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16/7/08 The legal regulation of the internet: a copyright perspective
The proliferation of copyright material on the internet is immense, particularly with regard to musical works and films. There is extensive scope for such material to be communicated to the public through peer-to-peer software without the consent of the copyright owner. This has proved a divisive issue for the music industry, especially with consumers becoming increasingly unwilling to purchase material due to ease of access to free online content.
This problem was recognised by the Gowers Review of Intellectual Property (2006), a British Copyright Council report commissioned by the Government. The Review notes that peer-to-peer software is potentially a useful means to disseminate and exploit copyright material, but that this potential utility is compromised due to problems with establishing liability for infringements.
Currently it is virtually impossible to establish liability for software providers or ISPs in this context - it is the end user who is culpable. However, it would in practical terms be unrealistic for copyright owners to bring actions against each individual peer-to-peer software user. Furthermore, for an ISP to be liable the copyright owner would need to show authorisation of the restricted act (which would be risky, time consuming and costly). The problem is compounded by the fact that attempts to legitimise peer-to-peer software through, for example, licensing agreements have largely proved unsuccessful due to the ease by which consumers can alternatively download content free of charge. The situation seems bleak for copyright owners.
The Review calls for greater responsibility on the part of peer-to-peer software providers, and some recommendations are made, such as amending the Copyright, Designs and Patents Act 1988 so as to include secondary infringement provisions specific to the issue of peer-to-peer software.
The Times reported earlier this year on Government proposals to introduce a ‘three-strikes’ system, whereby ISPs would have an obligation to take action against their customers who are caught illegally downloading copyright material on three occasions*. However, any such proposals have not progressed any further than the deliberative stage. Moreover, in Promusicae v Telefonica (2008) Case C-275/06 the European Court of Justice held that in civil proceedings, ISPs have no duty of disclosure with regard to the personal details of their service-users who are suspected of using copyright material without authorisation.
Thus, copyright owners are rapidly running out of options. It is clear that legislative change is needed in this area, but defining the scope of responsibility and liability for ISPs and software providers is no easy task (which to an extent justifies the slow progress that has hitherto been made).
This problem was recognised by the Gowers Review of Intellectual Property (2006), a British Copyright Council report commissioned by the Government. The Review notes that peer-to-peer software is potentially a useful means to disseminate and exploit copyright material, but that this potential utility is compromised due to problems with establishing liability for infringements.
Currently it is virtually impossible to establish liability for software providers or ISPs in this context - it is the end user who is culpable. However, it would in practical terms be unrealistic for copyright owners to bring actions against each individual peer-to-peer software user. Furthermore, for an ISP to be liable the copyright owner would need to show authorisation of the restricted act (which would be risky, time consuming and costly). The problem is compounded by the fact that attempts to legitimise peer-to-peer software through, for example, licensing agreements have largely proved unsuccessful due to the ease by which consumers can alternatively download content free of charge. The situation seems bleak for copyright owners.
The Review calls for greater responsibility on the part of peer-to-peer software providers, and some recommendations are made, such as amending the Copyright, Designs and Patents Act 1988 so as to include secondary infringement provisions specific to the issue of peer-to-peer software.
The Times reported earlier this year on Government proposals to introduce a ‘three-strikes’ system, whereby ISPs would have an obligation to take action against their customers who are caught illegally downloading copyright material on three occasions*. However, any such proposals have not progressed any further than the deliberative stage. Moreover, in Promusicae v Telefonica (2008) Case C-275/06 the European Court of Justice held that in civil proceedings, ISPs have no duty of disclosure with regard to the personal details of their service-users who are suspected of using copyright material without authorisation.
Thus, copyright owners are rapidly running out of options. It is clear that legislative change is needed in this area, but defining the scope of responsibility and liability for ISPs and software providers is no easy task (which to an extent justifies the slow progress that has hitherto been made).
*http://technology.timesonline.co.uk/tol/news/tech_and_web/the_web/article3353387.ece