The Government’s Digital Economy Bill set out in November on its road to becoming law, but the powers it would establish to enable the disconnection from the internet of persistent ‘illegal’ file-sharers have been roundly condemned. In this article, specially commissioned by HI~Arts, copyright specialist with Beachcroft LLP, ROBIN FRY, examines some fundamental issues and implications for copyright in the DE Bill…

Robin Fry

Over the last 20 years, the main media industries (music, television, publishing), together with individual creators, have formed a formidable lobby which has succeeded in extending the term of protection for copyright and bringing in new rights such as for payments for on-air broadcast and digital usage. However each success is reflected in a corresponding reduction in what we might have been able to do for free just a few years ago. One example is that of photocopying articles from magazines for personal use: this was ‘fair use’ until recently but is now subject to levies to publishers and other rights owners.

There is a truism that ‘copyright must be respected’. But in truth our copyright law is simply an arbitrary and shifting decision as to where a balance is to be struck between creators and society. It never has been a fixed property that no one can touch.

We clearly need to give protection to the arts but great creativity can derive from the inspiration of others. Leonard Bernstein’s West Side Story is based on Romeo and Juliet which in turn came from Ovid’s Pyramus and Thisbe. Objects in the Hunterian collections have inspired numerous contemporary Scottish artists. And in music, there is huge creativity in mash-ups of older music – and this isn’t just DJ Danger Mouse’s Grey Album but also ‘One song to the Tune of Another’ on ‘I’m Sorry I haven’t a Clue’. And there is no doubt too that fashion habitually calls on earlier eras and designers for inspiration in the current season.

Online, Google images can only operate by infringing copyright in every image shown. And any pasting of interesting articles in emails to our friends is, under our current copyright statute, just as illegal as selling bootleg CDs.

Each of us can be therefore a creator as well as a user at the same time. Is this theft or is it homage? Of course we want to protect our own work. But should it be illegal to photograph a building (copyright owner = the architect) or to create copies of artworks in school art lessons or to sing a song at home? The law can be shaped to support the creative economy but it is reasonable to ask if it goes too far.

The issue of balance between absolute ownership and fair use is at the heart of the file-sharing problem. On the one hand record companies see falling sales and on the other there is a view that limited sharing of music for non-commercial purposes allows experimentation and knowledge of new bands and ideas. Evidence shows that the most prolific sharers are also the most prolific purchasers of music.

Our copyright system is becoming strangulated. It is a paradox that hugely important scientific inventions and medical advances are protected for a maximum period of 20 years (even where a significant part of that may be taken up in the development process). By contrast a few lines of computer code are currently protected for 70 years from the end of the year in which the author dies. And why should jewellery just have a 15 year period of protection but the decoration on a tie last for upwards of 100 years?

What is revealing about the current battle is that the rights owners have been extremely reluctant, themselves, to bring any legal action. Under the Data Protection Act, they are entitled to obtain details of users direct from the internet service providers but have largely not done so. Why not? Because they are fearful of upsetting their customers. Instead they demand that there should be a government response to the problem.

The current proposals are that rights owners identify the wrongful downloads of their content and then ask the internet service provider to send warning letters to the relevant subscribers. Reports are then collated and, if the effect of the warning letters is not sufficient, then the Government will bring in a second stage: this requires internet service providers to bring in “technical measures” limiting download speeds or, in the final event, suspending or completely cutting off internet access for identified individuals.

It is this last possibility that has caused a considerable furore. We currently live in a society where many people’s access to information, public services and competitive goods and services are available largely through the internet. Everything from electoral registration to booking airline tickets and from applications for housing benefit to social networking are for many people – particularly in remoter areas – only realistically available online. Denying people access to that facility will damage them and their families considerably.

There are also problematic issues such as the fact that a family may all use the same internet connection. And with Windows XP, for instance, each user has their own partitioned access to the web where the history and viewing patterns are simply not accessible by others in the household. It would be the subscriber who would be named and blacklisted but all would suffer. Increased use of local wi-fi connections also mean that the host (the subscriber) could be cut off for unknown actions taken by unidentified users.

With continuing decrease in the cost of legitimate services as well as online radio streaming such as via Spotify, the perceived menace that is file sharing is in any case becoming less significant. I suspect that the government proposals will create an edifice that no-one really wants based on laws that no-one admits to designing. If we are determined to expose where all the unauthorised users of copyright works are, then we only need to look in our offices and in our studios and in the mirror.

© Robin Fry, 2009

Robin Fry is a copyright lawyer with Beachcroft.