Thursday 25 August 2011

The Lib Dems’ stimulating policy

A Lib Dem policy paper, ‘Preparing the Ground: Stimulating Growth in the Digital Economy’, recently published, argues that sections 17 and 18 of the DEA should be repealed. The other copyright provisions should not be commenced until it has been demonstrated that they are necessary and effective.

The paper advocates criminal prosecution of pirates rather than civil litigation. Piracy is a form of theft, it says. Since there is already legislation on theft, there is no reason why digital offenders should not be prosecuted under the criminal law in the same way as those who steal tangible goods. (Legally accurate, I would say, though not everyone would agree.) The paper frowns on rights-holders pursuing individuals ‘aggressively’. Instead they should put their efforts into education to tackle the culture of piracy. Labour, it says, focused on reducing piracy by ‘authoritarian means’. So civil litigation is ‘authoritarian’, while criminal prosecution is not? Rights-holders will be delighted to find the burden of dealing with illegal file-sharing being taken over by the police. Perhaps the Anti-looting Squad can take this on?

‘While it is difficult to “compete with free”, an essential part of any solution has to be to improve the quality of services provided legitimately,’ the paper predictably opines. Since most piracy is of hit songs and movies that are readily available, that box has already been well and truly ticked.

‘We are concerned about sites that sell material without having the right to do so, and would work with the advertisers on such sites, and the credit card companies, to cut off their sources of funding and reduce this harm.’ Not sure they’ve thought this one through.


Crosbie Fitch said...

There certainly has been a tendency in cartel hyperbole to elevate copyright infringement into a crime via aspersions that it constitutes theft (see What Do Infringement/Theft Analogies Really Illustrate?), and it would be very interesting to see cultural exchange policed by the corporate state - instead of those corporations currently holding the 18th century privileges to do so (specifically the subset wealthy enough to prosecute them).

One would have to change to a labelling/registration system whereby a policeman could check whether a physical copy was authentic (authorised) or of a work licensed for copying by the general public, and whether or not a public performer held a license. This might require some technology (such as used in YouTube) to detect use of copyright protected works not licensed for performance by the general public.

This change to policing would be a marked departure from a situation where copyright holders can choose to ignore favourable/promotional infringements. Licenses would have to be provided/obtained even for quotation purposes.

It may well be the case that the population can only be spurred into calling for copyright's abolition if there is a big enough spur to do so, e.g. as this inevitable regime of cultural totalitarianism kicks in, and to possess copies (whether licensed or not) or to engage in any public communication becomes fraught with jeopardy.

As I've always said, copyright enforcement will get much worse before it is abolished.

One day soon, iPods will become contraband - liabilities to all except those wealthy enough to have procured licenses for illicit copies thereon. Otherwise it's an arrestable offence: "Possession of illicit copies with intent to distribute".

Fahrenheit 451 here we come!

Anonymous said...

Anonymous said...

@ Anonymous -

Anonymous said...

That seems to be talking about one piece of property, the piece of property being 'appropriated', i.e. taken away, for a time. 'The thing' seems to be the property that was appropriated.

Does it cover making a copy of something, the original remaining at all times with its owner?

Crosbie Fitch said...

I think it's a rare thief who has the intention of permanently depriving the owner of something. Their primary intention is to obtain something valuable for themselves without the expense of permission from the current possessor.

That theft deprives the possessor of what was stolen is a consequence, not an intention.

One can define theft in terms of the consequence to the former possessor, or in terms of the intention of the thief, but conflating the consequence as an intention of the thief results in a nonsensical definition.

Anonymous said...

@ Anonymous - please see

Francis Davey said...

You can't "steal" (in terms of the Theft Act 1968) incorporeal personal property - at least not simply by infringing copyright. Theft involves more than simply interfering with property rights - otherwise there'd be little use for a charge of criminal damage.

Lord Goff gave a reasonable account of the difficulties in R v Preddy, where the "property" in issue was money held in a bank account - a chose in action. The problem being that the alleged thief would have to acquire that chose, rather than merely extinguish the pre-existing chose (or diminish its value). The thief cannot do that, even if the whole sum is transferred to their account.

Hence section 15A of the Theft Act 1968.

How you'd get around the "intention to permanently deprive" is another matter. Besides theft requires dishonesty. On the R v Gosh test, most infringers would (I suspect) not be dishonest. Many (most?) would have a claim of right - particularly young teens of course.

So, neat though it might be as an idea, copyright-infringement-as-theft doesn't work. There's a much closer fit with criminal damage which involves harm to a property interest but not the various technical requirements of section 1. There's a reason we have had to enact specific offences (like 15A or abstracting electricity) to deal with non-traditional forms of "theft".