Battle against the pirates is far from over

The threat of cheap or free (at least to consumers) pirated music is threatening to devastate the US record industry

The threat of cheap or free (at least to consumers) pirated music is threatening to devastate the US record industry. The law is now changing in Europe to guarantee that the same threat does not develop here by enhancing the protections available to the owners of copyrights in music, software and films.

The EU has been working on its Harmonisation of Copyright Directive for years, and this was finally adopted by the Council of Ministers last month. The implementation of the Directive's provisions may be expensive for Europe's consumers.

The Directive makes provision for a levy to be placed on blank tapes and Video cassettes or perhaps Mp3 players.

European users may even find themselves compensating TV companies or film distributors if they use their VCR's to record material while they are out or asleep.

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It also contains extensive protections for "anti-copying" devices, such as those being developed under the Secure Digital Music Initiative (SDMI). This group offered $10,000 to anyone who could bypass one of their technologies, but when a group of American academics claimed to have succeeded, SDMI attempted to limit publications of their results.

Incidents such as this raise serious doubts about the effectiveness of such devices, as once they are on the market hackers will try to analyse or "reverse engineer" them. So the Directive gives copyright owners complete control over how their devices are manufactured and distributed, which may increase the cost to consumers by limiting competition.

Consumers may wonder why they have to pay these increased costs, if the protections offered are ineffective. The Directive may also make copyright law inflexible, it contains an "exhaustive" list of possible exceptions to the certain aspects of copyright. This means that the courts will not be able to interpret or adapt the provisions of the Directive to suit changing uses or new technologies and any adaptation of these provisions will have to go through the EU's tortuous legislative process.

Ireland is also changing its laws, an ironic feature of Ireland's development into the largest exporter of software in the world is that it occurred at a time when Irish law offered quite dubious protection to American software companies such as Microsoft.

The Copyright and Related Rights Act 2000 changed all that. Now the Criminal Justice (Theft and Fraud Offences) Bill 1999, may give Ireland one of the world's most draconian copyright laws as it may criminalise any infringement of copyright or any other intellectual property right such as distributing pirated copies of music or a film over the Internet.

Irish users of Napster-type services or its successors, might find that their actions would amount to the offence of theft under the Bill. This offence will be committed by any person who ". . . dishonestly appropriates property without the consent of its owner. . ." But by criminalising all infringements of copyright, the Bill may limit innovation in Ireland. It is one thing to copy somebody else's idea, work or patent, and risk having court orders and substantial awards of damages made against you, it is another to risk 10 years in jail.

The need to make such extensive changes to the law remains open to question. Although both Napster and the big players within the record industry have reached an agreement, it is unlikely that Napster will ever regain its popularity as users are starting to delete its software from their hard-drives.

Instead new programs programmes are moving to the fore, such as Bearshare and other systems such as mIRC, Audio Galaxy, WinMX and LimeWire are being used, although none of them have the popularity of Napster just yet. The music industry is providing new online products such as MusicNet and Duet, but although these benefit from the low costs of online distribution it is expected that their consumers will pay prices similar to those charged for a CD bought in a shop.

Even if pirated MP3 files are now distributed by difficult use peer-to-peer systems, they are available at no cost to the downloading user and this creates a substantial incentive to encourage online piracy.

Denis Kelleher is a practising Barrister and co-author of Information Technology Law in Ireland (Butterworths: Dublin).

www.ictlaw.com