Is Government in tune with the Music Industry?
On Monday 26 January 2009, The Times reported that the government was not going to require ISPs to be enforcers of people's copyrights on the internet (article by the Media Correspondent, Patrick Foster, headed 'Online Music Pirates are Free to Carry on Copying'). The article reported that the music industry was disappointed with the government’s decision not to use its legislative powers to ensure that the ISP providers impose sanctions on, or restrict access to infringers accessing their sites and illegally downloading products.
The Government is moving less slowly than anticipated in implementing the recommendations set out in the Gower’s Review of Intellectual Property published in 2006. The Government consultation paper Interim Digital Britain Report published on 29 January 2009 is considering three possible options to address illegal peer to peer file sharing – with a self-regulatory code of practice being the preferred start point.
There was clearly a divergence of views between the copyright holders/consumers and those of the ISPs. The ISPs opposed any form of regulation whilst the consumers sought some regulatory protection, given the considerable increase in lost revenues as detailed in the report.
As a consequence, the onus at the present time still falls to the copyright owners to police the internet to obtain information about illegal downloads or file sharing and then take action against the infringer. The government's apparent reluctance to become involved in regulating a practice which is almost endemic on the internet for the next generation of users (who might be the future household disciplinarians and developers of the next generation of copyright internet product) poses a practical problem for the enforcer. Some have taken the option of identifying illegal file sharers and instructing solicitors to write letters claiming damages for file sharing (see article in the Times, 20 August 2008). Others have used 'sting' tactics to catch the copyright infringers red handed at their place of business.
Our own experience has been that to stop an infringer of copyright who has accessed the internet is a partially successful exercise. It is possible to obtain data quickly as to who has downloaded or posted material which infringes copyright. Organisations such as social networking sites (Facebook/YouTube) will remove URLs on a written request; however, these sites take no responsibility for the site content.
Often the exercise to pursue the individual infringer or, as described by David Lammy, the Intellectual Property Minister, the person who leaves an hotel with the soap (see Times article 26 January 2009) is too cumbersome and too expensive. Litigation is worth pursuing against an infringer where the infringer has substantial resources or has derived considerable benefit from the act of illegal downloading. Lord Carter, Communications Minister, considered an alternative form of regulation, namely to effectively impose a tax on broadband users. One wonders if this is more about generating government revenue than protecting copyright ownership or privacy issues when the Intellectual Property Minister has decided not to introduce any legislative restraints on illegal file sharing.
The damage caused to the internet’s credibility and to individuals’ rights in products which they have created is considerable if the internet itself fails to ensure that statutory rights of ownership are protected. The writer hopes that this predictable damage will result in the music and games industries lobbying further for a review of the government's decision. The music and games' industries in particular should be keen to ensure that ministers come up with a more direct and practical protection for their material which is so easily accessed by vast numbers of individuals. The industries should want to balance more effectively the benefits of easy access against the lost revenue and damage caused by illegal downloads and file sharing.
For further information on this topic, please contact Jane Hardy or Sheridans’ Litigation department.
Issued February 2009.
