Piracy Law

Does the internet facilitate or hinder control of the crime of piracy?

Introduction

The question of whether the internet facilitates or hinders the control of piracy is three pronged. Firstly, it must be acknowledged that the historical development of piracy and how technology has contributed to the ease of music and other forms of media reproduction distribution is not a new phenomenon. This therefore means that specific reasons that set aside the internet as either a hinderer or facilitator of crime control require to be identified in order to fully illustrate the single handed impact of this technology on the crime of piracy.

Secondly, copyright protection law requires not only to be examined in terms of existing rules against copyright theft, but the specific treaties aimed at piracy within the digital era require detailed analysis. This also goes hand in hand with the examination of procedures specific to internet crime that are carried out by the international enforcement groups and government organisations that give the law their teeth.

Thirdly and finally, as the question relates to whether or not the internet facilitates or hinders crime control, there will be an attempt to explore the vague possibility that the internet may possibly be used as a piracy prevention medium.

Part One - Identifying Piracy

Piracy is the breach of copyright that is perpetrated by the illegal reproduction of, most commonly, music and video. The major technological shifts are easily ascertainable as they tend to coincide with the enactment of legislative amendments to tackle new mediums and the inauguration of international institutions to protect and enforce the cause. An example of such an institution is the International Federation of the Phonographic Industry (IFPI), which was set up in 1933, and 1971, as a major turning point in video technology, is the year of amendment of the Berne Convention and the Geneva Phonograms Convention.

This trend of tackling new technologies with new laws is also seen with the WCT and the WPPT, which were enacted by the WIPO to tackle piracy in the electronic era. Piracy is now more widespread than ever with the use of the internet as the primary access and delivery point. The problem is an age old irony in the law that facilitates the perpetuation of this behaviour by allowing the sale and supply of recording and copying equipment but do not permit reproduction for a purpose other than that permitted by the owner of the intellectual property right.

Part Two: >From cassette tapes to the internet, a brief overview of pirate recording

1. Justifying the creation of a crime of piracy

The typical set-up for hard copy distributions that began largely with cassettes and is now more prevalent with CD-R remains extremely varied in that it ranges from sophisticated crime syndicates with the ability to access films, music and computer games prior to legitimate general release, to the seemingly innocent copying of cassettes and CD's for distribution to friends and family.

The UK's Copyright, Designs and Patents Act 1988, carry a two-tiered motive for copyright protection, which is the moral overtone of recognition of authorship and the right to yield benefit in the form of financial remuneration. Aside from this, it is however clear that motives for piracy differ greatly. On the one hand, there is the average individual seeking to save the cost of the product on the high street. On the other hand, organised crime, at the serious end of the scale, represents far higher dangers than the mere placement of the music and video industry into a position of lost profits that jeopardise future film production.

The piracy concept, whose illegality is not entirely clear to hardliners who resent the profits of record labels, becomes more than obvious when taken into consideration with the dangers of organised crime. This clearly designates piracy as a global danger that increases the financial capabilities of terrorists.

2. Types of internet piracy distribution

There are three main types of piracy distribution via the internet. The first in the web file transfer protocol (ftp), which is the process of creating a link-up to the site address that plays pirated music when accessed. Such files can only be accessed or played when the there is a link-up to the net but with the advent of broadband, the disadvantages of this were effectively eradicated on account of ability to access without disruption to the phone line. The creation of unlimited access subscription, together with faster download speeds, solved the problem of limitations and periodic buffering that interrupted free flow of real-time file transfers.

A second method of illegal distribution is that of the more damaging, illegal music providers, such as free download sites that generated revenue from separate advertising enticed by the huge volumes of traffic through their sites. These often contained huge databases of music that were easily downloadable. Similarly, P2P network up-loaders actively supply music and DVDs on their own sites for the benefit of others to download.

Finally there is the medium of hard copy CD-R distribution. Litigation records also show that the vast majority of raids and lawsuits are carried out against the more regular form of pirate operations where tangible mediums are created for the black market. Further to this, despite clear requirements for effective remedies to act as a deterrent to the practice of copyright infringement, the overwhelming cost of seizure and destruction of pirated goods is inhibiting to the cause. It may at first seem that such activities are not in keeping with the analysis of the internet as a medium that possibly hinders or facilitates the control of this crime. However, it must be remembered that the internet as a medium of electronic transmission is an ideal way in which crime syndicates can transmit entire albums, instantaneously overseas, in order for foreign operations to manufacture thousands of copies of their own.

3. The power of internet piracy over earlier forms

As well as the process of instantaneous transmission facilitated by email attachments for the purpose of sending music to be distributed in CD-R form, piracy that is facilitated by the internet phenomena differs profoundly from the more traditional methods of piracy distribution on account of its intangible counterpart. The first reason is the simple fact that there is instant access from the comfort of ones own home to remote files. This has effectively turned the concept of illegal activity on its head by making it EASIER than the usual legal act of purchasing music and DVDs in a store. Prior to the internet, those who sought pirate copies of videos and cassettes had to physically seek the distributors whereas, until the enforcement of copyright laws in the internet in 2004, they were effectively more readily available than legal high street mediums. Ease of access led to a huge slump in media revenue in 2003 and 2004.

The second reason for the profound difference between internet and analogue piracy is that, old considerations of the analogue mediums such as, poor quality, illegal video cassettes that spoil your viewing pleasure, are no longer an issue as digital reproduction from the internet is capable of producing perfect copies of both movies and music. This is however more a result of the digital era as opposed to the internet, when coupled with the concept that a single track, when uploaded, has a global reach, it becomes clear that the internet, as a world-wide medium for the distribution of near perfect reproductions, which is a highly dangerous tool that greatly hinders control of the crime of piracy.

Part Two: The fight back - enforcement of copyright law in the face of the internet

1. International Agreements in place, general application to copyright theft

There are four international treaties that currently protect the interests of copyright owners. The first is the Berne Convention for the Protection of Literary and Artistic Works that is administered by the WIPO and is the main protector of rights of authors and composers to authorise or prohibit reproduction, widespread communication and adaptation of their works. Secondly, the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations is the treaty that protects the record producers themselves by creating rights for payment for the broadcast of products under their labels. The third general international provision is that of the Universal Copyright Convention (UCC) which also protects authors and other copyright proprietors against unauthorised reproduction. Finally, there is the TRIPS Agreement, which is administered by the World Trade Organisation (WTO) and protects all trade related aspects of intellectual property rights and binds obliged WTO members to the provisions of the above Berne Convention. The treaty also provides for a right to authorise or prohibit commercial rental of works and also sets out detailed requirements relating to enforcement such as the requirement for remedies and procedures that adequately deter piracy.

2 Treaties passed as reaction to growing technologies

(a) The Geneva Phonograms Convention

The Geneva Convention for the Protection of Producers of Phonograms Against Unauthorised Duplication of their Phonograms the Geneva Phonograms Convention, came into force in 1971 and was created to combat the increasing phenomena of music piracy. It is more in tune with traditional methods of distribution, such as unauthorised import and distribution but the internet acts as a potential way round this by facilitating electronic transmission.

(b) The reaction to the electronic era, the WCT and the WPPT

There are two WIPO Copyright Treaties which are specifically drafted for the purpose of bringing copyright theft regulation into the digital age and therefore merit the greatest attention. The WIPP Copyright Treaty (WCT) protects authors and the WIPO Performances and Phonograms Treaty (WPPT) protects performers and phonogram producers. The main rights granted extend the copyright theft notion to distributions of computer programs, unauthorised internet use and the protection of electronic methods of protection such as locked documents that hinder ability to remove or alter programs.

3. Enforcement of the Laws

Unauthorised distribution of media products was always illegal on account of the above international treaties and 2004 saw a concerted effort on the part of IFPI after a slow reaction by governments to react to the obvious drop in record sales that became greatly exasperated by increased technological capabilities of broadband in the downloading of music and video files.

Since 2004, there has been a huge increase in internet piracy prosecutions, which are a direct result of the work of international organisations representing the cause. Further to this, a number of initiatives, designed to curtail public use of pirate services, have also been implemented across the world.

3. Dedication to the control of piracy, the International Federation of the Phonographic Industry (IFPI)

The IFPI is an organisation that was set up by the International Standards Organisation (ISO) in order to represent the recording industry in over 75 countries that contain nearly 1450 record labels. Among its priorities is the specific focus to concentrate on the prosperity of the recording industry in the new digital era. In order to achieve this objective, its activities include, anti-piracy enforcement, government lobbying to the cause and litigation against copyright thieves. An example is of a crackdown that took place in Spain following an IFPI circulation by the Spanish Recording Industry Group, AFYVE, of IFPI's Copyright Use and Security Guides. This awareness campaign, which was targeted at Spanish universities, aided in teaching educational institutions of the dangers of transmitting copyright material. The crackdown was on an operation that was intruding on University networks to transmit thousands of pirated music and video software.

(a) The IFPI coding mechanism and the internet

The IFPI encourages use of an International Standard Recording Code (ISRC) which is encoded onto a product thereby providing it with a unique serial number. The use of this method is an ideal tool for the identification of illegal copying in pirate industries. However, it is clear that this method of tagging has drawbacks when taking into consideration the phenomenon of internet piracy. This is because internet piracy churns out millions of illegal copies of music and music videos that are scattered all over the world. The key to enforcement no longer lies in the identification of the copy as illegal, but in the coordinated location of website engineers responsible for uploads and illegal download services and the immediate shutdown of their operations.

(b) Government Lobbying

One of the key methods used by the IFPI of lobbying for government to enforce and even create their own copyright laws is provided via the regular compilation of market research and global industry statistics that illustrate record sales declines as a result of pirate activities. The way in which this is channelled is via a number of regional offices that are located across the globe and they work closely together with national groups. It is however true that all of this cannot work without effective enforcement mechanisms that will countermand the effect that the internet has on hindering crime control.

Part Three: Possible use of the internet as a medium for the prevention of electronic piracy?

Following vast crackdowns, there have been a number of instantaneous closures of illegal sites dedicated to piracy of music and film but many still remain hidden without search engine guides. This was clearly a form of reducing the power of the internet as a medium for piracy but would it be possible to use the internet to aid in law enforcement? In truth, the only strength that could be drawn from the internet's power is its possible use as a method for detecting transmissions and intercepting them via a cyber police scan. However, there are a myriad of human rights factors to take into consideration, especially in relation to privacy under Article 8 of the European Convention for Human Rights. In any case, where one route for the transmission of albums and DVDs is located, the pirates will simply create another.

Conclusion

There is no way of preventing pirate transmissions via the web. On the contrary, it has been established that the internet is a powerful tool for the facilitation of instant access to entire albums for networks of colluding crime syndicates.

Analysis of the ways in which piracy may be carried out via the net also shows that mechanisms of enforcement are all geared towards reducing the power of this medium as opposed to exploiting it by creating a cyber watchdog.

Finally the sheer power of the internet in its global reach, convenience of use and transmission of perfect quality copies, make it the most threatening addition to copyright infringement tools, thereby rendering it a clear hindrance to control of the crime of piracy. It is also worth noting that this hindrance will only increase as the sophistication of the information highway will one day facilitate more widespread downloading of full DVDs.

Bibliography:

Legislation

  • Berne Convention for the Protection of Literary and Artistic Works
  • Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations
  • Universal Copyright Convention (UCC)
  • TRIPS Agreement
  • Geneva Convention for the Protection of Producers of Phonograms Against Unauthorised Duplication of their Phonograms
  • WIPO Copyright Treaty
  • WIPO Performances and Phonograms Treaty
  • Copyright Patents and Designs Act 1988

Text Book Publications

  • D Icove, K Seger and W von Storch, Computer Crime: A Crimefighter's Handbook, (O'Reilly & Associates, Inc, 1995)
  • D Doswell and G L Simons, Fraud and Abuse of IT Systems, (NCC Publication, 1986)
  • E Casey, Handbook of Computer Crime Investigation, (Academic Press, 2002)
  • B Sterling, The Hacker Crackdown. Law and Disorder on the Electronic Frontier, (Penguin Books, 1994)
  • P Grabosky, R G Smith, G Dempsey, Electronic Theft, Unlawful Acquisition in Cyberspace, ( Cambridge University Press, 2001)
  • N Barret, Digital Crime, Policing the Cybernation, (Kogan Page, 1997)

Internet Resources

  • World Intellectual Property Organisation http://www.wipo.int
  • UNESCO http://www.unesco.org
  • The World Trade Organisation http://www.wto.org
  • The International Federation of the Phonographic Industry 1930 saw the invention of cellophane tape that also lead to innovations in the tape recorder, invented in 1892