Endless availability of content has translated into mass copyright piracy, says Antonio Ghio.
During the past two decades,the internet has totally changed our home entertainment consumption.
The advent of the VHS format followed by the DVD and now Blu-ray was just the tip of the iceberg. Fast speed internet and the widespread availability of content, legal or otherwise, available over the worldwide web has drastically changed the landscape and challenged our perceptions of entertainment, while laws regulating such activities have remained somehow static and reflecting an era where content was not so widely available.
I can vividly remember my childhood days in the mid-1990s trying to play one of the first online multiplayer games Doom through a phone line.
Back then, the modem experience was far more Spartan and amusing than today’s always-on connections. These were the days prior to the explosion of the web as we know it; ancient times before Napster, Grokster and the ubiquitous MP3 file format.
Fast forward to 2012 and to bit torrent sites and peer-to-peer networks, a golden repository of all the content you would like to see or hear again, from Hogan’s Heroes to the latest 3D movies, from the collected works of JS Bach to the complete discography of Emerson, Lake and Palmer, from a copy of an emulated version of Pac Man to the latest first person shooter.
Endless availability of content has translated into mass copyright piracy, changing long-established business models enshrined in our copyright laws.
Many were those, including Hollywood giants, who were slow to react to this paradigm shift. As more consumers opted to go online, companies like Blockbuster filed for bankruptcy, while EMI has battled many storms to remain afloat.
Some jurisdictions, such as the US with its Digital Millennium Copyright Act, the UK with its Digital Economy Act and France with its Hadopi Law, introduced tougher copyright laws to try to limit the haemorrhage.
The founders of Pirate Bay have been convicted, Megaupload has been shut down. At the same time, many authors started questioning whether presently available copyright concepts are limiting creativity and giving too much power to IP holders. In the meantime, millions of internet users are just turning to free entertainment in the form of pirated material which is freely available online.
The whole ACTA (Anti-Counterfeiting Trade Agreement) debate has just crystallised the reality we face today. Many internet users have grown used to the ‘everything is free’ culture which has toppled down big industry names.
Perhaps few of us realise, however, that ACTA is not strictly changing any legal landscape relating to online copyright available locally, even though if you read everything that is being written on social networks you tend to arrive to a different conclusion. ACTA is not changing how copyright infringement is defined. What is illegal today will remain illegal with ACTA.
Perhaps the whole ACTA debate has brought to the fore how widespread copyright infringement is. This, nevertheless, does not essentially mean that whoever illegally downloads an MP3 or an episode of Dexter is a criminal.
Unfortunately, many fail to distinguish between the civil infringements of copyright, which provide that the unauthorised copying of copyrighted material would breach the provisions contained in the Copyright Act and the criminal sanctions found under our Criminal Code, which provide that any breach of copyright done by way of trade or for gain would carry a criminal sanction.
While it is statistically improbable that Sony or Paramount will open a case against you before a civil court in Malta on the basis of a few movies downloaded illegally for your own private use, this does not mean that those same downloads are not illegal or run against our copyright laws.
It appears, however, that we just don’t bother anymore about laws and download stuff as an ingrained part of our online experience. Younger generations are growing up in a world where content is so easily available that the mere fact that a download might be illegal will not deter them. Piracy is the norm.
Malta has not been immune to this wave of piracy as the most efficient source for our entertainment. It is impressive to note that a huge percentage of international download bandwidth is being consumed for illegal downloading. But while Malta may be a tiny drop in the piracy ocean, the fact remains that such activities are still illegal.
An often forgotten part of ACTA is, in fact, the obligation on states to set up educational and informational campaigns about downloading. In fact, Article 31 of ACTA stresses the importance that parties to the agreement should promote the adoption of measures to enhance public awareness of the importance of respecting intellectual property rights and the detrimental effects of intellectual property rights infringements.
While it remains to be seen whether ACTA will eventually see the light of day, one seriously needs to sit down and consider whether ancient laws of copyright are serving their purpose and whether the information and creative society can co-exist with established principles of intellectual property protection.
Irrespective of any law we might introduce to try to contain or curb this reality, the fact remains that the endless demand for free content will continue.
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Dr Ghio is a partner at Fenech and Fenech Advocates, specialising in ICT law (www.fenechlaw.com). He also lectures in ICT Law and Cybercrime at the University of Malta.