Music industry mulls law change
OUT-LAW Radio, 09/11/2006
We hear how the law on the use of MP3 players is so out of date,
even the music industry wants to relax the rules, and we talk to
the man who beat the TV licence rap.
A text transcription follows.
This transcript is for anyone with a hearing impairment or who
for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew
Magee.
Hello and welcome to OUT-LAW Radio, the weekly podcast that
keeps you up-to-date on all the twists and turns in the world of
technology law.
Every week we bring you the latest news and in-depth features
that help you to make sense of the ever-changing laws that govern
technology today.
My name is Matthew Magee, and coming up on this week's show we
hear why millions of people in the UK are breaking the law every
single day, just by using their MP3 players, and we talk to the man
who brought the TV Licensing Authority to book.
But first, the news.
- CA's former chief jailed for 12 years;
- Privacy bosses vow to fight surveillance together; and
- Palm says NTP is suing on 'patents of doubtful validity'
The former Chief Executive of one of the world's leading
software companies has been sentenced to 12 years in jail for
committing securities fraud. Sanjay Kumar of Computer Associates
has also been fined $8 million.
Kumar was Chief Operating Officer of Computer Associates, now
renamed CA, before becoming Chief Executive in 2001. He pleaded
guilty earlier this year to securities fraud and to obstruction of
justice.
The accounting scandal centred on the false inflation of
quarterly results. Deals which were signed after a quarter ended
were backdated so that they increased a preceding quarter's revenue
figures. Kumar was found to be involved in the scheme, in which he
was said to encourage sales people to operate a '35 day month'. The
practice led to the incorrect reporting of $2.2 billion worth of
revenue. Executives at the company lied to an initial investigation
and withheld evidence, the government's case said.
A group of international data and privacy protection
commissioners has decided to act together to challenge the
surveillance society which they claim is developing. Commissioners
from the UK, France, Germany and New Zealand will adopt common
policies after agreeing to co-operate at the Annual Conference of
Data Protection and Information Commissioners in London last
week.
Data and privacy commissioners will support the establishment of
an international convention on data protection, which was first
agreed on by commissioners in 2005.
The company which sued the maker of the Blackberry for patent
infringement launched a similar case against handheld computer firm
Palm this week. Canada's research in motion (RIM), who make the
Blackberry hand-held email device, paid $612.5 million to settle
with US firm NTP in March, though it did not concede that it had
infringed NTP's patents.
Patent holding company NTP now alleges that Palm is infringing
its wireless email patents.
Palm said that all seven of the patents involved are "are being
re-examined by the US Patent and Trademark Office (PTO) and have
been rejected by the re-examiners as invalid."
That was this week's OUT-LAW News.
Millions of people across the UK break the law every day by
putting songs that they have legitimately bought on to their MP3
players. The law is an ass says one influential think tank. The
Institute for Public Policy Research has added its voice to a
growing clamour for copyright reform. The author of the report
which called for a private right to copy, Kay Withers, explains why
change is essential.
KW: The reason we have called for a private right to copy, is
that we just feel that currently copyright laws just mean that
millions of British consumers are breaking the law effectively when
they copy CDs to their computers, so it is just out of date with
consumer practices and particularly technological
progress.
MM: Obviously you are right in saying that millions of people
are breaking the law every week by doing this. That doesn't
make a law change right though does it? I mean you can't
change the law just to follow people's behaviour?
KW: No I mean obviously we are not just saying that is the sole
reason but I think if you look really at what the law currently
would expect consumers to do, it just doesn't really seem
fair. I mean asking someone who buys a CD in HMV to then have
to go onto a digital music store and buy that content again so that
they can listen to it personally based on their hi-fi and their MP3
player just doesn't seem fair.
The group that tracks and takes action on copyright breaches for
record companies is the British Phonographic Industry. Even the BPI
– the industry's own copyright police – thinks that a change of
some kind is needed. Richard Mollet is the body's Director of
public affairs.
"We certainly agree with the line that something needs to be
done. Whether one actually changes the law or not is actually a
moot point, because it is possible to give consumers that
permission simply through authorisation from the existing rights
holders. So you don't re-write the law but existing rights holders
could say to consumers here is what we are allowing you to do."
Withers disagrees. She says that a full law change is essential,
that users right to copy must not exist purely on the whim of the
recording industry.
"I think it's important because for three reasons
basically. One I have mentioned I think it reduces confusion
for consumers. Secondly I think it increases the legitimacy
of copyright law and finally you know it's good that the BPI have
said that they are not going to prosecute, but really we feel it
should be the Government deciding what the consumers' and citizens'
rights are rather than private businesses."
There is a snag, though. European rules say that a country can
choose whether or not to have a private right to copy. But if they
do have the right, then they must compensate artists. Most in
Europe do this through an extra charge on blank CDs, hard drives
and MP3 players. Withers believes that no compensation at all is
necessary, and that she can square that with Europe.
"There has to be kind of suitable financial compensation. I mean
that we saw that suitable financial compensation in this sense is
none really because it's not actually harming the artist. I would
really kind of resist going down the private levy route because
that does penalise all consumers regardless of whether they are
copying media or not."
Amazingly, the BPI agrees that no compensation is necessary, as
long as the copying is purely for personal use.
"If one allows a private right to copying then how does one go
about compensation and that again is one of the tricky issues in
this whole argument. We don't see what I've just outlined there as
necessarily needing to be accompanied with a levies regime".
At the heart of the issue are questions about the very nature of
copyright that are rarely asked, never mind answered. With large
media multinationals dominating the debate, Withers believes that
it has become skewed, and needs to be rebalanced. She believes the
Patent Office can help.
"It's important to remember that copyright is for the whole of
the UK population so when the Government is looking at this, they
need to take all different point of view into account. So
it's not just artists, it is also citizens and consumers. It is
also very difficult to kind of exactly clarify what the public
interest is. For instance there is no kind of one public body in
the UK which could be said to represent the public. The remit of
the Patent Office should be changed to have the public interest at
its heart because at the moment its mission is fairly narrow and we
just feel that the Patent Office should move forward to kind of
take a role in communicating and consulting with a much wider group
the stakeholders, both to explain regulation and to improve their
awareness of really where the copyright and how copyright should be
moving forward."
Former Financial Times Editor Andrew Gowers has been charged
with reviewing copyright law, and should report later this month to
Government. Mollet is confident that by then, we might have some
answers on the private right to copy.
"Not to pre-empt the Gowers report, but it is my understanding
that Gowers is going to say you know what, we do need to look at
this law because too many people are infringing it and it must
therefore need up-dating."
In today's cross-platform, multimedia age of multiplying kinds
of on screen entertainment and splintering attention spans, just
one of the many uses of a television is watching television
programmes.
But even if you only use your set for non-broadcast viewing, the
letters from TV licenses still come, as do the visits and, in some
instances, the court cases.
What can you do? Well, one man took exception to the hectoring
tone of the letters and visits he was receiving and took the
Licensing Authority to court. John Hirst, who says that he only
uses his television for watching videos, DVDs and CCTV footage from
the two cameras at his house, first lost the case and then won it
on appeal.
"Initially it began with the letters, you know there was a whole
lot of letters came. Each letter got more and more
threatening as it went along. You know basically saying these
premises are unlicensed. It was a whole load of assumptions
that I was doing something wrong and there was a section in the
letter that said if you don't require a TV then fill this in. But
you know there is no requirement for anyone to give them any
information whatsoever on anything like that so I just ignored the
letters."
When he first took the Licensing Authority on, Hirst lost his
case when, incredibly, a Magistrates' Court in Hull found him
'technically guilty'. The Court awarded him a complete discharge
because it seemed to believe that Hirst that he did not watch live
television programmes on his set, yet it simultaneously said he was
guilty.
"The prosecution was arguing that because I had bought a TV,
therefore I was in possession of it and therefore I was guilty you
know as though it was a strict liability and that isn't the
case. Because it was a television, therefore it’s a receiver,
therefore it is capable of receiving programmes and in that case I
was technically guilty even though the Magistrates believed that I
wasn't actually using it to watch live programmes."
Hirst suffers from a form of autism called Aspergers Syndrome
but was left to defend himself because he said legal aid was not
available. Nonetheless, he took his Appeal to the Hull Crown Court
and won, when the Licensing Authority said it would not defend the
case.
OUT-LAW Radio asked TV Licensing asked why they had failed to
defend themselves, but they didn't answer that question.
"According to the Judge he said that the TV Licensing Authority
had accepted my Appeal. You know so it was uncontested in that
sense. Basically I don't think they thought they had a chance
of winning the appeal."
Hirst took the case to appeal on a point of
principle. Hirst objected to the fact that his guilt was
assumed. Hirst has lived an extraordinary life. Convicted of
manslaughter in 1979 he was a violent prisoner when, in 1989, he
asked to be put on an educational pilot scheme in prison. He
learned about prisoners' rights and used those, rather than
violence, to fight for proper treatment in jail.
He later used the Human Rights Act to mount a successful
challenge to the Government's ban on prisoners talking to the
media, and founded the first prisoners' rights group, the
Association of Prisoners.
It was the injustice of his latest treatment that prompted him
to act.
"I have got a criminal record and I have admitted to offences,
you know as severe as manslaughter, you know and arson, so I'm not
going to lie on something as piddling as a TV licensing. Can you
understand that? Whereas the TV Licensing Authorities assume that
if you say that you don't watch a TV for live broadcasts, you're a
liar. So they got that wrong. You know they picked on the wrong
person. You know it is still down to the prosecution to prove
guilt, not for the assumption to be there that you are guilty and
you prove your innocence."
The extraordinary John Hirst there.
That's all we have time for this week, thanks for listening.
Why not get in touch with OUT-LAW Radio? Do you have a legal
problem you would like us to discuss the show? Do you know of a
technology law story? We'd love to hear from you on radio@out-law.com.
Make sure you tune in next week; for now, goodbye.
OUT-LAW Radio was produced and presented by Matthew Magee for
international law firm Pinsent Masons.
