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First, section 17 of the Act enables the Secretary of State to make regulations allowing the courts togrant a website-blocking injunction for a website which has been, is being, or is likely to be used foror in connection with, infringing copyright. This can only be granted if the infringement is having aserious adverse effect on business or consumers, and if blocking the website is a proportionatemeans of dealing with the problem (legislation.gov.uk, 2010). However, many ISPs are unhappy aboutsection 17. The Internet Service Providers Association (ISPA) argued that there had not been enoughconsultation on this provision, and that it would "prevent new innovative lawful models ofdistributing content online" (ISPA, 2010). Additionally, they also concerned that the Act and code arebureaucratic, costly and burdensome to fulfil. Apparently, those objections from related stakeholdershave impeded the implementation of the DEA and diminished remarkably its effects in practice.
Second, a significant technical difficulty is that the identification of internet users is shaky:rightsholders rely on the numbered identifier known as an "IP address" (for Internet Protocol) that isassigned to each device that accesses the internet. Often that device is a single computer, but inmany cases the device is a router behind which dozens of machines may operate. Furthermore,infringers can frequently change their ISP to hide their true identities on the internet, which leads tomisidentifications and errors.
Finally, the Act based on a false assumption that the notification system will work because “theprocedure will finally get ISPs communicating with their customers on this issue" – said Simon Baggs,a partner at Wiggin LLP (Practical Law, 2010). Nevertheless, according to Kantar research, only 10%of correspondents, who consume online content illegally, agree they would stop doing this activity if“my ISP sent me a letter saying they would suspend my internet access” (Kantar Media, 2015, p.41).This figure demonstrated that warning letters – a fundamental tool of “three strikes” approach – hasfailed to discourage the intentions of consumers to download illegally.
In light of the limited success of legal means as discussed above, it’s suggested that the most effectivemethod of tackling piracy is to develop lawful alternatives for consumers to access content online.The music industry, as the most vulnerable object of illegal downloads, has taken many stepsnecessary to protect themselves from this unlawful activity; and according to Ben Allgrove, a partnerat Baker & McKenzie in London, new business model and education are key
We now have a whole generation who take copying as the norm, and changing that behaviour is very difficult, so new business models and education are key (Practical Law, 2010)
First, the music industry is constantly looking for new revenue models. For example: Apple's iTunesand Amazon are among many other music-downloading services where user can purchase digitalsongs. Other sites allow consumers to stream music and listen to it (without buying), such as Spotify,Pandora and Rhapsody. These sites are generally supported by advertising revenue or subscriptionmodels. Spotify is a successful case study. By genuinely applying subscription-based model, whereusers pay a monthly fee to listen to music without adverts, it has attracted millions of users andultimately allow it to compete with major players such as iTunes.
Second, the UK music industry has also attempted to educate people toward the importance ofonline copyright. For example: BPI, UK Music and other bodies have tried to supply teaching materialsto schools, to be used in citizenship and media studies classes. Besides, they have also launched somecampaign such as Music Matter to raise awareness about online piracy. (Why Music Matters, 2010).However, since education – the main emphasis of “three strikes” approach – seems failed to deliverits promises, the music industry must either strive more or find another way to deal with onlinepiracy.
Apart from those attempts, it’s suggested that serious legal actions must be made when onlinecopyright infringement happens on a large scale. For example, in 2012, Anton Vickerman – owner ofsurfthechannel.com – was prosecuted and found guilty of conspiracy to defraud and has beensentenced to four years in prison. It was revealed that surfthechannel.com allowed access to morethan 5,600 films and TV shows and experts have estimated the damages to be between £52m and£198m (Media Lawyer, 2012). In this case, however, the defendant was convicted under conspiracyto defraud (common law) legislation and not CDPA 1988. It means even though the prosecution wassuccessful, it did not build up the body of case law around s107(2A) (The Intellectual Property Office,2015) and demonstrated once again that current legal frameworks could not be utilized to tackleonline copyright infringement.
In conclusion, illegal downloads of copyright materials from the internet have created significantchallenges for both the creative industries and the government in maximizing the benefits of digitalassets and imposing effective legal restrictions. Therefore, along with actively seeking commonconsents among all relevant parties, it’s suggested that the creative industries should constantlystrive to devise new business models to adapt and gradually diminish harmful consequences of onlinecopyright infringement. Last but not least, given the inefficiencies of current legal frameworks, thegovernment and legislators need to looking for more supports and advices beyond the parliament toaddress the issue more appropriately.
Bibliography
1. ISPA, 2010. Third Reading of the Digital Economy Bill ISPA statement.
2. Kantar Media, 2015. Online Copyright Infringement Tracker Wave 5 (Covering period Mar 15 – May 15) Overview and key findings. Cardiff: The Intellectual Property Office Intellectual Property Office.
3. legislation.gov.uk, 1988. Copyright, Designs and Patents Act 1988.
4. legislation.gov.uk, 2010. Digital Economy Act 2010.
5. Media Lawyer, 2012. Internet Pirate Jailed.
6. Mene, A., 2010. Piracy and illegal file-sharing: UK and US legal and commercial responses.
7. MP, M.W., 2014. ‘Follow The Money’: Financial Options To Assist In The Battle Against Online IP Piracy.
8. MPA, 2006. Worldwide study of losses to the film industry and international economies due to piracy. [Online]
9. Open Rights Group, n.d.
10. Practical Law, 2010. Piracy and illegal file-sharing: UK and US legal and commercial responses.
11. The Intellectual Property Office, 2006. Gowers Review of Intellectual Property.
12. The Intellectual Property Office, 2015. Criminal Sanctions for Online Copyright Infringement:Government Consultation Response.
13. The Intellectual Property Office, 2015. Penalty Fair? Study of criminal sanctions for copyright infringement available under the CDPA 1988.
14. Why Music Matters, 2010. Why Music Matters.
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