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A sign of the times for intellectual property

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Summary: I discuss the piracy issues surrounding the rapid development of the internet and the ease at which media, such as music, tv programmes and movies, can be downloaded or streamed. This blog was first published in The Brief.

Prince’s untimely death last month reminded us of his unwavering belief in intellectual property rights. Here was an artist who was prepared to go to the lengths of changing his name to an unpronounceable hieroglyphic in his stance against the exploitation of his rights by his record company.

Prince Rogers Nelson has not been the only artist to take a stand against the unauthorised use of music but as we saw during the Napster era, acts such as Metallica and Dr Dre were heavily criticised for seeking to prevent fans from obtaining their music without paying for it.

The piracy issue came to a head 15 years ago on the back of the rapid development of the internet and the sheer ease with which consumers were suddenly able to obtain music and films.

The public came to expect the “right” to online access of their chosen form of entertainment, which in the early days was available from websites providing pirated copies for download. Today, advances in technology mean that a significant amount of music and visual content is now consumed by streaming rather than downloading.

Often consumers will not know whether what they are listening to or watching on their device is being streamed or downloaded. You would therefore think that legally this makes no difference and that the ability of rights owners to take action against the circulation of pirated content is the same in each case. You would be wrong.

The European court has already ruled that copies of streamed content made in an electronic device cannot infringe copyright - as the copies are only temporary - whereas downloaded content can.

The opinion last month from the advocate-general of the European Court of Justice issued in the Playboy case said that posting a hyperlink to a website that published photos without Playboy’s permission did not itself constitute copyright infringement. The fact that the poster of the link knew that the content was unauthorised was “not important”.

So for pirated content accessed by streaming, if this opinion is followed by the court, right holders can take no action against the end consumer or against any company that links to the infringing content, even if those companies make money from that pirated material. The only remedy for rights holders would be to try to identify and pursue just the original copier, who is frequently located in a remote jurisdiction, or seek to block access to the websites, knowing that fresh sites could appear within days.

This doesn’t seem to be the right message to be sending in a world where exploitation of pirated content has been linked to terrorist organisations.

This article was first covered by The Brief, which you can sign up to receive regular updates from.

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