March 2003


Columnist John Naughton used this headline in his February 09 column in the UK’s Sunday Observer newspaper advancing the argument that in the USA industry associations such as the RIAA (Recording Industries Association of America) and the MPAA (Motion Picture Association of America) have used politics and clever rhetoric to develop the concept of ‘intellectual property’ and to portray internet file swopping as ‘theft’ of this property. Naughton says that, in his view, the industry associations’ aim is to ‘signify the moral equivalent between sharing a track from a CD with a friend and stealing your neighbour’s goods and handing them round’. Naughton goes on to point out that the new draft EU copyright directive (see Law Updates, February 2003) will impose criminal sanctions on large scale (e.g., for profit) piracy but not on individual file sharing and copying. See www.briefhistory.com/footnotes. The industry campaigning continues and the RIAA and MPAA have just published a brochure warning companies of the risk of internet piracy and work place related copyright infringement. See www.zdnet.com.au.

COMMENT:Most legal systems recognise that granting ownership of copyright and other intellectual property rights provides economic stimuli for those who create, invent and design for a living and provides protection against others taking credit for, or profiting, from their efforts. However, there are counter arguments that copyright law and intellectual property legislation has perhaps gone too far in protecting the rights of copyright owners. The recent extension of US copyright duration has been criticised as the ‘end of public domain’ and there is long standing third-world opposition to the exploitation of drug patents when free or ‘at cost’ use of these drugs would be of benefit to millions of people. Some claim that copyright protection has gone so far that it now actually stifles creativity and freedom of expression. There are many users on the internet who see nothing morally wrong in file-sharing and many claim that file-sharing stimulates a demand for music (and possibly films). Finally, there are those who argue that intellectual property law protects the ‘owners’ of rights, and these owners are often ‘big business’ or other large scale concerns who are themselves, arguably, exploiting the actual creators of copyrights, designs and patents.

Recent cases featured on this site such as RIAA -v- Aimster (2003), Sony Music Entertainment Ltd. -v-Easyinternetcafes Ltd. (2003) and the original RIAA -v- Napster decision in 2000 show that courts in the USA, and other territories such as the UK and Japan, will award injunctive relief and financial remedies against the facilitators of peer-to-peer file swopping. However, the first instance decision in BUMA & STEMRA -v- KazaA BV (2002) in the Netherlands held that KazaA were not liable for file swopping as the service itself wasn’t unlawful. Furthermore, the recent Norwegian decision to exonerate teenager Jon Johansen who wrote a de-scrambling programme so he could watch his own DVDs on his computer show that the courts do not always follow the music and film industries’ preferred view (although both cases are to be appealed). One developing key thread seems to be that of ‘financial gain’ – a service or individual may be liable only if there is a proven financial benefit from the unauthorised use of copyright material. The recent EU draft copyright directive is designed to provide criminal and civil sanctions against large-scale piracy and counterfeiting, and not against individuals.

Students might want to compare the views of the Recording Industring Association of America at www.riaa.com with the approach of the Electronic Frontier Foundation at www.eff.com. The EFF is the leading civil liberties organisation working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and governments to support free expression and privacy online. EFF is a member-supported organisation and maintains one of the most linked-to websites in the world.

For a different approach to the ownership of creative effort in the music industry seewww.recordingartistscoalition.com. The RAC, whose members include Sheryl Crow, No Doubt, Billy Joel and Don Henley, are lobbying for US legislation (in particular, the California Labor Code – which curtails employment agreements lasting beyond seven years and yet exempts recording agreements from this limit) to be amended to protect their interests as musicians and songwriters, and to curtail the negotiating dominance of record labels. Most recently the band Incubus have filed a lawsuit in the Los Angeles County Superior Court against Sony Music Entertainment to challenge the term of their exclusive recording agreement. The band have been tied to Sony for seven years, but still owe the label four albums. In response (February 11 2003 ), Sony filed a counterclaim at the Federal Court in Manhattan demanding delivery of four albums and alleging potential losses.

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