Digitization: Conflict between Rights Owners and the Public?

Yesterday, the Leeds branch of the Licensing Executives Society enjoyed a masterly presentation by Andrew Finfer on Technology Transfer and Competition Law. One of the issues that our chair, Liz Ward, raised in Q & A was the compatibility of restrictions regularly imposed by the recording industry with UK and EC competition law. Her point was that these restrictions were hobbling the development of an online market in digital products. In his answer, Andrew said that similar arguments were made in respect of the distribution of consumer electronics.

I waded in with the suggestion that the two markets were quite different in that consumer electronics had to be made and stored whereas any numbers of a perfect copies of a game, film or sound recording can be disseminated anywhere in the world within seconds. I added that if the film, video and games software industries imposed tight controls over the dissemination of their products it could be because they needed it. When I was starting out at the bar pirates had to make and store discs and tapes which meant that there were warehouses that could be targeted with search orders (Anton Pillers as we called them then) or consignments detained at the ports. That’s no longer the case with digitization.

After I got back from the meeting I found a very interesting article on the BBC website entitled “Fears raised over digital rights“. The article highlighted a campaign by the National Consumer Council and its associates in the BEUC and USA over digital rights. There seem to be the seeds of conflict there albeit that nobody will say so in terms – at least not yet. As Andrew said at the beginning of his talk yesterday, the aim of both competition policy and intellectual property law is to promote consumer welfare.


About Jane Lambert

I am a barrister specializing in intellectual property, technology, media and entertainment and competition law. I specialize in helping SME (small and medium enterprises) protect and exploit their investment in brands, design, technology and the arts. SME require intellectual property (legal protection for their intellectual assets) at least as much as big business but their limited means restrict the way they can use it. Looking after such clients wisely requires skills and knowledge which have taken me years to learn.
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One Response to Digitization: Conflict between Rights Owners and the Public?

  1. We in the UK have the right to ‘time shift’ copy but not the right to ‘format shift’. Even then, the right to time shift applies only to broadcasts of copyright works. Presumably this means that transferring your cd collection to your ipod is unlawful but storing a radio or other broadcast programme on it is not, provided you are doing it “solely for the purpose of enabling it to be viewed or listened to at a more convenient time…”.It’s also opaque as to how the money should follow the rights. DRM has a certain ‘pay as you go’ simplicity but enforcement against organised piracy with the ability to crack the DRM software (as opposed to the average buyer of a Sony label CD who wants to play it on their PC) must be a nightmare for all but the deepest pockets. We have no levies on blank recording media (CDs, tapes, hard drives) in this country, unlike elsewhere in Europe where various copyright societies receive and distribute these fees to artists/authors. On the one hand levies are good because all artists/authors regardless of size will be able to benefit equally (although the big boys will probably just end up getting paid twice, once through levies and once through DRM). On the other, they do not discriminate between the lawful user and the serial infringer; they also add cost to products, restricting entry to the market. The reason for the lack of levies in the UK is that we have a ‘liberal’ regime in allowing time shift copying. But that’s clearly not liberal enough in this day and age, is it? I think that a change in the law might be expecting too much of our legislators when industry is still in such a state of flux…

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