Journal of International Commerical Law and Technology, Jan 1, 2013
Western legislatures tend towards the use of regulatory policies that favour strong intellectual ... more Western legislatures tend towards the use of regulatory policies that favour strong intellectual property rights over public access in the battle to regulate file sharing. It has become apparent that the legislature is increasingly relying on code-based regulation in order to detect infringement, to identify those infringing, and to enforce the law through technical measures. This paper will assess the efficacy of regulation by code in the context of Lessig’s assertion that “code is law”, as applied to the file sharing community. The conclusion will reveal a significant asymmetry between the intended application of the regulatory influence of code and its de facto applicability in the online environment.
"The Digital Economy Act 2010 was hurried into existence in the dying days of the last Labour gov... more "The Digital Economy Act 2010 was hurried into existence in the dying days of the last Labour government, and contains powers designed to resist unauthorised file sharing that are due to be
implemented by an Initial Obligations Code authored by Ofcom. Even before the Code has been published, there are several pre-existing key areas of the Act that contain significant evidential problems and potential incompatibilities with existing law. This paper critically reviews the legislation and identifies a number of significant flaws in consideration of its ongoing judicial review and the regulatory review by Ofcom. The status of the DEA in light of the recent decision in MediaCAT v. Adams is also discussed in the context of the threat it contains to the fundamental evidential foundation upon which the operation of the Act is based."
The recently published Media Piracy in Emerging Economies report includes a detailed consideratio... more The recently published Media Piracy in Emerging Economies report includes a detailed consideration of the conflict between the regulatory approach of strengthening IP regulations and enforcement, and the establishing of new business models in order to take advantage of efficient digital distribution. This paper defines the currently existing digital distribution model that describes how consumers presently access digital content, both legitimately and illegitimately. This foundation is then used to identify a number of alternative new business models and existing models that have been adapted from the analogue age such as indirectly supported distribution and advertising supported distribution, and the operation of the network effect, that together rely on a model of efficient distribution. It is concluded that due to the ineffectiveness of stronger enforcement at impeding piracy, the adoption of new models to adapt to efficient distribution remains the most efficacious approach.
Journal of International Commercial Law and …, Jan 1, 2011
Regulators have a choice of approaches available to them in regulating digital copyright issues t... more Regulators have a choice of approaches available to them in regulating digital copyright issues that lie on a scale between restrictiveness and openness. In a world in which the regulator seems to exclusively rely on entrenching a restrictive approach, this paper questions whether the long-forgotten open approach is worth reconsidering in the digital age. The ideal of cyber socialism is examined in the context of the roots and structure of cyberspace and its state of nature, and digital distribution models operating outside of the existing law are considered. The Creative Commons licenses are evaluated for their suitability in opening the current one-note regulatory regime.
International Review of Law, Computers & Technology, Jan 1, 2007
"The ongoing problem of digital file sharing technology evolving at a speed far greater than the ... more "The ongoing problem of digital file sharing technology evolving at a speed far greater than the law can keep up with is demonstrable with the cases against Napster and Grokster seeing measures upheld against the producers of centralised and decentralised peer-to-peer networks towards the ends of their natural useful lives. As file sharers and, with them, copyright infringers, move onto more efficient networks such as BitTorrent, the story is repeated but with the new problem of the client software being open source.
This has led to avenues alternative to litigating against makers of peer-to-peer network clients being explored. Although it is a long established principle that criminal sanctions can be levied against copyright infringers who operate in the course of a business, ostensibly making money from the labours of others without authorisation, the industries in their fervour to dissuade the sharing of infringing files have inadvertently raised the question of what constitutes an alternative type of infringer, namely one who harms the copyright holder without benefiting from financial gain themselves.
This type of file sharer is described in the Copyright, Designs and Patents Act 1988 as a person who distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright. Unfortunately, the parameters of this test of prejudicial effect is not defined in the Act, has not been addressed by the judiciary and has left commentators submitting conflicting and uncertain views as to where the boundary of this test lies.
This test is examined in the Hong Kong case of HKSAR v. Chan Nai-Ming, which is notable for being the first case in the world where a user of BitTorrent has been criminally prosecuted and given a custodial sentence. This paper examines the case in the context of its alternative approach to curbing a peer-to-peer network that is quite distinct from the likes of Kazaa, and considers the stance taken in light of the test of prejudicial affect which is echoed in the Hong Kong Copyright Ordinance 1997.
With reference to alternative perspectives on the test, including proposals for reform from the Hong Kong government itself, it is argued that the highly strict and surprisingly low level at which the test for prejudicial affect is set is counter-intuitive to the goals of curbing the problems piracy poses. The influence this ruling could have upon a UK interpretation of the test after the final appeal has been heard is considered, and it is concluded that the ongoing battle between file sharers and their opponents has led to the loss of sight of the true goal of regulation: the protection of copyright holders from suffering de facto harm that is at least above a relatively negligible standard."
The ongoing battle between file sharers and the entertainment industries is one which has been la... more The ongoing battle between file sharers and the entertainment industries is one which has been largely approached from the point of view of the latter parties with the reasoning that the law should be invoked to clamp down on the distribution of unauthorised copies of works through peer to peer networks. This paper argues that the industries, with the assistance of the legislature in certain circumstances, should be focussing their attentions not on limiting the natural evolution being brought about in the digital age, but by recognising that many of the parties labelled as scurrilous pirates are actually a rich market which can be tapped into through alternative means.
An analysis of various theories relating to the routes, impacts and effects of file sharing is applied to a digital distribution model. The model is then expanded to encompass the Efficient Distribution Theory which argues that, through the application of measures which can be cheaply and easily implemented by the entertainment industries, a number of factors can mitigate any negative effects file sharing may cause to the extent that widely distributing digital copies can be directly beneficial to the industries.
The analysis and theory is supported by the results of a research study carried out by the author in February 2007, which are presented in this paper. The findings of the research indicate that those who engage in cyber piracy not only financially spend more on authorised products proliferated by the entertainment industries compared to those who do not engage in piracy, but are also willing to move away from committing tortious acts of copyright infringement if the industries can provide a viable alternative means of digital delivery, inter alia.
As the internet has become ever more prolific and intrinsic to modern society, so it has attracte... more As the internet has become ever more prolific and intrinsic to modern society, so it has attracted the attention of the regulators of the world. As the domestic and international legislatures apply their increasingly restrictive rules to the information superhighway, this paper asks if they have considered the ramifications of limiting the natural evolution of the internet.
By taking a normative view of the internet and the behaviour of its users, the concept of cyber socialism as applied to the file sharing of intellectual property is evaluated in terms of viability and value. As the internet has evolved from a state of cyber-nature to the point where large proportions of cyberspace are being governed effectively by no more than self-regulation, it is recognised that the internet must always be treated as an addition to the real world running in parallel to its practices as opposed to an entirely separate entity.
It is concluded that regulators should be taking heed of the capabilities of the internet to run without unnecessary impediments while simultaneously allowing real world practices to flourish, and should therefore be following the example of the Creative Commons to robustly protect the interests of intellectual property rights holders without impairing the strengths of the internet rather than falling prey to undue influence exerted by the creative industries and their outmoded business models.
Journal of International Commercial Law and …, Jan 1, 2007
"Although commentaries regarding intellectual property regulation frequently point out the comple... more "Although commentaries regarding intellectual property regulation frequently point out the complexities inherent in its subsistence and reform, the subject is still often discussed in overly simplistic terms of black and white. This paper examines the problems such a view poses, and questions whether a blanket of misunderstanding, or even misdirection, has been used to influence the progression of the regulation in the digital age.
The primary hypothesis is that public perception of the law relating to cyber piracy is out of step with the contemporary de facto legal position.
The definition of cyber piracy is summarised, and the issues relating to confusion surrounding the boundaries or simply considering the myriad categories of piracy as a single topic are discussed. The current law as per the Copyright, Designs and Patents Act 1988 as amended is also outlined for the purpose of evaluating the hypothesis, and the border of cyber piracy in relation to the entertainment industries (concerning film, television and software) is set for the rationale of the analysis.
Further exploration takes place through two case studies which concentrate on DVD piracy. The first regards a marketing campaign which has been mounted by the entertainment industries purporting to, inter alia, raise consumer awareness of cyber piracy law in order to adjust public attitude to the practice toward the negative, and to lobby for tougher IP regulation. It is argued that the campaign falls foul of the dangers of failing to fully identify piracy, and fails to communicate an accurate interpretation of the legal position to the intended audience.
The second case study examines an editorial concerning film piracy in an influential consumer movie magazine. It is submitted that the summation of piracy law and representation of the regulation in general is heavily flawed, and it is questioned whether the bias behind this journalistic failure could be as a result of the influence of lobbies such as those found in the first case study.
The findings of an exploratory study carried out in December 2006 are then presented. In addition to uncovering opportunities for further research, the results indicate that the public are, in many situations, under the impression that criminal sanctions regulating piracy are wider reaching than the current legislation presently provides. It is submitted that the results of the study lend credibility to the notion that influences such as those recognised in the case studies have effectively misrepresented the law to consumers. The danger posed by the possibility that policy makers may be as vulnerable as consumers and perhaps even the press to well-funded and wide-ranging lobbying is considered.
It is concluded that the representation of intellectual property regulation with regards to piracy must be counterbalanced if a truly objective middle-ground can be maintained when considering approaches to reform."
Discusses the gaps in the regulation of insider dealing left by the criminal law and self-regulat... more Discusses the gaps in the regulation of insider dealing left by the criminal law and self-regulatory organisations and mechanisms. Examines the criminal or civil status of the market abuse regime under the Financial Services and Markets Act 2000 Part VIII, focusing on its classification for the purposes of the European Convention on Human Rights 1950 and the domestic legal system, and the standard of proof required. Explores, by way of visual representation, the coverage of insider dealing regulations, the regulatory gaps that exist and whether they are filled by the market abuse regime, considering the seriousness of insider dealing, the severity of sanction and the standard of proof.
Examines the powers of the Financial Services Authority (FSA) under the Financial Services and Ma... more Examines the powers of the Financial Services Authority (FSA) under the Financial Services and Markets Act 2000's civil market abuse regime and the Criminal Justice Act 1993. Looks at: (1) the powers of detection, including supervision, market surveillance and whistleblowing; (2) the powers to investigate and to request information; and (3) the powers of enforcement, including regulatory enforcement, regulatory sanctions and criminal enforcement. Includes a flow chart on the FSA's investigation and enforcement procedure.
Offences which the Financial Service Authority (FSA) are encouraging employees to report concerni... more Offences which the Financial Service Authority (FSA) are encouraging employees to report concerning the financial sector, and the consultation released proposing extensions to the Public Interest Disclosure Act 1998 and guidelines for internal investigatory procedures.
Journal of International Commerical Law and Technology, Jan 1, 2013
Western legislatures tend towards the use of regulatory policies that favour strong intellectual ... more Western legislatures tend towards the use of regulatory policies that favour strong intellectual property rights over public access in the battle to regulate file sharing. It has become apparent that the legislature is increasingly relying on code-based regulation in order to detect infringement, to identify those infringing, and to enforce the law through technical measures. This paper will assess the efficacy of regulation by code in the context of Lessig’s assertion that “code is law”, as applied to the file sharing community. The conclusion will reveal a significant asymmetry between the intended application of the regulatory influence of code and its de facto applicability in the online environment.
"The Digital Economy Act 2010 was hurried into existence in the dying days of the last Labour gov... more "The Digital Economy Act 2010 was hurried into existence in the dying days of the last Labour government, and contains powers designed to resist unauthorised file sharing that are due to be
implemented by an Initial Obligations Code authored by Ofcom. Even before the Code has been published, there are several pre-existing key areas of the Act that contain significant evidential problems and potential incompatibilities with existing law. This paper critically reviews the legislation and identifies a number of significant flaws in consideration of its ongoing judicial review and the regulatory review by Ofcom. The status of the DEA in light of the recent decision in MediaCAT v. Adams is also discussed in the context of the threat it contains to the fundamental evidential foundation upon which the operation of the Act is based."
The recently published Media Piracy in Emerging Economies report includes a detailed consideratio... more The recently published Media Piracy in Emerging Economies report includes a detailed consideration of the conflict between the regulatory approach of strengthening IP regulations and enforcement, and the establishing of new business models in order to take advantage of efficient digital distribution. This paper defines the currently existing digital distribution model that describes how consumers presently access digital content, both legitimately and illegitimately. This foundation is then used to identify a number of alternative new business models and existing models that have been adapted from the analogue age such as indirectly supported distribution and advertising supported distribution, and the operation of the network effect, that together rely on a model of efficient distribution. It is concluded that due to the ineffectiveness of stronger enforcement at impeding piracy, the adoption of new models to adapt to efficient distribution remains the most efficacious approach.
Journal of International Commercial Law and …, Jan 1, 2011
Regulators have a choice of approaches available to them in regulating digital copyright issues t... more Regulators have a choice of approaches available to them in regulating digital copyright issues that lie on a scale between restrictiveness and openness. In a world in which the regulator seems to exclusively rely on entrenching a restrictive approach, this paper questions whether the long-forgotten open approach is worth reconsidering in the digital age. The ideal of cyber socialism is examined in the context of the roots and structure of cyberspace and its state of nature, and digital distribution models operating outside of the existing law are considered. The Creative Commons licenses are evaluated for their suitability in opening the current one-note regulatory regime.
International Review of Law, Computers & Technology, Jan 1, 2007
"The ongoing problem of digital file sharing technology evolving at a speed far greater than the ... more "The ongoing problem of digital file sharing technology evolving at a speed far greater than the law can keep up with is demonstrable with the cases against Napster and Grokster seeing measures upheld against the producers of centralised and decentralised peer-to-peer networks towards the ends of their natural useful lives. As file sharers and, with them, copyright infringers, move onto more efficient networks such as BitTorrent, the story is repeated but with the new problem of the client software being open source.
This has led to avenues alternative to litigating against makers of peer-to-peer network clients being explored. Although it is a long established principle that criminal sanctions can be levied against copyright infringers who operate in the course of a business, ostensibly making money from the labours of others without authorisation, the industries in their fervour to dissuade the sharing of infringing files have inadvertently raised the question of what constitutes an alternative type of infringer, namely one who harms the copyright holder without benefiting from financial gain themselves.
This type of file sharer is described in the Copyright, Designs and Patents Act 1988 as a person who distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright. Unfortunately, the parameters of this test of prejudicial effect is not defined in the Act, has not been addressed by the judiciary and has left commentators submitting conflicting and uncertain views as to where the boundary of this test lies.
This test is examined in the Hong Kong case of HKSAR v. Chan Nai-Ming, which is notable for being the first case in the world where a user of BitTorrent has been criminally prosecuted and given a custodial sentence. This paper examines the case in the context of its alternative approach to curbing a peer-to-peer network that is quite distinct from the likes of Kazaa, and considers the stance taken in light of the test of prejudicial affect which is echoed in the Hong Kong Copyright Ordinance 1997.
With reference to alternative perspectives on the test, including proposals for reform from the Hong Kong government itself, it is argued that the highly strict and surprisingly low level at which the test for prejudicial affect is set is counter-intuitive to the goals of curbing the problems piracy poses. The influence this ruling could have upon a UK interpretation of the test after the final appeal has been heard is considered, and it is concluded that the ongoing battle between file sharers and their opponents has led to the loss of sight of the true goal of regulation: the protection of copyright holders from suffering de facto harm that is at least above a relatively negligible standard."
The ongoing battle between file sharers and the entertainment industries is one which has been la... more The ongoing battle between file sharers and the entertainment industries is one which has been largely approached from the point of view of the latter parties with the reasoning that the law should be invoked to clamp down on the distribution of unauthorised copies of works through peer to peer networks. This paper argues that the industries, with the assistance of the legislature in certain circumstances, should be focussing their attentions not on limiting the natural evolution being brought about in the digital age, but by recognising that many of the parties labelled as scurrilous pirates are actually a rich market which can be tapped into through alternative means.
An analysis of various theories relating to the routes, impacts and effects of file sharing is applied to a digital distribution model. The model is then expanded to encompass the Efficient Distribution Theory which argues that, through the application of measures which can be cheaply and easily implemented by the entertainment industries, a number of factors can mitigate any negative effects file sharing may cause to the extent that widely distributing digital copies can be directly beneficial to the industries.
The analysis and theory is supported by the results of a research study carried out by the author in February 2007, which are presented in this paper. The findings of the research indicate that those who engage in cyber piracy not only financially spend more on authorised products proliferated by the entertainment industries compared to those who do not engage in piracy, but are also willing to move away from committing tortious acts of copyright infringement if the industries can provide a viable alternative means of digital delivery, inter alia.
As the internet has become ever more prolific and intrinsic to modern society, so it has attracte... more As the internet has become ever more prolific and intrinsic to modern society, so it has attracted the attention of the regulators of the world. As the domestic and international legislatures apply their increasingly restrictive rules to the information superhighway, this paper asks if they have considered the ramifications of limiting the natural evolution of the internet.
By taking a normative view of the internet and the behaviour of its users, the concept of cyber socialism as applied to the file sharing of intellectual property is evaluated in terms of viability and value. As the internet has evolved from a state of cyber-nature to the point where large proportions of cyberspace are being governed effectively by no more than self-regulation, it is recognised that the internet must always be treated as an addition to the real world running in parallel to its practices as opposed to an entirely separate entity.
It is concluded that regulators should be taking heed of the capabilities of the internet to run without unnecessary impediments while simultaneously allowing real world practices to flourish, and should therefore be following the example of the Creative Commons to robustly protect the interests of intellectual property rights holders without impairing the strengths of the internet rather than falling prey to undue influence exerted by the creative industries and their outmoded business models.
Journal of International Commercial Law and …, Jan 1, 2007
"Although commentaries regarding intellectual property regulation frequently point out the comple... more "Although commentaries regarding intellectual property regulation frequently point out the complexities inherent in its subsistence and reform, the subject is still often discussed in overly simplistic terms of black and white. This paper examines the problems such a view poses, and questions whether a blanket of misunderstanding, or even misdirection, has been used to influence the progression of the regulation in the digital age.
The primary hypothesis is that public perception of the law relating to cyber piracy is out of step with the contemporary de facto legal position.
The definition of cyber piracy is summarised, and the issues relating to confusion surrounding the boundaries or simply considering the myriad categories of piracy as a single topic are discussed. The current law as per the Copyright, Designs and Patents Act 1988 as amended is also outlined for the purpose of evaluating the hypothesis, and the border of cyber piracy in relation to the entertainment industries (concerning film, television and software) is set for the rationale of the analysis.
Further exploration takes place through two case studies which concentrate on DVD piracy. The first regards a marketing campaign which has been mounted by the entertainment industries purporting to, inter alia, raise consumer awareness of cyber piracy law in order to adjust public attitude to the practice toward the negative, and to lobby for tougher IP regulation. It is argued that the campaign falls foul of the dangers of failing to fully identify piracy, and fails to communicate an accurate interpretation of the legal position to the intended audience.
The second case study examines an editorial concerning film piracy in an influential consumer movie magazine. It is submitted that the summation of piracy law and representation of the regulation in general is heavily flawed, and it is questioned whether the bias behind this journalistic failure could be as a result of the influence of lobbies such as those found in the first case study.
The findings of an exploratory study carried out in December 2006 are then presented. In addition to uncovering opportunities for further research, the results indicate that the public are, in many situations, under the impression that criminal sanctions regulating piracy are wider reaching than the current legislation presently provides. It is submitted that the results of the study lend credibility to the notion that influences such as those recognised in the case studies have effectively misrepresented the law to consumers. The danger posed by the possibility that policy makers may be as vulnerable as consumers and perhaps even the press to well-funded and wide-ranging lobbying is considered.
It is concluded that the representation of intellectual property regulation with regards to piracy must be counterbalanced if a truly objective middle-ground can be maintained when considering approaches to reform."
Discusses the gaps in the regulation of insider dealing left by the criminal law and self-regulat... more Discusses the gaps in the regulation of insider dealing left by the criminal law and self-regulatory organisations and mechanisms. Examines the criminal or civil status of the market abuse regime under the Financial Services and Markets Act 2000 Part VIII, focusing on its classification for the purposes of the European Convention on Human Rights 1950 and the domestic legal system, and the standard of proof required. Explores, by way of visual representation, the coverage of insider dealing regulations, the regulatory gaps that exist and whether they are filled by the market abuse regime, considering the seriousness of insider dealing, the severity of sanction and the standard of proof.
Examines the powers of the Financial Services Authority (FSA) under the Financial Services and Ma... more Examines the powers of the Financial Services Authority (FSA) under the Financial Services and Markets Act 2000's civil market abuse regime and the Criminal Justice Act 1993. Looks at: (1) the powers of detection, including supervision, market surveillance and whistleblowing; (2) the powers to investigate and to request information; and (3) the powers of enforcement, including regulatory enforcement, regulatory sanctions and criminal enforcement. Includes a flow chart on the FSA's investigation and enforcement procedure.
Offences which the Financial Service Authority (FSA) are encouraging employees to report concerni... more Offences which the Financial Service Authority (FSA) are encouraging employees to report concerning the financial sector, and the consultation released proposing extensions to the Public Interest Disclosure Act 1998 and guidelines for internal investigatory procedures.
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Papers by Michael Filby
implemented by an Initial Obligations Code authored by Ofcom. Even before the Code has been published, there are several pre-existing key areas of the Act that contain significant evidential problems and potential incompatibilities with existing law. This paper critically reviews the legislation and identifies a number of significant flaws in consideration of its ongoing judicial review and the regulatory review by Ofcom. The status of the DEA in light of the recent decision in MediaCAT v. Adams is also discussed in the context of the threat it contains to the fundamental evidential foundation upon which the operation of the Act is based."
This has led to avenues alternative to litigating against makers of peer-to-peer network clients being explored. Although it is a long established principle that criminal sanctions can be levied against copyright infringers who operate in the course of a business, ostensibly making money from the labours of others without authorisation, the industries in their fervour to dissuade the sharing of infringing files have inadvertently raised the question of what constitutes an alternative type of infringer, namely one who harms the copyright holder without benefiting from financial gain themselves.
This type of file sharer is described in the Copyright, Designs and Patents Act 1988 as a person who distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright. Unfortunately, the parameters of this test of prejudicial effect is not defined in the Act, has not been addressed by the judiciary and has left commentators submitting conflicting and uncertain views as to where the boundary of this test lies.
This test is examined in the Hong Kong case of HKSAR v. Chan Nai-Ming, which is notable for being the first case in the world where a user of BitTorrent has been criminally prosecuted and given a custodial sentence. This paper examines the case in the context of its alternative approach to curbing a peer-to-peer network that is quite distinct from the likes of Kazaa, and considers the stance taken in light of the test of prejudicial affect which is echoed in the Hong Kong Copyright Ordinance 1997.
With reference to alternative perspectives on the test, including proposals for reform from the Hong Kong government itself, it is argued that the highly strict and surprisingly low level at which the test for prejudicial affect is set is counter-intuitive to the goals of curbing the problems piracy poses. The influence this ruling could have upon a UK interpretation of the test after the final appeal has been heard is considered, and it is concluded that the ongoing battle between file sharers and their opponents has led to the loss of sight of the true goal of regulation: the protection of copyright holders from suffering de facto harm that is at least above a relatively negligible standard."
An analysis of various theories relating to the routes, impacts and effects of file sharing is applied to a digital distribution model. The model is then expanded to encompass the Efficient Distribution Theory which argues that, through the application of measures which can be cheaply and easily implemented by the entertainment industries, a number of factors can mitigate any negative effects file sharing may cause to the extent that widely distributing digital copies can be directly beneficial to the industries.
The analysis and theory is supported by the results of a research study carried out by the author in February 2007, which are presented in this paper. The findings of the research indicate that those who engage in cyber piracy not only financially spend more on authorised products proliferated by the entertainment industries compared to those who do not engage in piracy, but are also willing to move away from committing tortious acts of copyright infringement if the industries can provide a viable alternative means of digital delivery, inter alia.
By taking a normative view of the internet and the behaviour of its users, the concept of cyber socialism as applied to the file sharing of intellectual property is evaluated in terms of viability and value. As the internet has evolved from a state of cyber-nature to the point where large proportions of cyberspace are being governed effectively by no more than self-regulation, it is recognised that the internet must always be treated as an addition to the real world running in parallel to its practices as opposed to an entirely separate entity.
It is concluded that regulators should be taking heed of the capabilities of the internet to run without unnecessary impediments while simultaneously allowing real world practices to flourish, and should therefore be following the example of the Creative Commons to robustly protect the interests of intellectual property rights holders without impairing the strengths of the internet rather than falling prey to undue influence exerted by the creative industries and their outmoded business models.
The primary hypothesis is that public perception of the law relating to cyber piracy is out of step with the contemporary de facto legal position.
The definition of cyber piracy is summarised, and the issues relating to confusion surrounding the boundaries or simply considering the myriad categories of piracy as a single topic are discussed. The current law as per the Copyright, Designs and Patents Act 1988 as amended is also outlined for the purpose of evaluating the hypothesis, and the border of cyber piracy in relation to the entertainment industries (concerning film, television and software) is set for the rationale of the analysis.
Further exploration takes place through two case studies which concentrate on DVD piracy. The first regards a marketing campaign which has been mounted by the entertainment industries purporting to, inter alia, raise consumer awareness of cyber piracy law in order to adjust public attitude to the practice toward the negative, and to lobby for tougher IP regulation. It is argued that the campaign falls foul of the dangers of failing to fully identify piracy, and fails to communicate an accurate interpretation of the legal position to the intended audience.
The second case study examines an editorial concerning film piracy in an influential consumer movie magazine. It is submitted that the summation of piracy law and representation of the regulation in general is heavily flawed, and it is questioned whether the bias behind this journalistic failure could be as a result of the influence of lobbies such as those found in the first case study.
The findings of an exploratory study carried out in December 2006 are then presented. In addition to uncovering opportunities for further research, the results indicate that the public are, in many situations, under the impression that criminal sanctions regulating piracy are wider reaching than the current legislation presently provides. It is submitted that the results of the study lend credibility to the notion that influences such as those recognised in the case studies have effectively misrepresented the law to consumers. The danger posed by the possibility that policy makers may be as vulnerable as consumers and perhaps even the press to well-funded and wide-ranging lobbying is considered.
It is concluded that the representation of intellectual property regulation with regards to piracy must be counterbalanced if a truly objective middle-ground can be maintained when considering approaches to reform."
implemented by an Initial Obligations Code authored by Ofcom. Even before the Code has been published, there are several pre-existing key areas of the Act that contain significant evidential problems and potential incompatibilities with existing law. This paper critically reviews the legislation and identifies a number of significant flaws in consideration of its ongoing judicial review and the regulatory review by Ofcom. The status of the DEA in light of the recent decision in MediaCAT v. Adams is also discussed in the context of the threat it contains to the fundamental evidential foundation upon which the operation of the Act is based."
This has led to avenues alternative to litigating against makers of peer-to-peer network clients being explored. Although it is a long established principle that criminal sanctions can be levied against copyright infringers who operate in the course of a business, ostensibly making money from the labours of others without authorisation, the industries in their fervour to dissuade the sharing of infringing files have inadvertently raised the question of what constitutes an alternative type of infringer, namely one who harms the copyright holder without benefiting from financial gain themselves.
This type of file sharer is described in the Copyright, Designs and Patents Act 1988 as a person who distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright. Unfortunately, the parameters of this test of prejudicial effect is not defined in the Act, has not been addressed by the judiciary and has left commentators submitting conflicting and uncertain views as to where the boundary of this test lies.
This test is examined in the Hong Kong case of HKSAR v. Chan Nai-Ming, which is notable for being the first case in the world where a user of BitTorrent has been criminally prosecuted and given a custodial sentence. This paper examines the case in the context of its alternative approach to curbing a peer-to-peer network that is quite distinct from the likes of Kazaa, and considers the stance taken in light of the test of prejudicial affect which is echoed in the Hong Kong Copyright Ordinance 1997.
With reference to alternative perspectives on the test, including proposals for reform from the Hong Kong government itself, it is argued that the highly strict and surprisingly low level at which the test for prejudicial affect is set is counter-intuitive to the goals of curbing the problems piracy poses. The influence this ruling could have upon a UK interpretation of the test after the final appeal has been heard is considered, and it is concluded that the ongoing battle between file sharers and their opponents has led to the loss of sight of the true goal of regulation: the protection of copyright holders from suffering de facto harm that is at least above a relatively negligible standard."
An analysis of various theories relating to the routes, impacts and effects of file sharing is applied to a digital distribution model. The model is then expanded to encompass the Efficient Distribution Theory which argues that, through the application of measures which can be cheaply and easily implemented by the entertainment industries, a number of factors can mitigate any negative effects file sharing may cause to the extent that widely distributing digital copies can be directly beneficial to the industries.
The analysis and theory is supported by the results of a research study carried out by the author in February 2007, which are presented in this paper. The findings of the research indicate that those who engage in cyber piracy not only financially spend more on authorised products proliferated by the entertainment industries compared to those who do not engage in piracy, but are also willing to move away from committing tortious acts of copyright infringement if the industries can provide a viable alternative means of digital delivery, inter alia.
By taking a normative view of the internet and the behaviour of its users, the concept of cyber socialism as applied to the file sharing of intellectual property is evaluated in terms of viability and value. As the internet has evolved from a state of cyber-nature to the point where large proportions of cyberspace are being governed effectively by no more than self-regulation, it is recognised that the internet must always be treated as an addition to the real world running in parallel to its practices as opposed to an entirely separate entity.
It is concluded that regulators should be taking heed of the capabilities of the internet to run without unnecessary impediments while simultaneously allowing real world practices to flourish, and should therefore be following the example of the Creative Commons to robustly protect the interests of intellectual property rights holders without impairing the strengths of the internet rather than falling prey to undue influence exerted by the creative industries and their outmoded business models.
The primary hypothesis is that public perception of the law relating to cyber piracy is out of step with the contemporary de facto legal position.
The definition of cyber piracy is summarised, and the issues relating to confusion surrounding the boundaries or simply considering the myriad categories of piracy as a single topic are discussed. The current law as per the Copyright, Designs and Patents Act 1988 as amended is also outlined for the purpose of evaluating the hypothesis, and the border of cyber piracy in relation to the entertainment industries (concerning film, television and software) is set for the rationale of the analysis.
Further exploration takes place through two case studies which concentrate on DVD piracy. The first regards a marketing campaign which has been mounted by the entertainment industries purporting to, inter alia, raise consumer awareness of cyber piracy law in order to adjust public attitude to the practice toward the negative, and to lobby for tougher IP regulation. It is argued that the campaign falls foul of the dangers of failing to fully identify piracy, and fails to communicate an accurate interpretation of the legal position to the intended audience.
The second case study examines an editorial concerning film piracy in an influential consumer movie magazine. It is submitted that the summation of piracy law and representation of the regulation in general is heavily flawed, and it is questioned whether the bias behind this journalistic failure could be as a result of the influence of lobbies such as those found in the first case study.
The findings of an exploratory study carried out in December 2006 are then presented. In addition to uncovering opportunities for further research, the results indicate that the public are, in many situations, under the impression that criminal sanctions regulating piracy are wider reaching than the current legislation presently provides. It is submitted that the results of the study lend credibility to the notion that influences such as those recognised in the case studies have effectively misrepresented the law to consumers. The danger posed by the possibility that policy makers may be as vulnerable as consumers and perhaps even the press to well-funded and wide-ranging lobbying is considered.
It is concluded that the representation of intellectual property regulation with regards to piracy must be counterbalanced if a truly objective middle-ground can be maintained when considering approaches to reform."