce this amount and has a certification program for which companies can qualify if they meet TAG’s standards of compliance with respect to combatting ad fraud, avoiding malware and removing advertising from pirate sites, but the problem persists. At the most recent meeting of WIPO’s ACE in Geneva in September of 2019, there was a detailed discussion of online piracy, with presentations from Italy, Korea and the EU. The Italian paper, presented by the Italian Communications Regulatory Authority (AGCOM) noted;

“…during its activities, AGCOM noted the presence of a variety of brands on target illicit websites. Examples include leading car producers, payment and betting platforms, and even some pharmaceuticals…Remarkably, these findings seem to contravene the golden rule of brand safety, which implies that there is a risk of a reputational damage if a brand is associated with illegal content or channels. Indeed, the combination of a brand and the environment where this brand is advertised can have unexpected effects on the recipients of such advertisements, such as hilarity, when the result is grotesque or inappropriate, and even indignation and anger, when controversial and sensitive issues are involved. This can have unforeseen effects on the appreciation and success of the respective product.”

Korea contributed a study it had undertaken that measured consumer perceptions of the impact on the value of brands that advertised on pirate sites. The study analyzed 127 advertisements from five “refreshments” of 20 known pirate websites identified by the Korea Copyright Protection Agency. The Korean study revealed…

“…the existence of inappropriate advertising products for minors, including advertising of adult products,dating websites, etc. It also showed that some links in advertisements take users to content such as illegal gambling, which is inappropriate content even for adults. The research shows that illegal gambling makes up the greatest part (45.6 per cent) of the advertised business type and that advertisements customized for website visitors were detected on 6 out of 20 websites. The display of advertisements for well-known brands may help these websites gain credibility (for example, by advertising educational businesses or electronic goods).”

Other legitimate products or services advertised included fashion, beauty products and restaurants. The study then went on to examine consumers’ attitude toward the advertisement, their willingness to buy targeted products, their level of trust in advertised brands and their willingness to recommend the advertised product to others depending on whether the product was advertised on a reputable as opposed to a pirate website. Over 500 respondents participated. In all categories (trust, willingness to buy, recommend, etc.) products advertised on illegitimate sites scored only 70% in terms of consumer confidence in comparison to products and services advertised on legitimate sites. The finding is intuitive and not surprising, but it documents the dangers to premium brands of finding their products on pirate websites in association with dodgy advertising from gambling and dating sites.

In the same WIPO document, the EU reports on progress being made in curtailing advertising on copyright infringing sites by the establishment and signing (under the auspices of the European Commission) of a Memorandum of Understanding between 28 companies and associations (advertisers, advertising intermediaries, and rights-holder associations) to encourage two types of action;

• “collective efforts aimed at limiting the placement of advertising on websites and mobile applications which have been found by judicial, administrative or other enforcement authorities to infringe copyright or to disseminate counterfeit goods on a commercial scale;
• and individual efforts aimed at limiting the placement of advertising on websites and mobile applications in relation to which the advertisers have reasonably available evidence that those websites and applications are infringing copyright or disseminate counterfeit products on a commercial scale based on signatories’ own individual policies and assessment criteria.”

WIPO ALERT helps bring all this work together. It is in essence a common platform where member states can share information regarding infringing website lists that they have established. There are already a number of such national lists, such as the Infringing Website List maintained by the City of London Police Intellectual Property Crime Unit (PIPCU) in the UK, or lists of infringing sites maintained by national authorities in order to implement site blocking orders. In effect, WIPO ALERT is a “master list” of infringing website lists by country that is made available in a controlled environment to “accredited” advertising representatives. As described by WIPO, the intent is to create a;

“secure online platform to which agencies in Member States would be able to upload lists of copyright-infringing websites. Approved actors in the advertising sector (brand owners, advertising agencies and their technical service providers) would be permitted to download the lists to inform their decisions as to the placement of advertisements on third-party websites. This would be a voluntary coordination facility, limited to the sharing of existing information.”

Note the key words here are “secure, approved, and voluntary”. WIPO does not make any judgement with regard to websites added to the list by national authorities. If a site is included on a national list (and submitted to WIPO), it will be included in WIPO ALERT but redress can be obtained by directing complaints about inclusion to the originating national agencies. It is doubtful if this will occur often, or ever, since most pirate websites operate well outside the law and would not bother to challenge their inclusion on any national list. Instead, their modus operandi is to avoid inclusion by changing URL and location. In terms of which advertisers or advertising agencies are given access to the database, WIPO does a check on bona fides and requires a User Agreement. Parties contributing to the database have the ability to exclude users from access to the database. Contributing agencies, who participate voluntarily, are also required to sign a Letter of Understanding with WIPO. In short, there are lots of checks and balances built into the system, which is based on existing national processes. The intent now is to broaden uptake of the platform, both in terms of numbers of national authorities contributing to the database and an expansion of approved users.

Perhaps not surprisingly, this cooperative effort has been attacked by the “usual suspects”, such as anti-copyright blogger Mike Masnick at TechDirt, who with his usual hyperbole declared that “WIPO Now Gets Into The Extrajudicial, Zero Due Process, Censorship Act Over Sites It Declares ‘Infringing’” and his Canadian ideological “fellow-traveller” Michael Geist. Geist makes the unfounded accusation that movie and music associations could, “insert…sites in the database with no oversight, no review, and not even any transparent standards.”

This is patently false. WIPO doesn’t declare any sites to be infringing. Sites can only be entered in the database by an Authorized Contributor of a member state (i.e., a public authority or a private-sector agency approved by its national authorities for the purpose) and, as the ACE document on the project (para 12) makes clear;

“Contributing agencies remain responsible for the validity of their lists. Monitoring of the effectiveness of the system…will continue to be done at (the) national level. Persons affected by the listing of a website on a national list retain any rights of review or appeal available to them at (the) national level. In the event that a site is removed from a national list, the Authorized Contributor concerned promptly updates its list on the WIPO platform.”

The project is proceeding. It was reported at the ACE that agencies in Italy, the Republic of Korea and Brazil had joined as contributors of data. The more member states that contribute to the database, the more effective it will be in providing access for authorized users to a comprehensive global database of bad actors. The users are then free to determine to what extent they will avoid advertising with the listed sites.

A “follow the money” approach to combatting piracy has shown to be an effective tool, and targeting the advertising funds that pirate sites depend on can starve them of income. A tool such as the WIPO ALERT can also help legitimate brands avoid contamination of their image by inadvertent association with sites that also prominently feature ads for questionable or illegal products and services.

It’s up to member states to take the lead in developing blacklists of pirate sites, including the necessary procedures for transparency and redress, but international cooperation and information exchange will clearly be strengthened by this welcome initiative from WIPO.

© Hugh Stephens, 2020. All Rights Reserved.