article
Illegal downloads and the protection of copyright in the digital age
28 July 2008
The end of music copyright?
People are changing the way they listen to and
access music. The IFPI Digital Music Report 2008, published January
this year, notes that, for example, 15% of all music purchased
globally is downloaded. Global digital music sales in 2007 totalled
£2.9 billion, an incredible figure given that digital music only
really became widely available for purchase in 2004. In some
countries, notably in Japan and South Korea, consumer behaviour is
increasingly driven by the convergence between MP3 players and
mobile phones, with mobile downloads now accounting for up to 90%
of total digital downloads in Japan.
This sea-change in behaviour creates problems
for rights holders. The rise in legal downloads is set against a
sharp decline in CD sales. Furthermore, it is set against an
exponential rise in illegal downloads. Estimates for the ratio of
illegal/legal downloads range between 5-to-1 and 10-to-1.
Principally, these downloads are effected
through peer-to-peer protocols, that use software developed by the
likes of BitTorrent to allow individuals to connect to each other
and share content, rather than download content from a central
source. This is much more difficult to regulate.
The result has been a sharp decline in revenue
in the last few years for many labels and retailers. Enders
Analysis, a media research company, has predicted that total global
sales are likely to stabilise at around £23 billion in 2009, way
down from a peak of £45 billion in 1997.
Consequently, after many years of domination
and influence, the major record labels are on the run. However, the
rules of the game may be changing and it is internet service
providers (ISPs) who are increasingly bearing responsibility for
solving the problem.
Giving ISPs legal responsibility for the
activities of their customers has been advocated by the music
industry for some time. The theory is that, since ISPs ultimately
control internet access, creating ISP liability/responsibility for
infringement will result in more effective policing.
The law has developed in recent years with
regard to ISPs. The Copyright Directive, implemented in the UK
through the Copyright and Related Rights Regulations 2003 inserted
s.97A into the Copyright Designs and Patents Act 1988. S.97A gives
the High Court the power to grant injunctions against ISPs where
there is actual knowledge of a third party using its services to
commit a copyright infringement offence. Such knowledge can be
effected through a notice to the ISP from the copyright owner. The
Electronic Commerce (EC Directive) Regulations 2002 require ISPs to
provide such contact details so that notices can be served.
However, many voices in the music industry are
calling for the law to be changed further and it seems that
governments are listening. In 2007 France began to take firm action
in relation to ISPs. A commission led by Denis Olivennes, the CEO
of the Fédération Nationale d'Achats pour Cadres (FNAC), France's
largest retailer, has developed a scheme that has received the
backing of the French president Nicolas Sarkozy. The "Sarkozy
Agreement" essentially involves a 3-way pact between ISPs, the
French Government and rights holders, under which illegal
downloaders will be warned by emails for illegally downloading
music, and ultimately have their accounts suspended or
terminated.
On Friday 22 February 2008 the UK Government
launched a Green Paper on the Creative Industries, which advocates
a similar "three strikes and you're out" policy, in which
identified illegal downloaders are first warned, then suspended and
then ultimately banned from using the internet by their ISPs. The
Green Paper states: "We will move to legislate to require
internet service providers to take action on illegal
filesharing."
Similar initiatives are also being launched at
a European level. The EU Telecommunications Package, agreed by MEPs
on 7 July 2008, requires national regulators such as Ofcom to
promote "cooperation" between ISPs and parties "interested in
the protection and promotion of lawful content", which
arguably requires such regulatory bodies to force ISPs to become
regulators of consumer behaviour.
It seems that, in the UK at least, ISPs are
getting the message. The British Photographic Industry (BPI) has
lobbied hard over the last year for ISPs to be given more
responsibility for customer behaviour. The BPI recently teamed up
with Virgin Media to send hundreds of letters to Virgin’s customers
identified as allowing their internet connections to be used for
file-sharing.
Further, on 24 July 2008, the BPI announced
that it had come to a “groundbreaking” agreement with Tiscali,
Virgin Media, BT, Orange, Carphone Warehouse and Sky, in which the
major ISPs will cooperate to write to customers indulging in
infringing behaviour.
It would seem that the agreement has not come
about without some serious pressure from the BPI. Carphone
Warehouse has allegedly been threatened with court action by the
BPI, presumably invoking s.97A to put ISPs on notice of infringing
activity. Further, the agreement clearly has its limits. Carphone
Warehouse has publically stated that it will not cut off internet
access nor divulge customers’ information without a court
order.
There is no doubt that the internet has been
something of a “wild west” since its creation and greater
regulation is both desirable and inevitable. However, it is
questionable whether ISPs can actually solve the problem.
Firstly, the sheer volume of illegal
downloading could mean that ISPs could be forced to suspend or
terminate the accounts of millions of people. Presumably, the hope
is that such harsh penalties would result in an immediate and
drastic change in consumer behaviour. Certainly it would need to,
or a dramatically high percentage of internet users could find
themselves being suspended or banned from the internet.
It is also unclear just how ISPs would track
illegal downloaders. Certainly they would have to implement some
robust and complex structures of administration to effectively
track all illegal downloaders of music. The exercise would be
neither cheap nor simple and clear parameters would have to be
given to the extent of enforcement. Even once tracked, it is not
always certain that the identified party is to blame, with users
now able to “wi-fi piggyback” on other users' pre-paid wireless
networks.
Another issue is how infringers can be
prevented from simply registering with a new ISP. A system of data
exchange would need to be implemented, which has precedents in the
insurance industry, but would require unparalleled cooperation
between competitors and exchange of customer lists.
There are also data protection issues
involved. This would not necessarily require legislation, as the
Data Protection Act 1988 already provides scope for unauthorised
data use. Paragraph 6 of Schedule 2 Data Protection Act 1988 gives
some legal basis for such a scheme, in that data processing is
permissible "where necessary for the purposes of legitimate
interests pursued by the data controller or by the third party or
parties to whom the data are disclosed, except where the processing
is unwarranted in any particular case by reason of prejudice to the
rights and freedoms or legitimate interests of the data
subject".
Of course, this sets up a
potentially vigorous debate on just what are the legitimate
interests of consumers and do they extend to a right of access to
free music? Why is music commoditised at all in an age where it can
be freely distributed?
This last question is easily
answered but less easily handled. Right or wrong, customers have
got used to getting their music for free. Removing that access will
create an almighty bru ha ha, in which the legal basis for action
will be tested to its limit. Given the necessarily invasive
strategies that ISP-related action will require, that legal basis
cannot be put forward with absolute confidence.
Clearly, the only way to genuinely
tackle illegal downloading is to change the culture of illegal
downloading, and that means persuading customers to see copyright
infringement as what it is: theft. This is difficult given that a
whole generation of music listeners have grown up expecting to
access music for free, and many of the top artists – who are of the
same generation – share that view and give music away freely.
It is undeniably true that
compulsion as well as persuasion is required to change this
culture. However, the approach to using ISPs to enforce the law
seems flawed at a number of levels. It is likely that this is the
first skirmish in what may be a very long war.
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