Essential Law - Is copyright keeping up?

One of the major impacts of the Internet is in the field of intellectual property. Now moves are afoot to extend legislation to protect intellectual property and particularly copyright. Sean Egan explains.
Copyright has to some extent always been out of date each new Copyright Act seeks to take account of intervening developments, but since the last major UK Act in 1988 the world has changed radically. The music industry struggled to deal with file-sharing software and only now seems to be reclaiming some of the lost ground on illegal downloads. The next battleground is likely to be the film and television industries trying to prevent illegal copying of films and programmes from websites all over the world. The multitude of sites such as BitTorrent, together with the quality and availability of broadband services, means that file sharing and downloading the massive file sizes of audio-visual content is now easy. The solutions seem to be to change the law, to change how the law is enforced or the widespread introduction of technological solutions to prevent illegal copying.

Proliferation treatise

There are an increasing number of gizmos in all aspects of digital consumption available to the consumer to enable copying and forwarding. You can now have boxes that stream broadcasts to your PC, and we all know about what iPods do these are all steps down the road to true convergence.

But it is not just the proliferation and ease of copying that is the challenge. Copyright seems increasingly out of touch with consumers actual experience, and this is a major problem when looking to enforce rights. The Parliamentary All Party Internet Group when it investigated the issue found that many individuals do not understand that unauthorised downloading is wrong and many students in the surveyed groups were not aware that downloading and sharing was in breach of copyright law.

However, I feel more aggressive enforcement of rights is not the answer last month, a number of cases in the US were reported where students were required to pay between $12,000 and $17,500 to a record company for illegally sharing music. The current proposition that seems to be favoured is that the law be changed to allow some sort of domestic fair use. This does not solve the issue either, as the notion of fair use is limited to domestic use for legally purchased material rather than legitimising unlicensed file sharing.

The Treasury has commissioned Andrew Gowers, former editor of The Financial Times, to review intellectual property (IP) in general and report later this year. The aims of this review are laudable looking at ways in which the IP system could be made cheaper, more flexible, and less complex and also to make an assessment of the impact of new technologies. One of the specific areas he is looking at is a new statutory exception for fair use. The review is seen as a preliminary to future new legislation.

World music

For arts organisations involved in performance, the issues of copyright can be complex, particularly as different media are combined in more complicated and sophisticated ways. From the workshops I speak at, I see organisations often with few resources and no in-house legal capability, striving to ensure that the right clearances are obtained and artists are paid properly for the use of their work.

There is one area, however, that does cause confusion and illustrates the increasingly globalised and remote nature of copyright ownership. Collecting societies such as the Performing Right Society (PRS) and the Mechanical Copyright Protection Society (MCPS) provide a valuable service for their members and enable music users (including broadcasters) a relatively easy way of clearing most rights though it should be said that PRS is generally not able to clear dramatic rights (so called grand rights). The difficulty companies often have is in clearing the use of music when they need to do so direct from music publishers, who are often multinational companies whose interest in a modest fee for local use of material is minimal.

The current stresses and strains felt in copyright law are unlikely to be solved by various changes in the law, such as a fair-use exception though that may clarify the position for some and reduce what may otherwise be endemic infringement. The real objective must be to enable users of rights, whether arts organisations or consumers, to obtain the necessary clearances for the desired use. The collecting society model has worked particularly well for some music rights such as public performance and mechanical rights, but the framework set up by the 1988 Act whereby various collecting societies could be set up to administer different sorts of rights has not had the hoped-for impact.

I feel that the next few years is an important time for ensuring that artists rights remain respected and paid for properly. The solutions are not easy and many working in the arts do not have the funds or other resources to clear the rights they want or protect their rights against others. Any move to make copyright more user-friendly would be something to aim for.