With 2011 having come to a close it seems pertinent to take stock of what has been achieved so far and what new measures are being taken in the ongoing fight against piracy - the bane of the music business since the advent of digital technology and the internet. Music companies have been using every resource available to them in their fight against rampant on line piracy which has all but brought them to their knees. Industry bodies in the US and Europe have been campaigning for stricter anti-piracy laws and harsher punitive measures to contain the scourge. Many file sharing sites like Napster, Kaaza and Limewire have since been shut down, thousands of lawsuits have been filed by rights owners against copyright infringers but even today over a decade into the digital era we are still nowhere near a workable solution that would bring an end to piracy.

The basic premise of copyright law is that the remunerative benefits of creative works should accrue to rights holders, authors and creators for a limited period of time and the benefits of creativity should accrue to society at large. Reality is that in most cases rights holders are corporates, to whom authors and creators have assigned their rights and maximum benefits accrue to them. Unfortunately technology has drastically eroded the benefits of both rights holders and in turn creators and authors. Revenue from sales of physical music continues to decline but is still higher than digital sales. The only silver lining in this bleak scenario is that even as illegal downloads continue income from legal digital downloads have been growing steadily and is set to overtake income from physical sales.

This seems to be a clear indication that people are willing to pay for the music they like to listen to. Time and again studies have shown that music pricing is a major factor that induces people to copy. It certainly implies that more and more people would rather pay for the music than copy it if it were priced reasonably. At present prices are seen to be way too high as far as the majority is concerned and the routine copying of music will continue till such time as the delivery of music is not made easily accessible and affordable to the majority. The remarkable success of iTunes is a case in point. More people are now paying for music downloads online than ever before.

The Music Industry however continues with its blinkered view that enforcement is the way to eliminate piracy. Though to an extent this may be true, there is enough evidence to indicate that enforcement so far has not delivered the expected results. One is reminded of a campaign launched by RIAA (Recording Industry Association of America), the US music industry body representing the four major record labels as early as 2003 which saw over 30,000 lawsuits being filed against individuals for sharing music files on P2P networks. The penalty as per US copyright law was as high as $ 150,000 per copyright infringement and not surprisingly in most cases people settled out of court for a few thousand dollars, as hiring an attorney was beyond the capacity of most people.

Obviously targeting individuals after successfully taking on P2P websites like Napster earlier was an abject failure as billions of music files continued to be shared by billions of people globally. RIAA claims that the exercise was to create awareness that downloading music was illegal and to put the fear of legal action into the minds of the people who download and share music files. Instead, the intimidating and unpopular strategy threw up fundamental legal issues including the legality of RIAA’s methods and the issue of whether making available music files on P2P networks constituted infringement. Though the fact is that these files when shared could definitely constitute infringement and P2P sites thus facilitate copying.

The other thing that the music industry tried was DRM (Digital Rights Management) Protection which again proved to be a failure due to the irritation factor faced by purchasers of DRM protected CDs when they tried to play them on their equipment. At times they were not even playable which led to the withdrawal of DRM protection on CDs and later on downloads purchased on the net. There was also the issue of fair use and moreover the digital code could be cracked. But unlike music DRM has been fairly successful in software business.

Nevertheless RIAA and the motion picture industry body, MPAA, seem to prefer pursuing their enforcement route and have been lobbying hard with the US government to strengthen laws empowering rights owners to force websites to take down content that infringed their copyright. Pressured by rights owners law makers in several countries, or like France, UK, New Zealand, S Korea and others who have already adopted them, have been pushing for laws based on graduated response or three strikes principle by which infringers on the net would be issued warnings a certain number of times after which ISPs would be required to automatically disconnect the infringer’s internet connection.

As expected these laws have generated their share of controversies and faced opposition from many quarters including rights groups and scholars. Though they may even be a step in the right direction as far as effectiveness is concerned, it appears to be rather impractical considering the sheer scale and economics of monitoring the innumerable users and sites on the web.

Today there are three Bills pending approval that have been introduced in the Congress for the sole purpose of protecting US Intellectual Property and it does underline the US Government’s serious concerns on this issue. The most recent is the Online Protection and Enforcement of Digital Trade Act (OPEN) while the two introduced earlier include the Stop Online Piracy Act (SOPA) and Protect IP Act. The OPEN Bill is said to have addressed some of the concerns of internet companies like Google, Yahoo, Facebook and others who felt that genuine sites would face discrimination and has found support with this group. Meanwhile SOPA which empowers rights owners to obtain orders forcing ISPs, payment gateways and advertisers to block websites that engage in copyright infringement, is close to being approved by the House Judiciary Committee.

Recently the Anti-Counterfeiting Trade Agreement (ACTA), a plurilateral agreement initiated by Japan and the US was signed by several countries including Canada, Singapore, Morrocco, South Korea, Australia and New Zealand on Oct 1, 2011. The European Union, Switzerland and Mexico support the treaty and are expected to sign in due course. The objective of the treaty was to establish improved international standards in the enforcement of intellectual property in the areas of goods counterfeiting, generic drugs and copyright infringement on the net. The treaty was outside of existing agreements under WTO, WIPO and the UN and would function independently to establish a strong IPR enforcement regime to meet the challenges of counterfeiting and piracy.

Its pretty clear that not only rights holders but also governments especially of developed countries are inclined to view enforcement as the way forward in the fight against piracy and counterfeiting, the cause of huge revenue losses for these countries over the years. Or in the case if internet, will technology which created the problem in the first place itself be the source of a lasting solution? Will India which follows developments in the developed countries also adopt similar measures and will they be successful in reversing the trend here? It will be interesting to watch the outcome in the coming years to see what answers it throws up.
~ Stanley Paul