This website uses cookies so that we can provide you with the best user experience possible. Cookie information is stored in your browser and performs functions such as recognising you when you return to our website and helping our team to understand which sections of the website you find most interesting and useful.
Business News Legal Media Top Stories
‘Digital Britain’ and the music business – a rather long report
By CMU Editorial | Published on Friday 30 January 2009
So, the government’s Communications Minister Lord Carter published his previously reported ‘Digital Britain’ report yesterday, which reviews the relationship between media and content owners and the internet, and the continued roll out of digital content delivery systems.
While its ramblings on ensuring everyone has broadband access to the net by 2012, on accelerating the move from 2G to 3G mobile connections, on the solidifying of non-internet based digital broadcasting networks (telly and the faltering DAB radio network), and on a review of media ownership rules in the digital age, should interest many involved in digital music, it is the report’s provision on combating online piracy that will have got most attention amongst music business types yesterday.
And for those who are looking for government support in forcing the internet service providers to take a more proactive role in policing piracy, and for new laws that provide deterrents to online infringers other than the provisions of civil copyright lawsuits, the report didn’t make great reading.
As previously reported, this time last year the government said it would introduce legislation to force the ISPs to act against online pirates if a voluntary agreement between the record companies and net firms regarding the policing of illegal file sharing couldn’t be reached.
That threat of legislation persuaded the ISPs to start sending out warning letters to suspected file sharers, and to enter into more formal talks with record companies. Said talks are ongoing, though haven’t been hugely productive so far from what we can ascertain.
There was, of course, much talk when the government first indicated it might pass anti-filesharing laws that that might include the three strike policy being developed in France whereby file sharers who ignore two warning letters and continue to illegally share content could lose their interest connection. The French government has established a new copyright body to oversee such disconnections. ‘Digital Britain’, though, makes no provisions for such a deterrent system.
In fact all Carter’s report does is suggest making the current voluntary letter sending system, whereby file sharers get a letter from their ISP telling them how naughty they are, into a compulsory programme, while proposing the net providers be forced to hand over the contact information of any suspected infringers.
The latter point isn’t without significance because it would simplify the process for record companies to sue suspected file sharers. Currently a record company has to sue file sharers twice – once to force an ISP to reveal the infringer’s identity (the label will only have an IP address for the defendant), and then to actually sue the file sharer directly.
However, that proposed provision is about five years too late, because UK record label trade body the BPI – somewhat sensibly – long ago rejected the strategy employed by some of their counterparts elsewhere in the world, Germany and the US in particular, of suing hundreds and thousands of individual file sharers, because doing so just pisses everyone off, and the damages usually negotiated from guilty defendants rarely cover much more than the costs of pursuing the litigation programme in the first place.
Given that the music business has felt that it had the government behind it for the last year with regards to their fight against online piracy, not least because of the verbal support of Culture Minister Andy Burnham, a fact which the ISPs themselves have recognised and admitted was behind their decision to enter into the aforementioned talks with the BPI, the ‘Digital Britain’ report will be a bit of blow for the record companies and music publishers.
While talking the talk, Burnham has previously used the fact the ‘Digital Britain’ report was in development as a way of putting off firm commitments, with the implication that the report would provide some of the framework for helping the music industry in its fight against online piracy. But in reality Carter’s report only really provides a framework to simplify yesterday’s strategy, and formalise today’s existing strategy. The music companies had hoped for more.
BPI boss Geoff Taylor welcomed aspects of the report, but said that it lacked the “bold” move required to secure the future of the UK’s content industries. He told reporters: “Everyone agrees that action is needed to tackle unlawful file-sharing. Requiring ISPs by law to inform their customers about illegal activity is a welcome acknowledgement by government that ISPs should play an active role in ensuring creators are rewarded for their work on the internet”.
But continued: “However, it is hard to see how letter-sending alone will achieve the aim of significantly reducing illegal file-sharing which the government has set itself. Consumer research shows that file-sharers are only likely to change their behaviour if they know that letters are the first step in a process and further action will be taken by service providers. The interim report proposes targeted legal action against the most significant infringers but few people believe that the answer lies in suing consumers. We believe that proportionate measures taken by ISPs would be more effective”.
The boss of cross-music-business trade body UK Music, Feargal Sharkey, also rejected the idea that a move back to civil lawsuits against suspected file sharers was sensible.
He told the press he thought the report demonstrated that the government appreciates “the scale of the challenges faced by the music and other creative industries in regards to unlawful file-sharing”, but added: “we do not believe that the form of intervention proposed by today’s report – suing consumers – is the best way forward. Obviously there is a need for greater dialogue over coming months. UK Music looks forward to working with Lord Carter and government to ensure that our collective goals and shared ambitions are met, and that any answers meet the needs of an industry eager to embrace its future”.
As expected, Carter’s report also proposes a Rights Agency which would bring together representatives from the content and internet industries to discuss measures to combat online piracy – whether they be legislative, education-based or involve employing technology (oh dear, that will be bad old DRM then).
Some had hoped this agency might take on some kind of actual policing role, perhaps similar to the agency being set up by the French to coordinate disconnections of the worst file-sharers. However it looks like the UK agency will be much more of a talking shop, a more formal place where the discussions like those ongoing between the labels and net firms could be held.
Certainly Carter sees part of the agency’s remit to discuss how business models can be adapted to cope with consumer behaviour in the digital domain instead of or, at least, in addition to looking at ways to enforce existing copyrights.
The report notes: “There is a clear and unambiguous distinction between the legal and illegal sharing of content which we must urgently address. But, we need to do so in a way that recognises that when there is very widespread behaviour and social acceptability of such behaviour that is at odds with the rules, then the rules, the business models that the rules have underpinned and the behaviour itself may all need to change”.
He’s right, of course, though short of a blanket music levy charged on ISP fees and distributed to content owners based on how much their content is accessed by any digital means (a model some still advocate as the future, but a model that needs more efficient tracking and royalty distribution systems in place to ever actually work), all business models rely on some kind of enforcement of copyright, and, the labels would say, preferably something more effective that the rather ineffective civil lawsuit approach rejected by more or less everyone, even by the litigious Recording Industry Association Of America, but seemingly preferred by Carter.
