The Pirates’ Last Dance
Fellows and Associates’ independent correspondent Samuel Ali comments on the recent developments surrounding the UK’s legal framework for intellectual property.
August 5, 2011, London.
The Government has “broadly” accepted the recommendations
made in the Hargreaves Review into the UK’s intellectual property framework.
There were no fireworks – certainly no wholesale overhaul promised by the
inquiry’s one-time nickname, the “Google Review” – only Vince Cable lingering
outside the British Library. The headline news was that the government were
abandoning mooted plans to block copyright infringing websites, apparently, due
to the practical difficulties involved. Overall, the announcement, in its
“broadly” mild manner, can be seen to smile on law-abiding consumers, parodists
and researchers. But what of pirates, I hear you cry?
Those amongst the pirate fraternity who lawfully purchase IP
“lunches” to taste but then proceed to insouciantly allow said food to “format
shift” through their digestive system without permission should be advised to
keep their heads down. Such behaviour remains illegal for now but change is
afoot. Soon the prohibited but commonplace practice of copying for private use,
for example, legally purchased CD music into mp3 format, will be legalised. Law
will reflect reality.
Advice for the droll mimics, beaked or not, cannot be so
sure. The Government plans to except parodies from copyright restriction, so
that ‘fan fiction’ and song pastiches can be brought out of the grey haze into
legitimacy. However, the finer details are yet to be established. There will be
no wider “fair use” defence as available in the United States. How a parody
will be distinguished from an illegal copy and, in particular, whether a
distinction will be made with satire, remains unclear.
Those who exploit the vast unclaimed flotsam of IP should
beware. There are plans to create a Digital Copyright Exchange which oversees
material of doubtful ownership so that legitimate users are not cowed out of
seeking out treasures, whilst those that carelessly exploit the uncertainty are
pushed out. In fact, this Exchange may go further and become a marketplace for
right holders and buyers, introducing further regulation to the waters.
However, Rome was not built in a day and amorphous Exchanges were not either,
so one should not hold their breath.
Finally, to address the net pirates, the marooned souls who
facilitate the infringement of copyrighted films and music. The Government will
not be censoring these debauched dark havens of downloading. Ofcom has told
them that it is too difficult to implement. It has not been ruled out entirely
but at the moment, it seems, victims and their associates must turn to the
courts to block such websites. A precedent was recently set in the illegal
filesharing “Newzbin2″ case, where an ISP was required to block the infringing
site. Given the costs of fighting a court case, it is possible that ISPs will
be more proactive in hunting down and clamping piracy.
So, what now for the net pirate as they await the knock of a
court order or the ISP and then the music of the void, as they are cut off from
society? Perhaps, they can take up the soon to be available parody exception;
So much of entertainment, it has been said, is mass-produced and anodyne – and
therefore, the unsanctioned mass copies of such work are a mockery of the
original’s inherent superficiality: a parody. Counsel for the pirate, this is
my gift to you.
This article reflects the author’s opinions only and should
not be relied upon as advice. You can contact our news team via email at [email protected]