Picture of Owen Atkinson

An independent publisher tweeted me the other day. His company had developed a free iPhone application, that had done well, but hadn’t produced a single sale of the book it was created to promote. His tweet summed up the problem that faces bewildered authors and publishers after the assertion in the review by Ian Hargreaves that copyright holders need to develop attractive new business models to make their content pay, rather than rely on enforcement of existing copyright law.

Watertight solutions, aimed at making punters opt to pay for rather than pirate copyrighted work, take time to develop...

Well, doh, Ian Hargreaves' review! Isn’t that exactly what the creative industries have been trying to do for the past 15 years? The trouble is, it’s easier said than done. Watertight solutions, aimed at making punters opt to pay for rather than pirate copyrighted work, take time to develop and market to the so-called ‘freeconomy’, which is based on the idea that content is free to users, with payment coming through indirect means, such as advertising. Such solutions, which aim to ensure fair remuneration for creators and owners of that ‘content’ also require investment, which makes it all the more important that laws designed to protect copyright are enforced.

Not that internet service providers (ISPs) feel that way. Most have sought to avoid the legal requirement to block pirate sites when informed by copyright holders. That is why ALCS Members should welcome a High Court ruling in July in favour of the Motion Picture Association. It ordered that internet service provider BT must block the notorious pirate website Newzbin 2 from enabling its members to download illegal copies of films.

In his ruling, Mr Justice Arnold stated that BT had an obligation to block the site, because “it knows that the users of Newzbin 2 include BT subscribers, and it knows those users use its service to receive infringing copies of copyright works made available to them by Newzbin 2”. It was an unequivocal judgement that sends a clear message to ISPs.

“We have a shared responsibility to show that the internet is a safe place in which to do business and that the law is upheld,”

Stolen goods
“We have a shared responsibility to show that the internet is a safe place in which to do business and that the law is upheld,” says Publishers Association (PA) chief executive Richard Mollet. As for ISPs’ objections to being expected to ‘police’ the internet, Nicola Solomon, general secretary of the Society of Authors and a lawyer by background, says their failure to enforce the law is the opposite of policing: “It’s analogous to selling stolen goods.”

Given that the PA receives about 1,000 reports of ripped off books a month through its Copyright Infringement Portal, her outrage is understandable. Lack of payment undermines working writers’ ability to work. “Quality writing does not happen if people are not paid for it,” Solomon says, “If authors are not being paid for their work, they might write a first novel, but they are less and less likely to write a second, third or fourth because they have to work in other jobs to make ends meet.”

There is a sense of resentment among ISPs that the ruling will cost them money; investigations and the letters sent to suspected copyright infringers will need to be paid for. But Richard Mollet dismisses any such complaints outright: “BT makes more money every year in annual profit than the entire music industry in this country. The ISPs are perfectly capable of taking the measures the High Court expects.” Besides, as Robert Levine’s book Free Ride points out (see our Editor’s interview with him), the cost of copyright infringement is already undermining the profitability of copyright holders: Viacom estimates it spends $100,000 a month on it.

...the petulant response of Newzbin to the judgement reflects a mentality that has more in common with the summer rioters looting mobile phone stores than free speech campaigners.

And yet the petulant response of Newzbin to the judgement reflects a mentality that has more in common with the summer rioters looting mobile phone stores than free speech campaigners. In an interview with BBC Online in July, ‘Mr White’, a spokesman for Newzbin, turned on CleanFeed, the technology BT uses to prevent access to child porn, which the High Court ordered should also be used to block Newzbin 2.

“Our users don’t wish CleanFeed to work and based on a preliminary technical assessment we think it will be trivially breakable,” he threatened. “We have the sand, and if needed we will pour it in CleanFeed’s engine oil.” Remember, the technology they propose to break in order to watch films for free, is used to stop the dissemination of child pornography. Let’s stop using the term ‘pirate’ when describing those who participate in, or condone such illegal activity. Let’s replace it with one that reflects their grasping mentality even better. What about ‘e-looters’?

Enforcement, education, enablement
No one believes the Newzbin judgement will make the problem go away but we can make e-looting less attractive through a mixture of enforcement, education and enablement. Andrew Kernahan, public affairs manager for the ISP Association, says that ISPs would prefer education to enforcement in the battle to reduce copyright infringement: “People, especially teenagers, are not aware of copyright, and so education is as important, if not more so, than enforcement. There has to be a carrot as well as a stick.” He believes ISPs, while reluctant to police the internet, would support any educational initiatives as part of a wider settlement between themselves and the creative industries.

“People, especially teenagers, are not aware of copyright, and so education is as important, if not more so, than enforcement. There has to be a carrot as well as a stick.”

Such educational initiatives could build on existing programmes like that pioneered by FilmEducation. Launched in 2007 it has a range of teaching resources aimed at 11 to 14 year olds, which include booklets, DVDs, competitions and events. These communicate clearly what copyright means in material terms and for the future prospects of students who wish to work in the UK film industry.

Managing director of FilmEducation James Lennox explains: “Efforts to create amongst young people a greater understanding and appreciation of the film industry – and other creative industries – its challenges and opportunities, as well as the significant contribution the film industry makes not only to the economy but to society in general, is key to reducing the demand for pirated content.” A similar programme, backed by ALCS, called Copywrite! was launched this year through the National Schools Partnership (see here for more on CopyWrite!).

To enable people to download the content they want legitimately, there are proposals to develop blanket licences paid for by ISP customers, and these deserve support. Such a licensing system would operate in a similar way to the licensed photocopying fees collected and distributed by ALCS. The success of music streaming services Last.fm and Spotify bodes well for such solutions.

In 2009 MusicAlly, a digital music and business information company, released research that claimed that in 2007 some 42% of 14 to 18 year olds illegally shared music once a month. By January 2009, following the launch of licensed music streaming sites Spotify and Last.fm, that figure had dropped to 26%, with 65% of the same age group preferring to stream music legally once a month.

No one would claim these initiatives will stop e-looting, but they will make it less attractive to punters, and they will go some way to mending the broken relationship between creators and ISPs – all of whom need to work together to stem illegal filesharing. In the meantime, by clarifying the law and the role of ISPs, the Newzbin 2 judgement provides some succour to writers left powerless in the face of widespread e-looting of their work.

Danuta Kean is books editor of Mslexia and deputy director of the Creative Enterprise Centre at Brunel University, as well as a freelance writer and publishing analyst. Her work appears in national newspapers and specialist publications. Passionate about books, film and music, she is also a keen advocate of the rights of creators to decide how their work is used and what they are paid. After all, she has a mortgage too!

© Danuta Kean

 

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Since this article was written, new developments regarding some of the content of this piece have taken place. Please see our story ISPs pushed into UK-wide crackdown on piracy here.