Mandelson Puts Cutting Off Filesharers Back On The Agenda

In a speech to be made later today, the Business Secretary Lord Mandelson will announce to the C&Binet Forum, a summit at which the creative industries have been debating how to deal with copyright issues in the digital world, that he intends to go ahead with plans to disconnect persistent illegal downloaders from the internet.

The announcement comes days after Culture Secretary Ben Bradshaw told the press that Lord Mandelson’s highly-controversial tougher stance on internet piracy would be “moderated” in the face of massive public opposition, including a poll from YouGov which suggested that 70% of voters would not support cutting off filesharers and high-profile musicians such as Radiohead and Shakira coming out against such action.

Mandelson’s speech will announce the measures as part of November’s Digital Economy Bill, which is expected to contain provisions that file-sharers will only be disconnected if they become serial offenders and even then after a number of other measures, such as warning letters and slowing down their broadband access. 

Even though Ben Bradshaw suggested a “moderation” of Lord Mandelson’s plans, the fact is that this announcement was pretty much inevitable.  The speech will be made to an audience containing some of the biggest names in the creative industries across Europe, who have been lobbying for tougher action to be taken to clamp down on filesharing for the best part of a year. France is taking similar action, implementing a “three strikes” regime and it’s probably only a matter of time before other measures are put in place across Europe. Intellectual Property Minister David Lammy said yesterday that a European consensus would be vital and that “If the world wants to continue to enjoy works that are protected by copyright, then the world must be a paying customer”.

The announcement will be music to the ears of the Entertainment Industry but it will continue to face opposition on a number of fronts, most vocally from Internet Service Providers such as Carphone Warehouse, Talk Talk and BT, who have warned that the system would be extremely expensive to implement and that tracking down the person responsible for filesharing on any one account would be virtually impossible as many serial downloaders are already using software which makes them virtually anonymous.

The real opponents, though, would appear to be the public. The recent YouGov survey proves this and suggests that any party which backs disconnection from the web would lose votes at the next election. What Lord Mandelson has had to do is choose from the lesser of two evils – face criticism from an increasingly powerful Entertainment Industry which sits at the heart of the government’s plans for the “Knowledge Economy” as set out in the Digital Britain report or continue with plans with the potential to weaken public support for an already-unpopular Government. He’s taken a risk on the latter, which could prove costly in an environment where social media continues to have a major and pervasive influence on public opinion. The debate will be fought most fiercely online and the recent Trafigura and Jan Moir scandals have shown how much of an effect that the comparative minority – in this case made up of many of the most vocal opponents of disconnection, many of whom make their grievances known through social networks like Twitter – can have on public opinion.

What’s also clear, however, is the fact that a minority of the public who download illegally is growing all the time, with an estimated 7 million in the UK.  

Copyright is the single most important asset that the Creative and Entertainment Industries have, as it sets out how their material can be used and distributed. The argument is that the ability to make money from creativity through this system encourages the world at large to make new material. However, copyright law is out of step with the digital age, as proven by the fact that format shifting – i.e. downloading music files from a CD onto an MP3 player – is still technically copyright infringement. Any copying and distribution of music, software, movies or other material which is protected by copyright will be, regardless of public opinion, until the law changes. When you buy a CD, the only rights you have are to listen to it in private. The fact that the copyright system provides creatives with the only real method of controlling and exploiting the material which they make available to the public means that this won’t change, even if headline-friendly opponents such as the Pirate Party would like it to.

The pressure for Mandelson to act stems from the fact that in the UK copyright is an unregistered right, meaning that there’s no central database of which material is protected, and as such the onus remains upon rights owners to take action themselves to stop infringement. Currently, this means either convincing the Police to use criminal sanctions or suing filesharers in a civil claim. The damages awarded in this kind of action would be the amount which the rights owner would make if the material was sold legally. This can be comparatively small when we’re talking about only a few music files, and when weighed up against the considerable costs of a copyright infringement claim, pursuing every infringer could conceivably cancel out any profits which record labels may make on a release. Something had to be done in the wake of technology which now means that music and other copyright-protected material can be copied and shared instantly with the whole world rather than the tape-traders of the 1980s, which saw the last major attempt to raise public awareness of the issue through the “Home Taping Is Killing Music Campaign”.

The major argument against the Record Labels, Publishers and Movie Studios, however, is that it didn’t kill content then and won’t do so now. The public still sees copyright infringement as a “victimless crime”, but Vivendi and EMI, both of whose Chief Executives spoke at yesterday’s conference, will be able to show sales figures which tell a very different story. This isn’t helped by the fact opinion remains sharply divided amongst the artists themselves. For every Lily Allen who complains that file-sharing will be the end of their career, there’s a Radiohead who remain as successful as ever. In fact, there’s real evidence to show that the real profits for the music industry over the next decade or so will be through live events, as Madonna confirmed when she signed a recording contract with her concert promoter and left a record label which she helped to found.

Until, however, the Entertainment Industry really embraces the internet and its opportunity by making as much material available for legal download as possible, the iPod generation is going to continue to look for and get their content in illegal ways. Their entire business model needs to change, and it may well be that the public turning against them for going to war against their own audience could be the catalyst for a new way of getting content out to an audience. Until then, we will begin to see cases coming before the Court where “soft targets” will be pursued as a deterrent, no matter who is in power after the General Election.

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