Opinions Matter

5 Opinions

• Emma Barker says:

  January 5, 2012 at 1:31 pm

  As technology advances at a rapid rate many benefits have been bestowed upon us. However, as the popularity of the internet increased so too did the rate of digital piracy, specifically via peer-to-peer (P2P) file-sharing. As the Gowers review pointed out, despite the efforts of copyright holders to deter copyright infringement through civil proceedings this has had little effect. Thus, in an attempt to protect the holders’ rights, the Government enacted the Digital Economy Act 2010 (DEA). This is intended to introduce a graduated response system whereby ISPs are required to send notifications to subscribers alleged to have committed copyright infringement. If infringing acts continue then court proceedings can be initiated against the subscriber, or they could find their internet access is suspended. However, it is argued that the provisions of the DEA are disproportionate, as the detriment to society and the advancement of technology is greater than that of the copyright holder.

  P2P file-sharing is not unlawful and P2P technology is used by Skype, Sciencenet and online messaging networks. Even universities and libraries use it to circulate materials to consumers. The activity only becomes unlawful when used to access copyrighted material. However, the DEA has the potential to prevent the use of file-sharing altogether with the strong enforcement regime it imposes.

  Whilst attempting to provide more protection for copyright holders the provisions of the DEA could in fact cause technology to take a step back. The creation of open access Wi-Fi has allowed members of the public to connect to the internet at practically any location. However, the provisions of the DEA threaten to put an end to this due to the strenuous obligations it imposes on Wi-Fi providers when offering internet access to customers. The fact that providers such as cafe’s, universities and libraries could be considered an ISP means that they would have to comply with the requirements of the DEA. Alternatively, subscribers can be held liable for the infringing acts of another if they have allowed that person to use their internet service. Thus, Wi-Fi providers could be held responsible for the actions of their customers and ultimately face having their account suspended. However, it is more likely that in such a situation providers would remove their internet access rather than incur the additional costs and liabilities imposed. This is just one example of the way in which the DEA has the potential to reduce the public’s access to the internet, and therefore hinders technological developments.

  It is not so much about the law “catching up” with technology, but rather with the law recognising and allowing for the rapid rate at which technological advancements are made. In doing this the Government must ensure that the rights of copyright holders are also properly protected, but not in a way that is detrimental to the interests of the public. In order to strike the correct balance an alternative approach, such as voluntary collective licensing, should be adopted in which proportionate measures are implemented.
• Robert Craig says:

  December 8, 2011 at 7:18 pm

  The law may in some instances be able to catch up with technology, however, the Digital Economy Act 2010 (DEA) fails to strike a balance between copyright holders’ rights and the societal benefits of new technology. The internet is the embodiment of not only a free market, but also of democracy and it is in this light that digital copyright must be considered.
  The DEA focuses on protecting the commercial interests of copyright owners by facilitating the tracking down of and litigation against alleged infringers. This approach in the UK of attempting to regulate the internet to protect the interests of copyright holders is simply a measure in trying to reinforce a conception of copyright that has not taken account of the digital age. Whilst other countries such as Switzerland have reassessed copyright in a holistic sense, taking account of how digital file-sharing has affected rights holders’ other commercial interests and the production of Swiss culture, insisting in a recent report by the Swiss Federal Council that it be taken in a positive manner, the UK has legislated to try to repress the actions of an estimated 7 million Britons in a nod towards the lobbying of entertainment companies.
  Since the DEA has come into force there has been no reduction in digital copyright infringements and even previous to this, successful court actions have been few and far between, with the injunction against BT to block the file-sharing site Newzbin2 in 20th Century Fox v. BT (2011) being only a notable exception rather than a trend-setting precedent. Even if legislation such as the DEA were able to be successfully enforced on a large scale, this would only drive copyright infringers to evade detection. The democratic nature of the internet means that whenever attempts are made to regulate it, if a large number of people wish to express themselves or gain access to something then they will be successful, whether that be in communicating in countries where internet access is highly controlled or illegally downloading music in the UK. Anyone with a reasonable level of computer literacy would be capable of evading detection under the DEA through a number of methods such as manipulating their IP address or hacking wireless networks that do not belong to them. It is therefore highly possible that any heavily enforced regulation might push internet users in this evasive direction rather than encouraging them to purchase copyrighted material.
  The Swiss approach seems to be working for the music and film industries at least. According to the report by the Swiss Federal Council, consumer spending on music and film has remained constant, irrespective of file-sharing. In addition to this, widespread file-sharing has forced innovation in the market so that, for example, musicians are focusing on other revenue streams such as live concerts and special edition CDs. However, such methods may not be so successful for other forms of media such as e-books, where authors have limited alternative revenue streams. Therefore allowing digital copyright infringement could not only seriously harm the commercial interests of authors and publishers, but also damage the production of literature in its entirety.
  Considering that neither government regulation nor a digital copyright free-for-all appear to strike a reasonable or successful balance, it is the free market of the internet that must force innovation from copyright holders keen to maintain their commercial interests. Whether this means building protection into music files, or working with companies such as Apple, who through their introduction of the iCloud will charge users a fee to sync any of their illegally downloaded music, it is a better way of protecting commercial and artistic interests than lobbying governments into trying to regulate and catch up with the democracy of the internet.
• Karim Amijee says:

  November 17, 2011 at 4:50 pm

  The rise of the digital age has brought an array of societal benefits. Information bank websites like Wikipedia and Youtube, combined with communication platforms like Facebook and Twitter allow media content to be shared with one or one million people at the click of a button. The digital sphere is a space where media content is freely available and can be easily shared, which is often viewed as conducive to a better informed and educated society. The range of free business and communication resources, such as Google Docs, Dropbox and Skype, also provide essential tools (free of charge) for businesses in their initial start up stages.

  These societal benefits are sometimes viewed in tension with the legitimate commercial interests of copyright holders who have developed the intellectual property that internet users access for free. As these industries have put time, effort and money into developing their products their rights should be enforced so they receive financial reward for their work.

  Legislation like the Digital Economy Act 2010 has indicated the government’s commitment to upholding and trying to protect the commercial interests of creative industries, particularly music and film who have both suffered huge losses to digital piracy and illegal file sharing. The Act has attempted to define a set of legal procedures through which copyright holders can enforce their rights. This involves increasing the ease of tracking down and suing online offenders, and a “mass notification system.” In addition, the Act contains technical measures compelling internet service providers to reduce or terminate broadband service to persistent offenders.

  This legislation has encountered a number of difficulties. There are significant concerns around enforceability, and aspects of the legislation still need to be clarified. Currently, it is waiting for the European Commission to approve changes to the payment for implementing procedures, which will be split 25:75 between ISPs and the copyright owners.

  The question of whether such an act, upholding the rights of copyright holders is at odds with the societal benefits of the internet, is dependent on the extent to which digital piracy and illegal file-sharing platforms are held responsible for these benefits. In all the examples mentioned above, some of the most celebrated innovations of the digital age, these are not illicit organisations defying copyright; they are copyright holders allowing users to enjoy their product free of charge, around which they can create alternative revenue generating infrastructures.

  The internet and associated technologies have provided numerous benefits to society by expanding our capacity to share information. But it is copyright holders making the choice to provide free access, rather than illegal downloading, that is at the heart of these gains. Legislation must focus on effectively protecting copyright holders from piracy (whilst accommodating for legitimate sharing such as private copying). The digital age is putting immense pressure on many copyright holders to provide free access to their product, but effective legislation should ensure this is their choice, and that they reap the rewards if they choose to.
• Gavin Creelman says:

  November 8, 2011 at 9:40 am

  The law as it stands is astonishingly out of touch with the reality of everyday use of digital media. As observed by Ian Hargreaves, the continuing illegality of “format shifting” runs the risk of bringing the law into disrepute by placing literally millions of citizens in technical breach of copyright every day: although the present Government has stated its intention to bring the law into line with reality in these respects, the very same issues were raised by the Gowers Review in 2006, and the Labour-era Digital Economy Act (DEA) is conspicuous in its failure to deal with them – similarly, it is entirely possible that the Hargreaves report will simply find itself added to the increasing backlog of ineffective intellectual property studies.

  Indeed, not only does the DEA fail to address the spectacular discrepancy between the legal theory and practical reality of digital copying, it is also arguably unrealistic in its attempts to favour the interests of rights holders. It is true that the most powerful provisions of the act – those allowing ISPs to be compelled to block sites infringing copyright – will not be implemented by the Coalition, but in 20th Century Fox v. BT (2011), Arnold J granted an injunction against BT to block the notorious file-sharing website Newzbin2 even absent the DEA powers. This may not be offensive in principle: while there is certainly a justification for allowing more open sharing of medical research, say, and an arguable case for encouraging the spread of culturally meritorious works, in reality sites like Newzbin2 are used by people who simply want to avoid paying to see the latest Hollywood blockbuster. This is undoubtedly unfair to the many who work hard to realise such productions, and as always in the field of intellectual property, the law must seek to balance the commercial and moral interests of rights holders against both the cultural and more economically selfish interests of users in more open access to material. However, it is questionable exactly how effective such a regime of site-blocking could ever hope to be – it is more likely that the law will find itself fighting a Hydra of illegal downloading than “catching up with technology” if it seeks to pursue such a course.

  Ultimately, it may be that the law is simply inadequate to stem the tide of internet-based copyright infringement – the continuing difficulties in identifying individual users breaching copyright online appear to render the imposition of a regime of personal sanctions sufficient to avert the attraction of free entertainment impossible. As such, the way forward may in fact lie in greater technological protection built into digital files themselves (such as more advanced forms of DRM), or simply with the placing of faith in the morality of users and ingenuity of the market to ensure the survival of the creative industries. Fundamentally, until the law may avail itself of technology appropriate to restrain online infringement, it may in fact be impossible for it to “catch up” to the technology enabling it.
• Rebecca Young says:

  November 1, 2011 at 8:06 pm

  The Digital Economy Act was introduced by the Labour government to protect the music and film industries by combating illegal file sharing and has proposed that ISPs, such as BT and TalkTalk, send warning letters to those suspected of infringement and even shut down the connection if the illegal activity continues. ISPs have objected to this measure on the grounds of cost to themselves and the alleged violation of the freedom and privacy of internet users. While the Act itself has yet to be enforced and may prove ineffective in doing so, arguably the courts have the power to compel ISPs to play a greater role in curbing illegal file sharing. Certainly this was the case in Twentieth Century Fox v BT (2003) where media companies were successful in their action to get BT to block access to Newzbin2, a site which promoted film piracy. In addition, there is still the unresolved problem of how to identify individual users who may be one of many users of a registered connection or an unauthorised third party user of a wireless connection. This legislation alone is controversial, but is also part of a much wider debate on how to bring our approach to intellectual property rights into the digital age relevant to a range of internet businesses as well as the creative industries.

  Arguably a balance needs to be struck between the mandate of protecting the rights of copyright holders and modifying our intellectual property framework to allow economic growth and innovation. The independent review conducted by Ian Hargreaves (May 2011) has put forward ten propositions based on the idea that our rigid copyright system is not suitable for a digital economy. Hargreaves suggested that a cheaper and more streamlined system, concurrent with the exceptions allowed by EU law, would encourage businesses. Digital communication technology involves routine copying of text, images and data so our IP system should reflect rather than hinder this aspect of internet business. IP rights can protect a business’s profits, but can also prevent innovation and development in a range of fields, including science, by preventing third parties from accessing protected information.

  Certainly there are benefits to adopting a more efficient and accessible system, however it will be difficult to legislate effectively to provide the right degree of both protection and freedom for a range of industries, business and artists who have very different IP requirements. A degree of flexibility would benefit certain industries and professionals, but this could be very difficult to regulate. Problems could include deciding who could have access to certain information and for what purpose, as well as how to avoid a huge influx of case law. The law can catch up with technology, but this endeavour will require a real consideration of the role IP rights play in terms of encouraging and discouraging businesses as well as effective enforcement.