Film theft in the UK - Future of Copyright

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34 measures, special requirements related to border measures and criminal procedures, which specify, in a certain amount of detail, the procedures and remedies that must be available so that right holders can effectively enforce their rights. The TRIPs Agreement entered into force on 1 January 1996 for developed countries (including the EU), whereas developing and least-developed countries were granted different transition periods (from 2000 to 2006) to implement its provisions. Copyright protection in the US and the EU i) The status in the US The first regulatory step in the US in relation to new media took place with the adoption of the 1992 Audio Home Recording Act, which introduced levies on digital tapes and digital recordings with measures to prohibit circumvention of copy protection. The Act purports in some degree to compensate for damage suffered by the music industry as a result of home recording. At the time of the Act, levies in relation to private audio copying already existed in Germany and France, becoming a feature of national European legislations in the 1980s. The real problem, however, has been how to legislate for unauthorised Internet distribution. Whilst copyright owners have the right to prevent unauthorised distribution, on-line downloaders (and uploaders) are difficult to investigate since they are located around the world and constantly switch web servers. ISPs take the view that they have no capability to identify infringing activity and no obligation to police their networks – indeed from an ISP business perspective, a ‘monitored’ Internet connection poses an unattractive offer to the consumer and could affect uptake of broadband services. An uncomfortable middle ground was reached with the US Digital Millennium Copyright Act (DMCA) of October 1998, which provides a remedy to copyright owners for on-line copyright infringement whilst limiting the liability of ISPs. Under the DMCA, ISPs must establish a policy for the termination of the service to users who are repeat infringers. Second, the ISP must accommodate and not interfere with the copyright owners’ use of “technical measures” to prevent unauthorised copying. The ISP has no obligation to monitor copyright infringements but must respond to copyright owners’ requests for information or action through a Notice and Take Down Procedure. To encourage co-operation in the fight against piracy, the ISP is exempt from liability arising from the removal of infringing material after it has received notice from the copyright owner. The same US legislation aims at implementing the WIPO Treaties by providing protection against circumvention of technical protection systems as well as by safeguarding the integrity of copyright management information. ii) The status in the European Union The situation in the EU is somewhat similar, with Member States and institutions working on a programme of harmonisation of intellectual property. The European Enforcement Directive has already been discussed (see above, ‘Piracy in the UK in a European context’). One early initiative was to deal with Pay-TV piracy. The 1998 Conditional Access Directive, incorporated into national law by 2000, established a Europe-wide rule against piracy caused by counterfeit TV smart-cards and illegal decoding devices, to protect European operators and broadcasters (see previous chapter: pay-TV piracy). However, the directive only protects the TV
service not the underlying copyright protected work being broadcast. It explicitly provides for member states to ensure that providers of services have access to appropriate remedies. It protects the signal against theft. But the use of illicit devices for private purposes is not prohibited. The EU Directive on e-commerce 44 addresses the liability issue in a wider context than the copyright-only application of the US Digital Millennium Copyright Act (DMCA). The result very much parallels that of the DMCA providing circumstances under which ISPs would be liable. The most significant difference from the US approach is that the EU directive establishes both civil and criminal liabilities whereas the US legislation addresses only civil liability. The E- Commerce Directive also lacks certain tools contained in the DMCA. For instance, it does not have threshold conditions, there is no established procedure for notifying infringements to ISPs, and provides no means to get information on subscribers (even as limited by the current status of the Verizon case). The issue of ISP liability is also dealt with in the Copyright Directive, which legislates for creation of temporary copies. To ensure free provision of electronic services in the internal market, the E-commerce Directive lays down the principle that the law applicable is the one of the member states in which the service provider is established. This is very important in relation to mail-order businesses using the Internet, as some countries’ rules are more business friendly than others. Of most relevance, of course, has been the Copyright Directive, discussed above in the context of UK law. Notably, the directive grants enhanced protection to technological security measures and creates criminal offences to protect copyrighted works against unauthorised electronic creation and distribution. Enforcement The issue of enforcement is fundamental in the fight against piracy, as any law is only as effective as the efforts taken to enforce it. In the UK, FACT has been very active in this area, working in conjunction with HM Customs and Excise, UK police authorities and Trading Standards offices across the country. According to FACT, the total number of seizures of pirated DVD and VHS product in 2003 was about 2 million units. 45 Of the total, about 50% of the seizures were made as the illegal items entered the country – as a result of joint actions with Customs and Excise authorities. The remainder was divided approximately equally between seizures made from sites of stored material (in warehouses, garages, houses, etc) and seizures made at the point of sale. There have been a number of high profile successes. In December 2003, FACT and the UK police raided premises in north London, recovering 250,000 counterfeit discs of major film titles, imported from the Far East, destined for UK car boot sales and street markets. The street value of the goods was set at £1.25 million. Titles included some that were still six months away from release. But controls and seizures by the police and customs authorities are insufficient to bring to an end the massive import of counterfeit material. FACT’s activities also stretch to the Internet, but are limited in scope. The form of online crime that FACT encounters regularly includes film piracy, encryption circumvention, pay-TV piracy and malicious passing-off, taking place from a variety of sources including web-sites, auction sites, email (including spam), FTP, bulletin boards and file-sharing programmes. The organisation takes a two-tier approach to tackling online piracy, which it recognises to be an ever-increasing percentage of the overall caseload. In the first instance, if illegal trading is found on, for example, Internet auction sites, Film theft in the UK | 35
Page 1 and 2: Film theft in the UK Anti-Piracy Ta
Page 3: Contents 1 Chair’s foreword . . .
Page 6 and 7: 4 1 Chair’s foreword The pirate i
Page 8 and 9: 6 2 Executive summary The ability t
Page 10 and 11: 8 enforcement strategy remains suff
Page 12 and 13: 10 4 Film theft in the UK: the curr
Page 14 and 15: 12 around 80% of total customers),
Page 16 and 17: 14 DVD plants are capable of manufa
Page 18 and 19: 16 12.0 10.0 8.0 6.0 4.0 2.0 0.0 po
Page 20 and 21: 18 calculated. Some sources quote l
Page 22 and 23: 20 argue that, while most music con
Page 24 and 25: 22 more than two weeks before its o
Page 26 and 27: 24 subsequently reduced this activi
Page 28 and 29: 26 Piracy in the UK in a European c
Page 30 and 31: 28 5 Combating film theft There are
Page 32 and 33: 30 Patents Act 1988 (CDPA) (as amen
Page 34 and 35: 32 has made profits from the infrin
Page 38 and 39: 36 a notice is served for infringin
Page 40 and 41: 38 screened in their cinemas. Howev
Page 42 and 43: 40 the local authority order to cea
Page 44 and 45: 42 successfully stop suspects tryin
Page 46 and 47: 44 WARNING FROM THE FEDERATION AGAI
Page 48 and 49: 46 Developing new business models N
Page 50 and 51: 48 6 Consumer issues What some educ
Page 52 and 53: 50 Enforcement Group (IEG) 61 , has
Page 54 and 55: 52 judge would then be able to awar
Page 56 and 57: 54 The film industry In the short t
Page 58 and 59: 56 focusing on the links between pi
Page 60 and 61: 58 Action plan Implementation date
Page 62 and 63: 60 Action plan (continued) Implemen
Page 64 and 65: 62 Appendices Appendix i: Lessons f
Page 66 and 67: 64 enable them to jump into any bus
Page 68 and 69: 66 lodged by Test-Achats. Aside fro
Page 70 and 71: 68 against hundreds of large-scale
Page 72 and 73: 70 files for an annual fee. While a
Page 74 and 75: 72 charges in a similar DeCSS case
Page 76 and 77: 74 Appendix iii: Copyright and Rela
Page 78 and 79: 76 technological measures, dealing
Page 80 and 81: 78 Appendix v: Signatories of the M
Page 82 and 83: 80 recording device that stores pro
Page 84 and 85: 82 However, it has endeavoured to m
Page 86 and 87:
84 of Warner Bros. Pictures Inc. Th
Page 88 and 89:
86 13 See http://www.iipa.com/pdf/2
Page 90 and 91:
88 Member States to ensure the conf
Page 94:
10 Little Portland Street London W1
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Film theft in the UK - Future of Copyright

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