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"Intellectual Property law is that area of law which concerns legal rights associated with creative effort or commercial reputation and goodwill. The subject matter of intellectual property is very wide and includes literary and artistic works, films, computer programs, inventions, designs and marks used by traders for their goods or services. The law deters others from copying or taking unfair advantage of the work or reputation of another and provides remedies should this happen."
Or as The World Trade Organisation on their website refer to it, Intellectual Property Rights:
"Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive
right over the use of his/her creation over a period of time."
How do these rights and laws fit in with the 21st Century and perhaps the biggest technological innovation of the last 20 years, the Internet?
This essay will discuss how the rise, evolution and use of technology and the arguable illegal misuse of the same technology has both helped and hindered in the lawful distribution of intellectual property, specifically music and film. The problems created by the internet regarding copyright will be explored and included will be the evolution of laws and agreements related to this field of activity. The conclusion will examine possible solutions to the problems highlighted.
"Copyright is first and foremost the right to control copying of a work. The owner of copyright has the right to copy the copyright work, while others do not. By extension, the copyright owner can control the way in which copies are dealt with. As new ways have been found to exploit copyright has progressively been enlarged. Copyright may thus conveniently be viewed as a bundle of rights in a work: the right to copy it, the right to adapt it, the right to perform it in public, the right to sell copies, the right to rent out copies and so on. These rights are proprietary rights, that is to say they can be transferred and dealt with like other forms of property. They may also be enforced by civil remedies including an injunction and damages."
The introduction of the Copyright Act 1911, which adopted the principle of the Berne Convention and abolished any need for copyright to be registered, is arguably the first attempt in the UK to bring together all existing copyright provisions into one Act. Unfortunately, however, it is now often regarded as a fact of life that copyright infringement happens on a regular basis in the UK and the rest of the world; but how did it begin? The next section will briefly describe how UK domestic copyright infringement has changed since the 1950s. This decade has been chosen as a timely start as it is often cited as the birth of consumerism, Rock 'n' Roll, the invention of the teenager and the rise of media consumption.
During the 1950s people from schoolchildren, students and work colleagues lent each other books and vinyl records to read and listen to, slowly during the 1960s, with regard to vinyl records, the introduction of the compact cassette in 1963, led to the growing trend of home recording and by the seventies the cassette was arguably becoming the most popular portable music-carrying medium ever introduced to the popular music consumer and became incredibly popular amongst drivers once tape players appeared in cars. By the 1980s the capturing of a personal copy of music (legal or otherwise), was well and truly established. This was further heightened by the Sony Corporation, with the Sony Walkman; in essence a Portable Cassette Player (also referred to as a personal stereo) about the size of a paperback book, with built in amplification connected to a set of headphones. Here for the first time, was a practical and truly portable means for the music lover to take their music out with them into their daily life. The Walkman was a huge success and it wasn't long before other companies began to launch their own version of this innovation.
The ability to make countless copies from a pre-recorded original was something the record companies were well aware of and during the early 1980s began to regard this practise as a threat to their profitability and artist royalties. Consequently in the UK the British Phonographic Industry launched a campaign in 1984 with the slogan 'Home taping is killing music - and it's illegal', with a corresponding logo of a cassette and crossbones, often seen on the inner sleeve of vinyl records and pre-recorded cassettes. This slogan wasn't exactly correct as under UK law at the time, namely the Copyright Act 1956 s.14, which related to broadcasts, it was permissible to record sound recordings, namely radio broadcasts, solely for domestic and personal use.
Around the same period the introduction of hi-fi systems with double cassette players, that could copy or tape-to-tape at double speed (referred to at the time as high speed dubbing) were introduced and led to tape swapping amongst friends becoming a well known activity during the 1980s. This led to the most notable legal challenge at the time in the UK; the case of CBS Songs v. Amstrad (1988) using the Copyright Act 1956 s. 21 (3), arguing that Amstrad equipment authorised the public to infringe CBS copyrights. The House of Lords found in favour of Amstrad and concluded that retailers and manufacturers could not fundamentally be held accountable for the actions of consumers in relation to them using the inherent features of an electronic device. This case and the decision reached would go on to have far reaching consequences once the internet became established.
Analogue and Digital
According to Cornish and Llewelyn:
"The computer holds information in the binary notation of 0s and 1s, so that it can be transferred, stored and manipulated to quite extraordinary degrees. Computers are the basic machinery from which has burgeoned the Knowledge economy - an overused term which nonetheless conveys something of the remarkable transformation that has come about in industrial productionâ€¦
â€¦Data stores have become huge and they can be searched as never before by keyword or other indicator. Laborious indexing can be by-passed, and copies can be made from a digital source without error and without depleting the quality of the original in any way."
To reiterate the above, what exacerbates the problem of copyright infringement so much today is the fact that the media available (such as music and film), is digitised, or has the ability to be digitised; in other words, to be converted into highly complex binary noughts and ones. This means that the ability to make copies of digitised material only involves recreating a series of binary numbers from one place to another. This involves no signal degradation and can be performed many times, with each time resulted in an exact copy of the original. This is a by far different to analogue, whereupon the original source signal is transferred either electrically or magnetically to a medium as a continuous signal. It is this continuous signal that is then transferred again to another medium when a copy is made; because of this there is always signal degradation, as the signal is copied from one medium to a new medium (such as tape or video), ultimately making the copying process finite. Conversely, digital copying is theoretically infinite.
During the 1990s, four innovations appeared, in 1993, Digital Versatile Disc (DVD for short) was introduced and consumers for the first time could watch high quality films in the comfort of their own home; in 1996 blank CD media and accompanying writers were launched, so anyone with a computer and equipment could now copy music CDs. The third was MP3 coding, which although developed didn't result in an MP3 Player appearing on the market until 1997. Add into this, the fourth innovation, a rapidly developing World Wide Web and it could be seen that the closing of the 20th century was quickly turning into a nightmare for anyone concerned about copyright.
Black Market and Pirate Copies
At the same time in the nineties, there was an upsurge of cheaper counterfeit (pirated) copies of music CDs and DVD films finding their way from factories in Asia and Russia to Europe. Coupled with this was a growth in domestic or home-grown counterfeiters who, using their computers (or a multitude of them), would copy popular CDs and DVDs to then sell at market stalls and car boot sales.
"According to the International Federation of the Phonographic Industry (IFPI), estimated sales of pirated pre-recorded music in 1995 were US$2.1 billion worldwide. This means that there were unauthorised there were unauthorized sales of 995 million unitsâ€¦
â€¦Russia is the largest pirate market, with illegal sales of 222 million units valued at US$363 million and accounting for 62 percent of sales in the country."
Copyright infringement activity still goes on today, from the recording onto a hand-held video camera of a film in a cinema to the mass importation of pirated media. Films have also been known to be leaked from the editing suites of studios by suspected staff members before they are actually released officially as happened in 2009 with the movie Wolverine by 20th Century Fox.
Today, due to the currently available and constantly improving technology the active copying of the above listed media is widespread and has currently been added to in the last decade by the 'ripping' of music CDs onto a PC to then be transferred onto MP3 Players, with or without Digital Rights Management attached. So now, in the 21st Century the MP3 Player has become the contemporary equivalent of the Personal Cassette Player, but is more convenient, smaller and less prone to malfunction (and can hold far more music than a cassette ever could). Even modern-day mobile phones have the ability to store and playback music files.
Illegal Downloading and P2P - Domestic and Worldwide
The law, both globally and on a domestic level has tried to keep pace with the changes. The remainder of this essay will discuss the problems and issues surrounding the dissemination of copyrighted material in the modern world, with the internet being the primary focal point.
On the domestic front, the UK in the last fifteen years has seen an increase in the speed of internet connections, coupled with the growing storage (memory) capacity of hard-drives, meaning that a typical song (of MP3 quality) can be downloaded in seconds rather than hours and DVD quality films can be downloaded in hours rather than days. Once downloaded, the MP3 song is usually transferred onto an MP3 Player, such as an Apple iPod; the film is 'burned' onto a blank DVD for playback on a DVD Player connected to a TV. The ease of downloading has been greatly assisted by the growing phenomenon of peer-to-peer file sharing (P2P) which has further infringed on copyright, threatening the profitability of intellectual property and media such as feature films and music.
Peer-to-peer file sharing works on the principle of one computer 'seeding' out a particular large file or small file, itself a copy of the original source (often film, application or music) into many smaller parts or pieces, to many other computers (referred to as peers) to download. These computers then connect up to one another (often referred to as a 'swarm') and reassemble the file whist, at the same time, uploading (giving back via the same internet connection) parts that have already been obtained. Eventually the computer with a 100% reassembled file (in other words, an exact copy) then becomes a 'seed' and continues the process, unless disconnected from the internet. There have been many legal challenges to this type of activity, most notably Napster, a file sharing music site for MP3 files, who in 2001 were found to be held liable for 'contributory infringement' of copyright. Another infamous P2P file hosting site is the Swedish based website The Pirate Bay, who in 2009 was taken to court in Stockholm by the International Federation of the Phonographic Industry for copyright infringement. The Pirate Bay used the defence that they only hosted torrent links to material that they themselves did not hold on their own computers. After a lengthy trail, that saw half of the charges dropped, all four of the executive founders of the website were found guilty of 'assisting in making copyright content available' and sentenced each to a year in prison. The four appealed, which resulted in a
reduction of their prison sentences but an increase in their fines. Currently, The Pirate Bay website is still operational.
In the UK in response to this growing trend, Lord Mandelson, the then Business Secretary brought forward proposals for the 'cutting off' of internet connections for persistent downloaders but with regards to music, this then led to a counter argument being published in an open letter to the Times. Former members of Pink Floyd and the contemporary rock band Radiohead were of the opinion that file sharing was the modern day equivalent of taping an album off a friend and that most people who liked what they'd copied would eventually go on to buy an original copy.
The government seemed to ignore this point and consequently passed the Digital Economy Act 2010, becoming law on June 8th and operating alongside guidelines laid down by OFCOM. Included in the Act are measures relating to copyright infringment; whereupon a rights-holder has the power to collect the IP addresses of those that they suspect have infringed their copyright to then present to the relevant Internet Service Provider (ISP) who then is obliged to contact the IP owner (computer user) in an attempt to get them to cease and desist their activty. In the event of ISP contact failing, the rights-holder can than approach a judge to start legal proceedings. An important point to remember here is that, under current UK law, the ISP acts merely as a conduit for digital information and is therefore not liable for infringing copyright as covered in the Copyright Designs and Patents Act 1988 s.28A. In much the same way as Amstrad in 1988 only offerred their equipment for sale, an ISP only offers their equipment, in this case their network for hire. What the customer may or may not use this equipment for is not currently the responsibilty of the ISP (as it was not the responsibilty of Amstrad either in 1988).The case of EMI Records (Ireland) Ltd v UPC Communications Ireland Ltd relates to this point and although using Irish (Copyright and Related Acts 2000) and European law (European Directive 2001/29 art. 8), it was decided that UPC, an internet service provider did not have to block, divert or interrupt illegal file sharing; whether it suspected its customers of doing it or not as according to the judgement there had not been a full enough argument and the decision to grant the initial injuction was wrong.
"The pervasiveness of computing in modern society has generated numerous legal questions. Computers and computing are different enough from the kinds of devices and activities with which the law has previously dealt that in many circumstances (not all, but many) it is difficult to know how existing law should or can be applied."
On a worldwide scale, in an attempt to harmonise and strengthen existing global Intellectual Property Rights, the WTO introduced the TRIPS agreement signed in Marrakesh in April 1994 and entering into force on January 1st 1995. It incorporated Articles 1-21 of the Berne Convention and the WIPO Copyright Treaty which deals specifically with on-line digital services and attempted to make internet service providers liable for their responsibility in distribution (in the end this provision was abandoned).
Legitimate Download Sites, Digital Rights Management, Region Codes and Copy Protection
The internet now hosts all manner of aural, visual and textual media. Sites such as iTunes, Amazon and a multitude of online music and movie stores offer films, music and electronic literature legitimately for purchase and subsequent downloading to an end user's PC, so they can own an authorised copy of the original work. In an attempt to restrict the further dissemination of the purchased media by the 'end user', Digital Rights Management was developed. Digital Rights Management is the name given to a sophisticated set of technologies that appeared during the mid nineties as a way of restricting the copying of DVD films. The most basic form of DRM works as an encrypted code that is added to the start of a file (if MP3) or hidden within the file structure (if DVD film), that either matches a code that is held already on the computer or matches a code that is already on the MP3 Player or in DVD Player (stored on a microchip). In short what this means is that any attempt to copy the file invokes a code check that can ultimately stop the copying process (or playing process). DRM has become more elaborate, meaning that it may allow one instance of copying, but no more.
Region Codes were introduced to the DVD market at the very beginning as a way to control globally the sale of DVDs. The reasons relate to regional price variation and regional copyright clashes, as for example company 'A' in China may have the rights to supply DVD 'X' to Asia (Region 3) and Company 'B' may have the rights to supply DVD 'X' to Europe (Region 2). As the price may vary and the royalty sales are regionally specific; each company would not want to their release of DVD 'X' to encroach on the market of the other. It relied on the fact that DVD Players that were sold into different regions would only play DVD films supplied to that particular region. As, however, DVD Players for worldwide distribution were all manufactured in the same factory and 'coded up' for a specific region before exporting, it wasn't long before the codes necessary to 'decode' or 'hack' the player found their way onto internet websites.These 'hacks' would more often than not involve a sequence of numbers being entered into the DVD Player using the remote control. This allowed customers in one region to then buy a DVD via the internet (using a website such as Amazon) from another region, often on sale at a cheaper price and thus being able to play it on their now 'hacked' and 'region free' DVD Player.
Copy Protection, another DRM technique used in some music CDs, was a way to stop a CD from being copied using a PC, unfortunately it meant that many music CDs ceased being Red Book compliant and could not be played on many domestic CD Players. One example of this being White Lilies Island by Natalie Imbruglia released in 2001.
DRM has caused consternation ever since as many believe that it is restrictive and the technology behind it intrusive and a nuisance. However, as of the nature of the internet, there exists a struggle between the corporations and rights-holders against those that develop the necessary software to circumvent the above DRM technologies to 'strip' DRM from MP3, DVD and CD files. This software is regularly posted and available on websites either for sale or for free.
Conclusion - Mixed Signals?
There have been proposals put forward to try and make issues of copyright in the 21st century in a globalised market more manageable and straightforward. These proposals fundamentally centre on rights-holders worldwide desiring to make ISPs more liable for the content transmitted over their networks, using international treaties and changes in domestic law. At the same time rights-holders would like to have more authority to use DRM techniques to protect their products. In the UK, Gordon Brown, the then Chancellor of the Exchequer appointed Andrew Gowers (former editor of The Financial Times), to look into Intellectual Property Rights and UK Copyright law. The Gowers Review of Intellectual Property in 2006, took into account the many technological challenges and chances at the time, that are still ongoing regarding the use of the internet and the use, in general, of home computing and the relation of the two with respect to copyright infringement. It acknowledged the complexity of IP rights and the need for transparency and uniformity in what was becoming (and still is) a maze of complex legalisation and case law.
As Gower writes himself in the foreword to the review:
"Much IP policy is framed by European, and indeed global, treaties and agreements. I recognise that not all the recommendations are within the direct purview of the UK Government. However, I have not shied away from making recommendations with European or broader international import when seemed necessary"
Amongst the 54 new proposals, it was proposed that a person who buys an MP3 Player be allowed to 'format shift' their CD collection onto the device free from copyright infringement. The Gowers Review can be seen as an attempt to introduce elements of the Fair use exemptions of The United States, which extend to sound recordings and inject some rationalism and common sense into the chaos that, due to the digital domain, has become of current Intellectual Property Law and Rights. In America, this has been further added to by a controversial decision in the case of MGE UPS Systems Inc v GE Consumer & Industrial Inc Unreported July 20, 2010 (5th Cir (US)) that effectively condones DRM 'hacking'.
It almost ironic that at the start of the second decade of the 21st Century, P2P downloading could actually outstrip the physical counterfeit CD and DVD piracy market, as if the means to download the latest films and music free from the internet are available from the comfort of one's own home (should they wish), then there is no real need anymore to go to a local outdoor market or car boot sale for a 'dodgy' pirate copy.
Contemporary music artists and performers (such as Lady Gaga, Rhianna and Muse) seem to be more aware of the issues of piracy in today's global digital market. It could be argued that they are touring more and putting on ever more elaborate and 'exciting' live shows; ticket, T-shirt, programmes and other miscellaneous memorabilia sales effectively compensate them from the loss of royalties they experience due to illegal downloading.
A blank media 'copyright levy' has been tried in places such as Canada and
Sweden, but blank CD sales have fallen sharply over the last decade as more and more people opt to use MP3 Players. In the end perhaps one answer may be to for a metered charge based on the amount of data downloaded through an individual's internet connection, irrespective of what the content of the data is, with some of this charge going to a central 'PRS type' organisation for distribution amongst the media industry.
As it stands, the entertainment and media industry have now at their fingertips (or computer keyboard) the biggest market they have ever known. It is not that surprising therefore, that the rights-holders inherent within these industries are concerned with protecting their copyright, but it could be argued that the core problem that may drive all piracy is more to do with an almost David and Goliath struggle, between end users and content providers based around the cost of content (be it music or film) and the perception by end users of huge profits, as it could be argued even with this huge global market, prices charged for content by the industry are roughly the same as prices charged before the internet was truly established and that this only helps encourage some individuals to pirate more.
Perhaps this conundrum boils down to an uneasy compromise being sought amongst the four main factors; P2P downloading, physical piracy, DRM protection and worldwide harmonisation of Intellectual Property Rights. All being played out in the arena that is and continues to be a growing digital domain, the internet. Arguably, there are some whose philosophy would see them rise up against too much regulation of the internet as they would believe it to be against the very spirit of its creation, namely a free platform for the free exchange of ideas. Even so, the internet hosts Intellectual Property and this needs protection, but considering TRIPS, the Gowers Review, UK, US and EC law, the ever growing influence of China, the emerging economies and the profits of the entertainment and media industry on a global scale, it would seem that the protection sought by rights-holders in the this century may end up being of a much more diluted nature than the previous one and much more of a damage limitation exercise for the industry, when evaluated alongside the questionable activities of some end users.