Unlike some other intellectual property rights, copyright automatically belongs to anyone who creates words and images in any medium. It is not dependant on any registration procedure. Some copyrights may be of huge value even if their owners did not pay a penny or fill in any forms to acquire them.
Copyright has been a feature of English law for over 300 years. From the very beginning, it has needed to adapt to new and changing media. Throughout the 18th and 19th centuries, new legislation gradually extended copyright protection from books to music, dramatic works, engravings, paintings, drawings and photographs. At the same time, the law has tried to achieve a balance between the exclusive rights of copyright owners, to control the licensing of copies and stop infringement, and the need to permit fair access to protected works by members of the public.
Copyright can be a very “low tech” kind of intellectual property. However, these days infringement of copyright takes place frequently through digital media. P2P file sharing, for example, is an infringement of the copyright in the relevant music, films and games contained in such files. It leads to a reduction in revenues for these businesses and arguably reduces the value of future investment.
Another feature of copyright law is the need to adapt it to constant technological change. For this reason, the Gowers report in 2005 and the “Digital Britain” report of last year recommended a number of reforms for the digital age. Several recommendations have been consolidated in a new report published by the UK Intellectual Property Office which deals with a wide range of issues.
Currently, attention is concentrated on the Digital Economy Bill, now progressing through Parliament, which implements a few of the recommendations contained in the final “Digital Britain“ report.
The provisions of the Bill that have so far grabbed the headlines are those which deal with online copyright infringement.
The Bill proposes a two-stage solution to the problem of illegal downloads. In the first instance, if a copyright owner reports a copyright infringement to the relevant Internet Service Provider (ISP), the ISP will be obliged to issue a “notification letter” to the offending subscriber warning him that he is infringing copyright and also providing him with advice on how he can download material legally. This is meant to have an educative as well as a deterrent effect. In addition, the ISP will be obliged to keep records of all infringers of which it becomes aware. In certain circumstances, the information in these lists may be made available on an anonymous basis to relevant copyright owners. All the detail of these initial steps will be set out in a code of practice to be developed by the ISPs with the approval of OFCOM. OFCOM will monitor compliance and inform the Government if it considers that the measures are having an appropriate effect in reducing copyright infringement.
Unofficially, Lord Mandelson – as the Business Secretary, he is the Bill’s sponsor – believes that notification letters may deter a significant amount of illegal file sharing. If, however, instances of file sharing are not reduced by 70% by April 2011, the second stage will kick in. This enables “technical measures” to be taken by ISPs after July 2011 at the request of OFCOM. Technical measures may include reducing the bandwidth of infringing subscribers or even cutting off their connection to the Internet altogether.
It goes without saying that these measures are extremely controversial. If they are enacted into law – which may well depend on whether the Bill is passed before the forthcoming General Election – they could infringe the human rights of the file sharer and of other users of his computer who are not infringers. The Open Rights Group considers that a suspension of Internet connection to entire households on account of a single person’s conduct is unacceptable. There may well be further questions of compatibility with EU telecommunications law.
A further controversy surrounds the provision in the Bill that allows the Secretary of State to amend primary copyright legislation if technological developments that may happen in future facilitate new ways of infringing copyright. This has been opposed on the grounds that it gives too much power to the government of the day. The argument has been answered by Lord Mandelson with a suggestion that the measure would only be used in the case of serious infringement with widespread effects on businesses and consumers and that any secondary legislation would be properly scrutinized by Parliament. This remains to be seen.
Copyright has for centuries aimed at a balance of rights and has largely created a self-policing system. The arbitrary and extended powers in the Bill that would enable the government to regulate copyright use create a real possibility that this balance would be upset. Official moves to deny people their Internet connections are unfair if they do not depend on a clear and unambiguous finding that copyright has actually been infringed.
A lot of work will need to be done on likely amendments before the Bill becomes law and developments are anticipated with interest.
This article was first published in Newsbrief, Spring 2010.
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