The Authors' Take - Demystifying the ‘Honest’ Infringer: Reorienting Our Approach to Online Copyright Infringement using Behavioural Economics

Demystifying the ‘Honest’ Infringer: Reorienting Our Approach to Online Copyright Infringement using Behavioural Economics

by Sabesh Asokan

There is an intriguing paradox at the heart of online copyright infringement: while most people perceive themselves as law-abiding and honest, the practice of unlawfully downloading copyright material is widespread. How might we explain this contradiction? Could the answers inform our approach to addressing online infringement? These are questions I sought to confront in my upcoming contribution to JIPLP.

To shed light on these issues, I turned to research in the sphere of behavioural economics and psychology. In a recent work, Dan Ariely examined the disconnect between individual self-concepts of honesty and the propensity to engage in dishonest behaviour. In the context of intellectual property law, Ariely’s work suggests that the social acceptability of online copyright infringement, and negative perceptions of the creative industries fuel infringement. This is because people’s moral intuitions about what constitutes acceptable behaviour are shaped by the norms within their social groups, and people often rationalise dishonest behaviour as justified retribution against wrongdoers.

Yet, existing approaches to tackling copyright infringement have failed to effectively address these core beliefs which drive individuals to infringe. The prevailing response to online copyright infringement among developed countries has been to strengthen and expand laws against copyright infringement. Particularly notable developments have been the introduction of graduated response systems and the growing use of website blocking injunctions. While legal measures excel at reducing the supply of infringing content, they have only had modest, transitory success in reducing the demand for such content. I suggest that this is because legal solutions presume infringing behaviour is based on a rational assessment of the costs and benefits associated with infringement, whereas the psychological and structural drivers of infringement are far more complex.  

To reorient our approach to copyright infringement, I examine how social norms, market strategies, and digital architecture can target key drivers of online infringement left unaddressed by legal solutions. Particular highlights include: exploring how to deliberately cultivate a norms-based intellectual property system, examining the potential of blockchain technology to enhance access to legal content, and investigating how to shape the architecture of the Internet to ‘nudge’ consumers to select legal content.  

The approach I suggest does not demand that we dismiss the value of the law in addressing infringement. Instead, by recognising the value of other instruments in the regulatory toolbox alongside the law, we can begin to craft a more nuanced approach, sensitive to the full breadth of its causes.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP).]