The Music Producers Guild’s Mark Rose (pictured) has called for unilateral action to resolve difficulties surrounding the implementation of the UK Digital Economy Act (DEA), which is currently the subject of a partial judicial review in the High Court, writes David Davies.
Passed into law in April 2010 amid complaints that it had received insufficient parliamentary scrutiny, the illegal download/filesharing-tackling DEA was one of the final pieces of legislation to be overseen during the ‘wash-up’ by the outgoing Labour Government.
Among other measures, the DEA contained instruction for a mass notification system allowing rights-holders to collect data on illegal downloaders, which would then be matched against ISP customer databases. Service providers would then contact the holders of IP addresses found to be downloading copyright-infringing material and provide them with information about legitimate sources of digital content as a first step.
There were also provisions for the possible introduction of technical measures to limit a subscriber’s internet service – including bandwidth-throttling and even suspension of the connection – but these could not be introduced until the mass notification system had been in force for at least 12 months. They would also have to undergo public consultation and the ‘super-affirmative’ parliamentary procedure for secondary legislation.
One year after approval, the DEA is far from being fully implemented. From 23 March, a judicial review won by BT and TalkTalk has been reconsidering some sections of the act after the ISPs argued there were compliance issues with European legislation and that some measures were ‘disproportionate’. Meanwhile, the mass notification letters will not now commence until 2012.
Speaking exclusively to PSN-e as the judicial review got underway, Mark Rose – producer, manager of Deep Recording Studios and vice-chairman of the MPG (UK) – considered a wealth of issues surrounding the implementation of the DEA and the ongoing fight against illegitimate downloading and sharing of music and copyrighted material.
In your view, what have been the main stumbling blocks to the introduction of the anti-downloading/filesharing measures contained in the DEA?
The main issue hasn’t been so much the [relevant] clauses, but more the costs of [collecting and] reporting data. My personal view is that, within the law, the offenders should pay all associated costs; to my mind that would mean the mechanism of distribution and delivery (ISPs) and the account holder. However, there is a general feeling that costings on this matter should be shared 75/25 or 50/50 by rights’ holders and/or ISPs, and account holders.
Account holders are directly responsible for their own security and access via their ISP contracts, so it seems to be fair to therefore distribute any abuse warnings to the account holder(s). It’s a little like any TV licence policy and legal obligation in that respect.
[There have been some] rather liberal retrospective views suggesting that these lenient [measures] should be scrapped and that the DEA should not function or protest against downloading hosted or distributed assets on behalf of any individual rights’ holders. The question then, would be, how can something already lenient be replaced by something even more lenient when attempting to protect IP content created by artists and producers? Are we not in charge of our own careers anymore?
There have been several recent meetings to try to address this with the Government, [industry umbrella group] UK Music and all other stakeholders, hosted by Ed Vaizey, minister for culture, communications and creative industries. The implementation of such measures is long overdue and the MPG welcomes the ongoing discussions by the pro-active minister and UK Music to bring this about.
In what ways do ISPs need to readdress their own contribution to this ongoing debate around digital content?
People have to consider that ISPs are not reporting downturns in revenue (not least with some holding off-shore accounts). Reporting and issuing digital data is not a big problem or cost consideration for the ISP community, and is part of their array of digital logistics and data used in analysis of users and general online service activity.
At this stage it would seem absurd to suggest that it would cost millions to collate the data on account holders usage abuse as the data exists and is already archived and held by the ISPs. I would simply ask, what they are afraid of and why does digital data cost so much to duplicate?
It would appear that the customer administration model for ISPs is now outdated and will need to [be revised] in order to reflect the changing face of the digital market as the online presence grows legally. Consequently, ISPs might have to charge their account holders [some additional costs] for issuing paperwork – or simply factor in higher rates for accounts.
There is also surely room for a new ISP model to sell user accounts on the basis that they provide no access to illegal hosted content via filtering, just as virus firewalls keep accounts safe. The new ISP could then offer a guarantee to account holders to never access illegal content. It would not stop the piracy problem entirely but institutions such as Government offices, universities and libraries would buy into assured legal access to reduce their own liabilities and stabilise any usage.
Is there a moral obligation on the ISPs to comply with this aspect of the DEA?
We live in responsible and accountable times; more so than ever before. The ISP model needs to move with those times rather than trying to justify the blatant activity of distributing and hosting illegal content.
There is a public open parallel illegal market freely available in every household and accessed via search engines and hosted websites, all of which cost money to distribute, advertise or use. These services are therefore commercial models distributing pirated commercial products illegally and with virtually no present accountability. That mere operation makes a mockery of all rights’ holders.
On behalf of all the talented people making records today and losing any IP value, expected returns or chart positions from their creation of unique recorded assets, I would personally like to see an end to ALL unauthorised file sharing. I would, to be very clear, welcome authorised file sharing from any artist or rights’ holders as a promotion tool, but the ridiculous idea that file-sharing by default encourages a fan base is swiftly diluted by the stark reality and activity on the ground.
So, contrary to some perceptions, you believe that early access to a band’s repertoire can actually inhibit its commercial development?
Put it this way: I have never seen any London gig of any new UK band attract a mass of overseas fans or even national ones getting on the train to see a band’s only London showcase gig. It simply does not occur because of [easy] access to their pirated illegal material.
To give you a recent example involving an unnamed artist... The band developed PR and considerable interest in their work through the release of a very well-received EP and three singles, all of which reached out across several countries and secured extensive radio play for the first 18 months of activity.
This was then followed by a debut album release which sold several thousand copies immediately, but was then distributed/uploaded online and dropped over 800,000+ illegal downloads. Band A could not tour and their deal ended in a £100k invested loss. As a result, the band split because it was simply not possible economically to continue.
Had there been protection in place the band would still be touring and preparing for its second album, [while remaining in] contact with all the fans who bought the first album. The band would have given fans much more free music but never had the opportunity to do so voluntarily, despite already giving away several other key and exclusive releases online via its own social networking.
This is just one of hundreds of possible examples occurring right now, today. It is vital and important we all support today’s new musicians for the future. There is very little new wealth out there or incentives, with many new musicians being reduced to discovering earnings more akin with the ‘1960s.
Ultimately, most bands still create audiences from direct and known interaction with individuals, word of mouth, radio play, and their own social networks and websites. It does not help every new artist to have their first release pirated online.
A mass of illegal and badly copied online audio downloads pre or on release does not create chart positions or wider PR ratings – and it should not be the default position. Economically, that is simply not acceptable or viable longer-term. The costly experiment is now over – its failure was no structure or limits ever being in place.
For more information on MPG activities, see www.mpg.org.uk.