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问题：非法从互联网下载版权资料的行为非常广泛，任何试图实施有效法律限制的做法都是徒劳的。
Question: The illegal downloading of copyright material from the internet is so extensive that any attempt to impose effective legal restriction is futile” Discuss
从数字时代开始，互联网上盗版和非法下载诸如音乐、电影、视频游戏等版权资料的现象越来越普遍。一方面，这种做法支持那些不太幸运的消费者（他们无法购买昂贵的材料）获取更广泛的在线资源，并将其用于教育或娱乐目的。另一方面，它挑战了法律机构和创意产业在平衡版权所有者合法利益和公共利益方面的不懈努力。由于从互联网上非法下载是本质错误的，不应被鼓励，因此建议适当设计和不断修改法律和法律补救措施，以跟上技术进步，使盗版得以继续。然而，有人批评说，英国目前的法律框架不能满足这些要求，而且在解决网络版权侵权问题上仍然发挥着非常脆弱的作用。
Piracy and illegal file downloading of copyright materials such as: music, film, video games… over theinternet have become increasingly popular since the digital age began. On the one hand, this practicesupports less fortunate consumers – who cannot be able to purchase expensive materials – to accessa wider range of online resources and use them for educational or entertainment purposes. On theother hand, it challenges the relentless effort of the legal bodies and the creative industries inbalancing the legitimate benefits of copyright owners and the public interest. As illegal downloadsfrom the internet are intrinsically wrong and should not be encouraged, it’s suggested that the lawand legal remedies should be designed appropriately and amended constantly to keep up with thetechnological advances that enable piracy to continue. However, it has been criticized that thecurrent legal frameworks in the UK could not satisfy those requirements and still play a very weakrole in tackling online copyright infringement.
本文旨在讨论一种观点，即对非法下载的法律限制在实践中并不有效——无论任何尝试——因为网络盗版如此广泛。虽然在当前的背景下，这一声明似乎是正确的，但评估问题的不同方面，特别是法律机构和政策的作用，对于提供更客观和全面的观点至关重要。因此，本文将分为两个部分。第一个是评估英国网络版权侵权的程度。第二个重点是政府和相关利益相关者在处理网络盗版问题上的投入。
This paper aims to discuss an idea which claim that legal restrictions on illegal downloads are noteffective in practice – regardless any attempts - because online piracy is so extensive. While thisstatement seems to be true under the current context, evaluating different aspects of the issue,especially the role of legal bodies and policies, are crucial to provide a more objective andcomprehensive perspective. Hence, this paper will be divided into two sections. The first oneevaluates the extent of online copyright infringement in the UK. The second one focuses on theefforts of both the government and related stakeholders in dealing with online piracy issue.
To begin with, it’s reported that online piracy has made huge losses in revenue for the creativeindustries. According to an analysis prepared by LEK for the Motion Picture Association in 2005, theworldwide motion picture industry, including foreign and domestic producers, distributors, theaters,video stores and pay-per-view operators, lost $18.2 billion in 2005 as a result of piracy (MPA, 2006,p.4). In the UK, the British Phonographic Industry (BPI) indicated that online copyright infringementcosted the music industry over £200 million in lost revenue in 2009, and the cumulative total lossesbetween 2001 and 2012 were estimated to be £1.2 billion (Mene, 2010). In addition, a recentresearch of Kantar Media into the extent of online copyright infringement in the UK has revealedmany useful information. It’s estimated that amongst those internet users who consumed contentonline over the three-month period (March – May 2015), 31% consumed at least one item illegally.Besides, levels of infringement varied significantly by content type; for example: 25% of those whoconsumed film, and 26% of those who consumed music, did so illegally, while the lowest incidenceof illegal consumption was among online book consumers (10%). As the result, 96 million music trackswere accessed illegally online in this period - the highest volumes of infringement across thecategories studied. Meanwhile, the TV programme category infringement levels have raised from12million in the previous wave to 16million this wave (Kantar Media, 2015, p.4). All those figuresdemonstrate a fact that online copyright infringement is a serious problem and more attempts needto be made in order to eliminate this activity. While there are no easy solutions, many lawyers believethat the most effective way to tackle online piracy is to adopt a three-pronged approach across thefollowing key areas: (1) Using legal remedies, (2) Creating lawful commercial alternatives and (3)Increasing education and awareness. (Mene, 2010)
The following section will examine how effectively government and related stakeholders have adopted the approaches suggested above to cope with online piracy issue.
Currently, in the UK, there are two primary legal frameworks could be used to settle disputes related to online piracy, as well as facilitating industry cooperation to reduce online infringement, namely: Copyright, Design and Patent Act 1988 (CDPA) and Digital Economy Act 2010 (DEA)
CDPA is an Act of the Parliament of the United Kingdom that received Royal Assent on 15 November1988. It reformulates almost completely the statutory basis of copyright law in the United Kingdom,which had, until then, been governed by the Copyright Act 1956 (legislation.gov.uk, 1988). It servestwo main purposes: (1) To ensure people are rewarded for their endeavors and (2) To give protectionto the copyright holder if someone tries to copy or steal their work. Under the Act, online copyrightinfringement is currently punishable by a maximum of two years imprisonment (see sections 107(4A)and 198(5A)). By comparison, the maximum custodial sentence for infringement in respect ofphysical goods is ten years (The Intellectual Property Office, 2015). This apparent inconsistency inpenalties was highlighted by the Gowers Review 2006 (Recommendation 36 stated that there shouldbe matched penalties for online and physical copyright infringement) and in fact, was criticized as amain reason why CDPA 1988 could not deal effectively with online infringement. (The IntellectualProperty Office, 2006). Mike Weatherley MP, currently IP advisor to the Prime Minister, also sharedthis view with many industry practitioners and stakeholders when he remarked in a recent discussion
There is currently a disparity in sentencing between online and offline crime that needs to be harmonized. This sends out all the wrong messages. Until this is changed, online crime will be seen as less significant than traditional theft (MP, 2014)
Furthermore, the term “affect prejudicially” used in CDPA was too vague when determining theextent to which a copyright owner needs to be affected before an offence is committed. It was arguedthat a single infringing file could fulfil this requirement in some circumstances (if widely sharedsubsequent to the infringement) therefore setting an unreasonable low threshold for committing theoffence. Though the Government agreed the term ‘affect prejudicially’ “could give rise to an elementof ambiguity”, they insisted that it not likely for a very minor infringement might result in a criminalprosecution since there was no such cases existed. (The Intellectual Property Office, 2015). Given thecurrent illegal downloading and sharing issue, in which a majority of consumer involved use thosematerials for their personal purposes, it turns out to be extremely hard for the creative industries touse CDPA as their main protective tool since it is basically not strong enough to prevent intentions todownload illegally.
The second legal framework designed to tackle copyright infringement is The Digital Economy Act2010 (c. 24) (DEA). Passed in 2010, it took two years since then for the Government to implementthe DEA due to the legal challenges brought by BT and TalkTalk, two of Britain's largest ISPs. Eventhough the initial obligations code for the DEA was drafted by Ofcom by the end of 2013, theimplementation once again was stalled by the Treasury which said that the cost distribution is notfeasible and needs to be rethought (Open Rights Group, n.d.)
The DEA specifies implementation of its copyright enforcement measures in two stages. In the first,known as "three strikes" or "graduated response", ISPs will be required to match their customer dataagainst data gathered by rightsholders about those believed to be sharing unauthorized copies ofmusic, TV shows, and movies. Next they will send warning letters to the subscribers who are soidentified. After a set number of letters – generally expected to be three – subscribers will be takento court for copyright infringement. Implementation moves on to the second stage if the Secretaryof State believes, after a year or more, that the amount of online copyright infringement is notdecreasing as intended. In the second stage, subscribers will be subject to technical measures rangingfrom slowed-down internet access to complete disconnection. While the Act moves the law closer inline with technological developments and provides additional solutions to online copyrightinfringement, it has had its critics and was deemed to be a failure to date. (Practical Law, 2010)#p#分页标题#e#
First, section 17 of the Act enables the Secretary of State to make regulations allowing the courts togrant a website-blocking injunction for a website which has been, is being, or is likely to be used foror in connection with, infringing copyright. This can only be granted if the infringement is having aserious adverse effect on business or consumers, and if blocking the website is a proportionatemeans of dealing with the problem (legislation.gov.uk, 2010). However, many ISPs are unhappy aboutsection 17. The Internet Service Providers Association (ISPA) argued that there had not been enoughconsultation on this provision, and that it would "prevent new innovative lawful models ofdistributing content online" (ISPA, 2010). Additionally, they also concerned that the Act and code arebureaucratic, costly and burdensome to fulfil. Apparently, those objections from related stakeholdershave impeded the implementation of the DEA and diminished remarkably its effects in practice.
Second, a significant technical difficulty is that the identification of internet users is shaky:rightsholders rely on the numbered identifier known as an "IP address" (for Internet Protocol) that isassigned to each device that accesses the internet. Often that device is a single computer, but inmany cases the device is a router behind which dozens of machines may operate. Furthermore,infringers can frequently change their ISP to hide their true identities on the internet, which leads tomisidentifications and errors.
Finally, the Act based on a false assumption that the notification system will work because “theprocedure will finally get ISPs communicating with their customers on this issue" – said Simon Baggs,a partner at Wiggin LLP (Practical Law, 2010). Nevertheless, according to Kantar research, only 10%of correspondents, who consume online content illegally, agree they would stop doing this activity if“my ISP sent me a letter saying they would suspend my internet access” (Kantar Media, 2015, p.41).This figure demonstrated that warning letters – a fundamental tool of “three strikes” approach – hasfailed to discourage the intentions of consumers to download illegally.
In light of the limited success of legal means as discussed above, it’s suggested that the most effectivemethod of tackling piracy is to develop lawful alternatives for consumers to access content online.The music industry, as the most vulnerable object of illegal downloads, has taken many stepsnecessary to protect themselves from this unlawful activity; and according to Ben Allgrove, a partnerat Baker & McKenzie in London, new business model and education are key
We now have a whole generation who take copying as the norm, and changing that behaviour is very difficult, so new business models and education are key (Practical Law, 2010)
First, the music industry is constantly looking for new revenue models. For example: Apple's iTunesand Amazon are among many other music-downloading services where user can purchase digitalsongs. Other sites allow consumers to stream music and listen to it (without buying), such as Spotify,Pandora and Rhapsody. These sites are generally supported by advertising revenue or subscriptionmodels. Spotify is a successful case study. By genuinely applying subscription-based model, whereusers pay a monthly fee to listen to music without adverts, it has attracted millions of users andultimately allow it to compete with major players such as iTunes.
Second, the UK music industry has also attempted to educate people toward the importance ofonline copyright. For example: BPI, UK Music and other bodies have tried to supply teaching materialsto schools, to be used in citizenship and media studies classes. Besides, they have also launched somecampaign such as Music Matter to raise awareness about online piracy. (Why Music Matters, 2010).However, since education – the main emphasis of “three strikes” approach – seems failed to deliverits promises, the music industry must either strive more or find another way to deal with onlinepiracy.
Apart from those attempts, it’s suggested that serious legal actions must be made when onlinecopyright infringement happens on a large scale. For example, in 2012, Anton Vickerman – owner ofsurfthechannel.com – was prosecuted and found guilty of conspiracy to defraud and has beensentenced to four years in prison. It was revealed that surfthechannel.com allowed access to morethan 5,600 films and TV shows and experts have estimated the damages to be between £52m and£198m (Media Lawyer, 2012). In this case, however, the defendant was convicted under conspiracyto defraud (common law) legislation and not CDPA 1988. It means even though the prosecution wassuccessful, it did not build up the body of case law around s107(2A) (The Intellectual Property Office,2015) and demonstrated once again that current legal frameworks could not be utilized to tackleonline copyright infringement.
In conclusion, illegal downloads of copyright materials from the internet have created significantchallenges for both the creative industries and the government in maximizing the benefits of digitalassets and imposing effective legal restrictions. Therefore, along with actively seeking commonconsents among all relevant parties, it’s suggested that the creative industries should constantlystrive to devise new business models to adapt and gradually diminish harmful consequences of onlinecopyright infringement. Last but not least, given the inefficiencies of current legal frameworks, thegovernment and legislators need to looking for more supports and advices beyond the parliament toaddress the issue more appropriately.
Bibliography
1. ISPA, 2010. Third Reading of the Digital Economy Bill ISPA statement.
2. Kantar Media, 2015. Online Copyright Infringement Tracker Wave 5 (Covering period Mar 15 – May 15) Overview and key findings. Cardiff: The Intellectual Property Office Intellectual Property Office.
3. legislation.gov.uk, 1988. Copyright, Designs and Patents Act 1988.
4. legislation.gov.uk, 2010. Digital Economy Act 2010.
5. Media Lawyer, 2012. Internet Pirate Jailed.
6. Mene, A., 2010. Piracy and illegal file-sharing: UK and US legal and commercial responses.
7. MP, M.W., 2014. ‘Follow The Money’: Financial Options To Assist In The Battle Against Online IP Piracy.
8. MPA, 2006. Worldwide study of losses to the film industry and international economies due to piracy. [Online]
9. Open Rights Group, n.d.
10. Practical Law, 2010. Piracy and illegal file-sharing: UK and US legal and commercial responses.
11. The Intellectual Property Office, 2006. Gowers Review of Intellectual Property.
12. The Intellectual Property Office, 2015. Criminal Sanctions for Online Copyright Infringement:Government Consultation Response.
13. The Intellectual Property Office, 2015. Penalty Fair? Study of criminal sanctions for copyright infringement available under the CDPA 1988.
14. Why Music Matters, 2010. Why Music Matters.
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