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Wednesday, 8 December 2010

Music and IP conference report: 3

The music industry:
an exotic form of pond life?
Occupying the post-lunch graveyard slot, but far from grave, was Nick Kounoupias (DMH Stallard), who spoke on the myth and reality of music copyright enforcement litigation.Rather than review online infringement, which fell within the purview of some of the other speakers, Nick spoke of the manner in which the music industry functions as an ecosystem, in which damage to the function of any one part of it has an impact on the entire ecology.  Composers and publishers, for example, are both on the same side regarding copyright in published works, but they're at opposite ends of the same contracts.   While players in the music industry often have strong characters and strong opinions, the fact that they operate within the same ecology gives them a shared understanding of how the system operates and how they benefit from it.  Within this ecosystem there is relatively little litigation. Where litigation does arise, it tends to arise from contractual rather than copyright disputes and is most frequently settled out of court.  Disputes between members of the same organisation may be resolved by its own internal mechanisms, also without recourse to court.

Judge Birss QC: PCC
judge and Copyright
Tribunal supremo
For disputes outside this ecosystem, Nick mentioned in highly positive terms the development of the Patents County Court for England and Wales [on which see the PatLit PCC Pages series] as a cheap and effective forum for litigating IP disputes.  There is also the Copyright Tribunal, sitting in lofty splendour above the hurly-burly of normal judicial activity and ruling on the fairness of royalty rates set by collecting societies. Why get excited about the Copyright Tribunal? Whenever there's a new technology, or a new way of using a technology, the question will arise as to how much users should pay, and rights owners should receive, for the use of copyright-protected content.  The Tribunal has been increasingly helpful and, in the light of recent reforms, should soon be even more so.

Sampling: still not covered
by the CDPA
Turning to the Copyright, Designs and Patents Act 1988 (CDPA), Nick reminded the audience of the various "building blocks" of a civil infringement action.  Copyright can be direct, indirect or by authorisation; it can be of all or a substantial part of a work.  Issues such as sampling and liability for parodies are not specifically addressed. In an era of file-sharing, we are bound to see more actions founded on indirect infringement and authorisation (though the latter is hard to substantiate since the legal test of what constitutes authorisation remains narrow).

Nick finished with some comments on criminal infringement proceedings. The CDPA is full of provisions that place criminal liability on various species of commercial infringement.  Liability of directors of infringing companies is a valuable and powerful weapon.  Public bodies such as Trading Standards, the Crown Prosecution Service and the Customs tend to do most of the prosecuting, but private prosecutions are often brought by representative organisations within the private sector. This can be extremely effective and is also highly unpleasant for the defendant, who may not consider himself to be a thief.  There's also a presumption in favour of full costs being awarded in favour of the successful prosecutor in respect of legal costs, expenses etc.

Tomos Jones (Olswang LLP) took over, tackling last year's politically and legally controversial Digital Economy Act (DEA).  As a telecoms man at heart, Tomos's approach was refreshingly different from that of the typical IP man. He waxed lyrical on the constant expansion of bandwidth capacity and its awesome capacity to deliver content.  Typically, he explained, liberalisation of telecoms regulation and its 'light touch' means that, in principle, any form of regulation is content-agnostic.  The DEA has bucked this trend.

Dirty statutes get the
"wash up" treatment
Before the DEA, how could the law regulate and control unlawful file-sharing?  The common law and copyright between them have remarkable flexibility -- if you can find anyone to sue.  Norwich Pharmacal orders could be sought in order to force a third party to divulge details of individual infringing users. The Gowers Review was as concerned with protection of internet users as with rights protection, but the DEA -- which was rushed through in a little scrutinised "wash up" process -- is very much more oriented to rights protection. The DEA operates through a series of "triggers" listed in the DEA, s.3.  Anyone who allows an internet connection to be used can be subject to its provisions, whether they have used the connection themselves or not.  The DEA has an extremely wide definition of "internet service provider", which can even in theory include home WiFi users who subscribe to BT Fon. Initially, at least, just the seven biggest ISPs, those with more than 400,000 users apiece, are targeted. An initial Norwich Pharmacal application is still needed but, with evidence of an infringing use, the copyright owner can then press on.  The user will receive decreasingly polite and increasingly apocalyptic messages concerning his alleged unlawful use. "Connection-throttling" and other punitive measures may result.

Are the DEA's processes and remedies lawful? ISP TalkTalk's application for judicial review of the DEA has been granted and a decision is expected next year.  Compatibility with European Union database norms, privacy and telecommunications rules, the E-Commerce Directive and the Human Rights Act 1998 are all on the agenda.  Is the disclosure of a internet user's personal information a fair and proportional response to an alleged copyight infringement? It is by no means clear.

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