Whenever I meet Maltese musicians there inevi­tably comes a revelation which makes me shudder with the realisation that they are being cheated of their rights. Maltese copyright law is categorical, it is not just making copies of one’s work which is protected, but also the adaptation, performance, distribution and making available of the work is also protected and may happen only if the copyright owner gives their consent. At times, this consent is obtained through the work of a collecting society.

The US music industry now has a new approach: giving people the opportunity to pay a settlement fee instead of facing a court case- Jeanine Rizzo

The live performance sector is seriously taken for granted in Malta, if not forgotten entirely. In order for music to be played, rights have to be cleared or licences granted. The time for treating the Maltese musician as somebody you are doing a favour to has passed. It is now time to, as with all other countries, seriously promote Maltese talent.

In this day and age finding music and music files is as easy as breathing. Many people expect it to be as free as the air they breathe too. Downloading and file-sharing have taken the world by storm. Music, films, games are only one click away. But what does that click really cost?

US cases instituted by the Recording Industry Association have found individuals, usually students, guilty of copyright infringement for downloading music and participating in peer-to-peer networks for the mutual downloading and uploading of copyrighted work without the consent of the copyright owner. The unfortunate defendants were ordered to pay hundreds of thousands of dollars in damages.

A more recent case, in which the RIAA is suing P2P site LimeWire was subject to the demand for the payment of damages of what the US court termed an “absurd” sum. The music industry claimed that LimeWire owed it trillions of dollars in damages for the illegal distribution of 11,000 songs – a claim which the judge threw out, rightly, as being preposterous, which according to the court, would “amount to more than the music industry made in its history”.

Participation in file sharing sites is a double whammy of infringement: first is the illegal copy one makes onto one’s computer of the copyrighted work; and second is the unauthorised making available of the work for others to take from your computer. A double infringement just for a single song.

The US music industry now has a new approach: giving people the opportunity to pay a settlement fee instead of facing a court case. This would entail paying a $10 fine per infringement; therefore downloading 100 songs would mean a settlement fee of $1,000. To many this is better than having to endure the legal fees and possible damages linked to a full blown case, and they therefore go for the deal. The system works by roping in internet service providers and asking them to divulge the identity of individual internet subscribers based on IP addresses collected. The ISP is then instructed to send these settlement offers to its subscribers for the alleged copyright infringement.

The trend to rope in the ISPs in now spreading to Europe. The United Kingdom’s Office of Communications has announced future plans targeting illegal file sharing. As part of the new system under the UK Digital Economy Act, users participating in such practices will be sent warning letters and repeat violators would have their broadband disconnected. The move is towards the three strikes strategy. Three warnings and you’ve lost your internet connection. But first, users will receive a warning letter, will be asked whether their WI-FI connections have been hijacked and will be given tips on how to strengthen their internet security.

The target remains online piracy. The motion is strongly opposed by British MPs as well as the members of the Pirate Party, who hold that this is an attack on a person’s freedom of expression and on open access to the Internet.

The British government has countered that this system is a long way from becoming an actuality – with this proposal being ear-marked for 2013, however ISPs are well aware of their new duties under this new legislation.

All things considered, it all boils down to one question: Are you willing to pay for that downloaded song by losing your internet connection?

www.fenechlaw.com

(This article is not intended to offer professional advice and one should not act upon the matters referred to in it without seeking specific advice.)

Dr Rizzo specialises in entertainment and intellectual property law at Fenech & Fenech Advocates.

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