Enforcing Copyright in The Digital Age Age-The Problem of Music Piracy in The UK and US

Enforcing Copyright In The Digital Age: The Problem Of Music Piracy In The UK And US
Enforcing Copyright In The Digital Age: The Problem Of Music

Piracy In The UK And US
A.S.M. Sayem Ali Pathan1
1. Introduction
In this era of technology, what concerns the producers most is the reservation of any
intellectual property in digital form, because of its volatile nature in terms of access.
The journey towards the effective and harmonize system of copyright law and the quest for
its proper enforcement is continues for the last 100 years. Even after the 100 years of the
journey, it cannot be said that the world community achieve the goal of the journey.
The present copyright law situation is yet to achieve a secure form for the purpose of prevent
the infringement of copyright law. There are enormous reasons behind the non-achieving goal
irrespective of newly enacted law which are discussed in this paper.
The primary concern of this paper is the context of the United Kingdom and the United States
and the focusing point is music piracy. Among the states which are the ultimate victim of
music piracy, the United States and the United Kingdom are the top two. Both of these states
face economic loss which is large in amount due to the music piracy.
Though domestic as well as international efforts have been taken and all those efforts become
successful in terms of enacting laws and adopting treaties but it is to be pointed out that those
efforts are yet to be successful in terms of enforcement.
International harmony along with strong domestic setup for protection of copyright law in
order to prevent music piracy is always the considering point. But the process of achieving
the goal is less speedy than the rapid development of the technology. For this reason the
enforcement of copyright law to prevent music piracy is yet to achieve the goal.
2. General Concepts:
Generally, when a person makes copy or distributes a piece of music without having the
consent from the composer, recording artist, copyright holding company, then it will call
music piracy. This unauthorized and prohibited use of the music violates the exclusive rights
i.e. reproduce or other works under copyright of the copyright holder. Hence, it is a form of
copyright infringement. Before going through various definitional aspects of music piracy we
should define various technical terms which are used in understanding music piracy.
The question of Music piracy comes when the copyright of the composer or recording artist
or copyright holding company has been violated. In general sense, Copy rights includes a
set of exclusive rights granted by the State to a person for his original work for a limited
period of time upon release of the work. The copyright can be granted to the assignee of the
creator of an original work. The exclusive rights incorporate control over copying and
distribution of the original work. After certain period of time the original work becomes the
subject of public domain. Books were the only subject of copyright in the beginning. Now,
1
Advocate, Supreme Court of Bangladesh.
copy right wraps a wide range of works i.e. music, dramatic works, maps, photographs,
architectural drawings, sound recordings, motion pictures, computer programs, paintings etc.
In a sense, copyright includes every work which has an original creator.
2.1. Music Piracy

Anglo-American legal commentators and current expositors of positive laws used the word
infringement in the nineteenth century when the authors rights were violated. Now, the
term infringement is used interchangeably with piracy. In the arena of technology, piracy
implies commercial reproduction i.e. record piracy. Music piracy is regarded as a new crime
in the twenty-first century and the concept of social moralities with has got a blurry effect as
some people do not treat it as crimes in actual sense.2
"Internet piracy" includes various unauthorized uses of music or other creative materials on
the Internet. Particularly, when the activities of commercial nature amount to infringement on
the internet then it is referred as internet piracy irrespective of the motive of the perpetrator. 3
In its generic sense, the violation of copyright of any creative content in the internet by means
of unauthorized using is referred as internet piracy. This unauthorized use can be made via
web sites, P2P networks, file sharing, or other means. Piracy includes certain activities fall
into the following categories:
1
a. Physical music piracy embraces the process of making or distribution of

copies of sound recordings on physical carriers without the authorization of the
copyrights owner. The packaging of pirate copies may or may not be different
from the original. Pirate copies is likely to be compilations, i.e. the Best songs,
Greatest Romantic Songs of an artist. It may be a collection of a particular
genre i.e. rap, jazz etc. Sometimes it may be a compilation of hit titles of
different music companies.
b. Counterfeits includes unauthorized recording which is done without required

permission from the artist or publisher or the copyright holder. The lebel,
trademark, artwork are also copied which are then packaged in order to make
them look like the original as much as possible. The purpose is to mislead the
consumer into believing or thinking that they are buying the original or genuine
product..
c. Bootlegs imply the unauthorized recordings and duplication of live or

broadcast performances. Without the permission of the artist, composer, producer
or record company the recording, duplication and sell are made.
d. Online Piracy is referred to the unauthorized uploading of music files for the
purpose of public use or downloading those uploaded files from internet site. It
also embraces certain uses of streaming technology.4 Thus, it is interesting to
note that downloading a single song without permission onto a PC is piracy,
Gelesthorpe. Loraine, Copyright infringement: A Criminological Perspective in Copyright and Piracy: An

Interdisciplinary Critique edited by Lionel Bently, Jennifer Davis, Jane C. Ginsburg, Cambridge University
Press, 2010, p- 389
3
JP MPhil in the article Criminal Actions - Copyright in the Digital Age, Criminal Law and Justice Weekly
(formerly Justice of the Peace)/2010/Issue 42, October (2010), 174 JPN 645.
4
http://portal.unesco.org/culture/en/ev.phpURL_ID=39412&URL_DO=DO_TOPIC&URL_SECTION=201.html, Dated: 15.09.2011.
though it is not sold or use in other unauthorized way. Unauthorized internet

music sites use MIDI technology or MP3 files which is available for the purpose
of downloading by a user of internet. The indefinite use of such music files put
the artists or the producer or music companies into a threat of sustainable
economical loss. Illegitimate downloads take place through file-sharing
networks, illegal servers, websites and hacked computers.
It is to be noted that sampling is also piracy. Sampling includes two different uses of recorded
music. Firstly, when an artist uses any sample of another song for the purpose of getting
music materials for their own composition. The other song might be a popular one of another
performer. Secondly, when a consumer downloads any segment of recorded music. Thus,
radio and nightclub disc jockeys along with other "samplers" are liable for violation of
copyright laws in strict sense as they use the sample song without the authorization though
the CD is legitimate one and bought legitimately.5
2.2. File Sharing

File sharing is the practice of transmitting or distributing or facility to access to the
information stored digitally. Computer programs, audio, images, and video, documents, or
electronic books are usual subject of file sharing through internet or by using other viable
materials. Ways to implement file sharing includes manual sharing using removable media,
centralized servers on computer networks, hyperlinked documents based on World Wide Web
and peer-to-peer networking. File-sharing is not in itself illegal in all cases. It becomes
illegal when the users are sharing digital contents i.e. music or films or other digital contents
which are protected by copyright law. Moreover, sharing a copyright protected works cannot
be illegal in some exceptional cases. For example, freeware, shareware, open source, or anticopyright supported contents sharing do not amount to violation of copyright law as the
artists use them for the promotion of their works. Sharing contents in public domain is also
not the violation of copyright law.
There are two types of file sharing namely, peer-to-peer and file hosting services.
2.2.1. Peer-to-peer file sharing:
Users of a peer to peer network can be connected with another user of the same network by
using software for the purpose of searching and downloading any expected files i.e. music,
video, word files etc.
2.2.2. File hosting services:
The alternative of peer-to-peer software is file hosting services. A file hosting service is also
known as online file storage provider, or cyber locker. This is an Internet hosting service
intended to host user files. Typically they allow HTTP and FTP access. The other related
services are content-displaying hosting services i.e. video, image, audio/music, virtual
storage, and remote backup.
2.2.3. Economic impact on the music industry:
http://www.soc.duke.edu/~s142tm01/piracyfaq.html. Dated; 14.09.2011.
According to the British Recorded Music Industry (BPI) Chief Executive Geoff Taylor, there
were around six million active file-sharers in the UK in 2008. 6 Today, an estimated 95 per
cent of all digital music is downloaded.7 The research conducted by the "International
Federation of the Phonographic Industry" (IFPI)8 shows that around 40 billion music files
were downloaded without payment in 2008. In 2004 there were an estimated 70 million
people participating in online file sharing9. According to a CBS News poll, in 2009 fifty-eight
percent of Americans who follow the file sharing issue, considered it acceptable in at least
some circumstances; with 18 to 29 year olds this percentage reached as much as 70%.10
It is evident from a number of studies that the music industry affected negatively due to the
file sharing. Music sales dropped globally from approximately $38 billion in 1999 to $32
billion in 2003.11
2.2.4. Some paradoxical findings:
Although it has been argued that the reports are biased as those were funded directly and
indirectly by media companies as they are not intended to reveal the actual facts.12
This report also provide an interesting phenomena of the people who involved in file sharing.
It is stated that people involved in file sharing purchase more DVDs than the average
consumers.13 These findings also get support from other studies i.e. the BI Norwegian School
of Management where it is found that those who download music illegally are also 10 times
more likely to pay for songs than those who don't.14
It is complicated to untangle the cause and effect relationships among a number of different
trends, including an increase in legal online purchases of music; illegal file-sharing; drops in
the prices of CDs; and the extinction of many independent music stores with a concommitant
shift to sales by big-box retailers.15 According to David Glenn, writing in The Chronicle of
Higher Education, "A majority of economic studies have concluded that file sharing hurts
6
BPI Chief Executive Geoff Taylor's speech, "The role of record labels in the digital age" on June 20, 2008.
JP MPhil in the article Criminal Actions - Copyright in the Digital Age, Criminal Law and Justice Weekly
(formerly Justice of the Peace)/2010/Issue 42, October (2010), 174 JPN 645
8
The International Federation of the Phonographic Industry (IFPI) represents the recording industry worldwide
with some 1,400 members in 72 countries and affiliated industry associations in 44 countries .see, www.ifpi.org.
9
Delgado, Ray. Law professors examine ethical controversies of peer-to-peer file sharing. Stanford Report,
March 17, 2004.
10
Poll: Young Say File Sharing OK . see,
http://www.cbsnews.com/stories/2003/09/18/opinion/polls/main573990.shtml
11
Alejandro Zentner, "File Sharing and International Sales of Copyrighted Music: An Empirical Analysis with a
Panel of Countries", The B.E. Journal of Economic Analysis & Policy, Vol. 5, Issue 1 (2005);
Stan J. Liebowitz, "File Sharing: Creative Destruction or Just Plain Destruction?"; Rafael Rob and Joel
Waldfogel, "Piracy on the High C's: Music Downloading, Sales Displacement, and Social Welfare in a Sample
of College Students"; Alejandro Zentner, "Measuring the Effect of File Sharing on Music Purchases", The
Journal of Law and Economics, Vol. 49, No. 1 (April 2006).
12
See, "Movie industry buries report proving pirates are great consumers" at http://www.geek.com/articles/geekcetera/movie-industry-bins-report-proving-pirates-are-great-consumers-20110720/. Dated: 10.09.2011
13
Ibid.
14
See "Study finds pirates 10 times more likely to buy music", The Guardian. 2009-04-21, at
http://www.guardian.co.uk/music/2009/apr/21/study-finds-pirates-buy-more-music. Dated: 10.09.2011
15
Smith, Ethan. "Sales of Music, Long in Decline, Plunge Sharply: Rise in Downloading Fails to Boost
Industry;
A
Retailing
Shakeout",
Wall
Street
Journal,
March
21,
2007,
p.
1.
See,http://online.wsj.com/public/article/SB117444575607043728-oEugjUqEtTo1hWJawejgR3LjRAw_20080320.html?
mod=rss_free. Dated: 10.09.2011
7
sales", though not always to the precise degree "the record industry would like the public to
believe."16
It is interesting to state that in 2004, Felix Oberholzer-Gee and Koleman Strumpf analyzed
logs of downloads on file sharing networks in a study and found that file sharing had no
negative effect on CD sales, and would possibly slightly improve the sales of top albums. 17
However, this work was challenged and Oberholzer-Gee and Strumpf were accused by
Professor Stan Liebowitz, of making multiple assumptions about the music industry "that are
just not correct."18 Professor Liebowitz work as is funded by the record industry, 19 has not
published in a peer-reviewed journal on any of these claims.
A study in 2010, funded by the International Chamber of Commerce and conducted by
independent Paris-based economics firm TERA, estimated that unlawful downloading of
music, film and software cost Europe's creative industries several billion in revenue each
year.20 Furthermore, the TERA study entitled Building a Digital Economy: The Importance
of Saving Jobs in the EU's Creative Industries calculated loss due to piracy reaching as
much as 1.2 million jobs and 240 billion in retail revenue by 2015 if the trend continued.
Researchers applied a substitution rate of ten percent to the volume of copyright
infringements per year. This rate corresponded to the number of units potentially traded if
unlawful file sharing were eliminated and did not occur.21 It is estimated that the common
piracy rates is one-quarter or more for popular software and operating systems, even in
countries and regions where a strong intellectual property enforcement system is introduced,
i.e. the US or the EU.22
3. Comparative Study of States Law And International Treaties

From the above discussion, it is apparent that both the UK and USA are under continuous
threat of music piracy and existing legal framework cannot reduce the threat. The rapid
development of internet technology sometimes goes beyond the touch of legal framework.
The existing legal framework sometimes fails to make balance for the protection of the
copyright holder and infringement of copyright. The infringement of copyright has got
various faces which causes a sustainable loss to the various sectors of the technology based
business holders.
Todays context is that people are also dependent on technology for entertainment i.e.
listening songs from CD, watching DVD movies, reading books etc. This phenomena
16
Glenn, David. Dispute Over the Economics of File Sharing Intensifies, Chronicle.com, July 17, 2008. See,
http://chronicle.com/article/Dispute-Over-the-Economics-of/989/
17
Felix Olberholzer-Gee and Koleman Strumpf, "The Effect of File Sharing on Record Sales: An Empirical
Analysis" Journal of Political Economy, 2007, 115(1):1-42;
18
Liebowitz, Stan J.. How Reliable is the Oberholzer-Gee and Strumpf Paper on File-Sharing?. SSRN 1014399.
Liebowitz, Stan J.. "The Key Instrument in the Oberholzer-Gee/Strumpf File-Sharing Paper is Defective"
(PDF). Retrieved 2008-06-13.
19
Supra, note 66
20
Mundell, Ian. Piracy in Europe costs $13.7 billion, Variety. March 18, 2010. See,
http://www.variety.com/article/VR1118016618?refCatId=1338. Dated: 10.09.2011
21
Geoffron, Patrice. Building a Digital Economy, iccwbo.org, March 17, 2010. See,
http://www.iccwbo.org/bascap/id35360/index.html. Dated: 10.09.2011
22
Delgado, Ray. Law professors examine ethical controversies of peer-to-peer file sharing. Stanford Report,
March 17, 2004.
sometimes go beyond the reach of the people who are not much solvent to satisfy their urge
for entertainment. To a large number of people, entertainment becomes much costly. In such a
situation, these people are tend to go for unauthorized use of the internet and the point is that
they do not think that this unauthorized use of the internet amount to violation of law.
The tendency of using internet for entertainment at a cheap rape in a law abiding citizens
society like UK and USA gets the face of epidemic.
3.1. Governing Legislations for United Kingdom

In 1709, we find the first statute on copyright "An Act for the Encouragement of Learning, by
vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the
Times therein mentioned" which is popularly known as Statute of Anne.
The experience of two centuries after the Statute of Anne of 1709, revealed that except book,
some works i.e. music were provided with the protection of copyright through case laws and
others works i.e. engravings, paintings, drawings and photographs wereprotected by the Acts
of Parliament.23
The Copyright Act 1911:
The Copyright Act 1911 introduced a consistent system by consolidating the various
branches of existing acts and abolished common law copyright.24The Act also declared that
publication is not the ultimate requirement for copyright rather the act of creation is sufficient
to get the protection of copyright.
The UK implemented the Berne Convention in the 1911 Act and in a dynamic way it
responded to technological developments by granting copyright on a new type of works not
included in the Berne Convention i.e. sound recordings.25 The Act provided that the literary,
dramatic and music works were under protection copyright and the copyright could be
infringed by the making of a film or other mechanical performance wherein the copyrighted
works were incorporated.26
Another development was brought in the copyright law by enacting the Copyright Act 1956.
This Act was passed for the purpose of harmonizing the national law with international
copyright law and technological developments. The main changes which it introduced were
the lengthening and simplifying of the copyright term, creating a uniform period of protection
of the lifetime of the author plus fifty years thereafter.
Copyright, Designs and Patents Act 1988 and The Copyright and Related Rights
Regulations 2003:
In United Kingdom, the present statute on the copyright law is Copyright, Designs and
Patents Act 1988 (hereinafter CDPA). In the said Act of 1988, the copyright is declared as
23
Torremans, Paul (2007). Copyright law: a handbook of contemporary research. Edward Elgar Publishing.
pp. 9. ISBN 1845424875, 9781845424879.
24
Coyle, Michael, "The History of Copyright", 23 April 2002.
25
MacQueen, Hector L.; Waelde, Charlotte; Graeme T., Laurie (2007). Contemporary Intellectual Property: law
and policy. Oxford University Press. pp. 38. ISBN 0199263396, 9780199263394.
26
Supra note 24.
property right in order to secure the rights of the original creator. This Act provides categories
in which the copyright subsists as well as the limitation where copyright does not subsist.
Section 1 of the CDPA, 1988 provides as follows:
Section 1: Copyright and copyright works.
1.-(1) Copyright is a property right which subsists in accordance with this
Part in the following descriptions of work(a) original literary, dramatic, musical or artistic works,
(b) sound recordings, films or broadcasts, and
(c) the typographical arrangement of published editions.
(2) In this Part "copyright work" means a work of any of those descriptions
in which copyright subsists.
(3) Copyright does not subsist in a work unless the requirements of this
Part with respect to qualification for copyright protection are met (see
section 153 and the provisions referred to there).
The CPDA, 1988 in section 2 confers the following rights which subsists in favour of the
author, director or commissioner of the work (whether he is the owner of the copyright or
not):
Right to be identified as author director,

right to object to derogatory treatment of work,
right to privacy of certain photographs and films
Section 2 of the CPDA, 1988 provides:

Section 2: Rights subsisting in copyright works.
2.(1) The owner of the copyright in a work of any description has the
exclusive right to do the acts specified in Chapter II as the acts restricted
by the copyright in a work of that description.
(2) In relation to certain descriptions of copyright work the following rights
conferred by Chapter IV (moral rights) subsist in favour of the author,
director or commissioner of the work, whether or not he is the owner of
the copyright(a) section 77 (right to be identified as author or director),
(b) section 80 (right to object to derogatory treatment of work), and
(c) section 85 (right to privacy of certain photographs and films).
Section 16 of the CPDA, 1988 provides some restricted works. All these restricted works can
only be carried out by the owner of the copyright. If any person carries out any of the
restricted act, he will be liable for the violation of copyright. This violation is declared as the
infringement of copyright. Section 16 of the Act, 1988 provides:
16.(1) The owner of the copyright in a work has, in accordance with the
following provisions of this Chapter, the exclusive right to do the following
acts in the United Kingdom(a) to copy the work (see section 17);
(b) to issue copies of the work to the public (see section 18);
(ba) to rent or lend the work to the public (see section 18A);
(c) to perform, show or play the work in public (see section 19);
(d) to communicate the work to the public (see section 20);
(e) to make an adaptation of the work or do any of the above in relation to
an adaptation (see section 21);
and those acts are referred to in this Part as the "acts restricted by the
copyright".
(2) Copyright in a work is infringed by a person who without the licence of
the copyright owner does, or authorises another to do, any of the acts
restricted by the copyright.
(3) References in this Part to the doing of an act restricted by the
copyright in a work are to the doing of it(a) in relation to the work as a whole or any substantial part of it, and
(b) either directly or indirectly;
and it is immaterial whether any intervening acts themselves infringe
copyright.
(4) This Chapter has effect subject to(a) the provisions of Chapter III (acts permitted in relation to copyright
works), and
(b) the provisions of Chapter VII (provisions with respect to copyright
licensing).
Thus, copyright as property right gives the owner of original work some substantial rights. If
any person violates any of the rights conferred, the owner has the right to go court.
The Copyright and Related Rights Regulations 2003 transpose Directive 2001/29/EC of
the European Parliament and of the Council of 22 May 2001 which is known as EU
copyright directive, to bring harmonization of certain aspects of copyright and related rights
in the information society 27 and into UK law. Therefore, its ultimate effects are to bring
modification into the Copyright, Designs and Patents Act 1988. The modifications are given
below.
a. Regulation 4 provides a new definition of "broadcast" in section 6 of the 1988 Act as:
an electronic transmission of visual images, sounds or other
information which
(a) is transmitted for simultaneous reception by members of the
public and is capable of being lawfully received by them, or
(b) is transmitted at a time determined solely by the person making
the transmission for presentation to members of the public,
The definition of broadcast does not include internet transmissions unless they are transmitted
simultaneously with a broadcast by other means, simultaneously with a live event or form
part of a service in which programmes are transmitted at specific times determined solely by
the person providing the service.
b.
Permitted acts
Neither copyright (except in a computer program or a database) nor performer's rights are
infringed by the simple act of transmitting the work between third parties over a network,
even if the process of transmission involves making temporary copies (reg. 8)
Fair dealing for the purposes of research or private study (s. 29 of the 1988 Act) is only
permitted if it is for a non-commercial purpose (reg. 9).28 A similar restriction is imposed on
permitted copying by librarians (ss. 38, 39, 43 of the 1988 Act; reg. 14) or archivists of
folksongs (s. 61 of the 1988 Act; reg. 16) for third parties. The observation or study of the
functioning of a computer program are removed from the remit of fair dealing (reg. 9) and
replaced by a statutory permission to study the functioning of the program while legally
performing any of the acts of loading, displaying, running, transmitting or storing the
program (reg. 15; new s. 50BA of the 1988 Act). Fair dealing for the purposes of criticism,
review or news reporting is only possible in works which have been made available to the
public (reg. 10).
The permitted use without a licence of copyright material for educational use (ss. 32, 35, 36
of the 1988 Act) is restricted to non-commercial purposes (regs. 1113). Regulation 18
removes the permission to use third parties (e.g. outside DJs) to play sound recordings for the
purposes of a non-commercial club or society (s. 67 of the 1988 Act).
The public showing or playing of broadcasts of music without a licence (s. 72 of the 1988
Act) is no longer permitted (these become "excluded sound recordings"), and the Secretary of
State is enabled to propose a licensing scheme covering such public showing or playing,
which may be compulsory (reg. 21).
27
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of
certain aspects of copyright and related rights in the information society, OJ no. L167 of 22 June 2001, p. 10,
corrected by OJ no. L006 of 10 January 2002, p. 70.
28
The restriction on private study "which is directly or indirectly for a commercial purpose" is found at
paragraph 15(3) of Schedule 1 to the Regulations, modifying s. 178 of the 1988 Act.
c. Rights management information

Regulation 25 creates a new property right in respect of electronic rights management
information. This right is held concurrently by
any person issuing copies of the work to the public or communicating the work to the
public; and
the owner of the copyright in the work, or his exclusive licensee; and
who have the same rights against an infringement of this right as the owner of copyright has
against infringement of copyright, including delivery up and seizure. The right is infringed
by
the person who knowingly removes electronic copyright management information

which is associated with a copy of a copyright work, or appears in connection with the
communication to the public of a copyright work;
the person who knowingly distributes or communicates to the public copies of a work
from which electronic rights management information has been removed.
d. Enforcement of copyright and performer's rights

The infringement of copyright or performer's rights by making a work available to the public
in the course of a business or to an extent which prejudicially affects the copyright owner
becomes a criminal offense (reg. 26; new s. 107(2A) of the 1988 Act).
A copyright holder may obtain an injunction (Scots law: interdict) against an internet service
provider (ISP) who has "actual knowledge" of another person using their service to infringe
copyright or a performer's right. In determining whether the ISP has actual knowledge of the
infringing use, the High Court (or Court of Session in Scotland) shall take into account all
matters which appear to be relevant, in particular whether the ISP has received notification
under regulation 6(1)(c) of the Electronic Commerce (EC Directive) Regulations 2002
No. 201329 (reg. 27; new ss. 97A, 191JA of the 1988 Act).
Regulation 28 extends the right to bring action for infringement of copyright to non-exclusive
licensees (it was previously limited to copyright owners and exclusive licensees) when the
infringement is directly connected to a prior licenced act by the licencee and the licence
expressly grants a right of action (new s. 101A of the 1998 Act). The non-exclusive licensee
shall have the same rights and remedies as the copyright owner would have in any action. The
right of the non-exclusive licensee to bring action is concommitant with that of the copyright
owner.
e. Duration of protection
Regulation 29 amends section 13A of the 1988 Act to take account of the new definition of
"communication to the public" so that the copyright in sound recordings expires:
29
at the end of the period of fifty years from the end of the calendar year in which the
recording is made, or
Electronic Commerce (EC Directive) Regulations 2002 No. 2013.
10
if during that period the recording is published, fifty years from the end of the
calendar year in which it is first published, or
if during that period the recording is not published but is made available to the public
by being played in public or communicated to the public, fifty years from the end of
the calendar year in which it is first so made available,
without considering any unauthorized acts.

However, being unsatisfied with the transposition of the directive, The European Commission
brought proceedings against the United Kingdom in the European Court of Justice.30
The Digital Economy Act 2010:
The Digital Economy Act 2010 (c. 24) has been enacted for the purpose of regulating digital
media. it received Royal Assent on 8 April 2010, and came into force on 8 June 2010 with the
exception of certain sections that came into force on 8 April; and certain other sections that
will be brought into force by statutory instrument. This Act is discussed under the following
headings:
Section 3 to 16
It is stated that the provision of this Act regarding the act of copyright infringement is
controversial.31 It provides a system of law which purpose is to first increase the ease of
tracking down and suing persistent infringers, and after a minimum of one year permits to
initiate "technical measures" to reduce the quality of, or potentially terminate, those
infringers' internet connections. It also provides a new ex-judicial process to deal appeals.32
Ofcom's code
The operational details of the copyright infringement are not provided in the Act, but left to a
series of regulatory codes produced by Ofcom. The Act defines only the utmost limits within
which these codes can work.
Appeals
The Act requires the provision of an independent appeals process, which contains the grounds
on the basis of which infringement reports are made. Cases are heard by a body set up by
Ofcom, or if a technical measure has been applied a First-tier Tribunal.33
Unlike in judicial appeals, the subscriber is innocent until proven guilty. The Act states that"an appeal on any grounds must be determined in favour of the subscriber unless the
copyright owner or internet service provider shows that-
30
Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Case C88/04), OJ no. C045 of 19 February 2005, p. 11.
31
"Digital Economy Bill on The Guardian". London: The Guardian.
32
"Digital Economy Act, section 10: Obligations to limit internet access". UK Government.
33
"Digital Economy Act, section 4: Obligation to provide infringement lists to copyright owners". UK
Government.
11
a) the apparent infringement was an infringement of copyright, and

b) the report relates to the subscribers IP address at the time of that infringement".
An appeal will also succeed if the subscriber can show that the rights holder or ISP violates
Ofcom's regulatory code in any way.
Obligations on ISPs and copyright holders
Ofcom is entrusted with power of enforcing ISPs' obligations under this Act. A fine of up to
250,000 can be levied on those in contravention; that limit can be raised by the Secretary of
State with Parliament's consent.34
Section 17 and 18 - Blocking Internet locations
With the consent of the Lord Chancellor, upper and lower houses of Parliament and a court of
law, as the Act provides, the Secretary can block access to a location on the Internet "from
which a substantial amount of material has been, is being or is likely to be made available in
infringement of copyright", or a location which "facilitates" such behaviour.35
In order to grant injunction, the court is required to consider:
Steps taken by the operator of the location to prevent infringement

Steps taken by the copyright owner to facilitate lawful access to the material
Any representations made by a Minister of the Crown
Whether the injunction would be likely to have a disproportionate effect on any
persons legitimate interests
The importance of freedom of expression
The Secretary of State is required to be satisfied before making the request that the location is
"having a serious adverse effect on businesses or consumers", that the injunction "is a
proportionate way to address that effect", and that "making the regulations would not
prejudice national security or the prevention or detection of crime".36
Other provisions
Other provisions in the Act include an amendment to the Copyright, Designs and Patents Act
1988 to increase the criminal liability for "making or dealing with infringing articles" and
"making, dealing with or using illicit recordings" to a maximum of 50,000, so long as it is
done during the course of a business.
Some specific criticisms of the Act are:
It removes the presumption of innocence

Lack of oversight of accusations made by rights holders, who are inclined to abuse
this power.
34
"Digital Economy Act, section 14: Enforcement of obligations". UK Government.

"Digital Economy Act, section 17: Power to make provision about injunctions preventing access to locations
on the internet". UK Government.
36
Ibid.
35
12
It insist little or no requirement as proof for accusations
Shared networks wireless access points in access points becoming impossible to

administer.37
Defective appeal processes
3.2. Country Context of Music Piracy in United Kingdom

Copyright as Property:
In the Anglo-American tradition copyright is regarded as property, as distinguished from the
droit d'auteur understanding of copyright.38 In Britain, copyright was initially considered as a
"chose in action", that is an intangible property, as opposed to tangible property.39
Copyright was referred in the Statute of Anne specifically in terms of literary property that
is limited in time. In 1773 Lord Gardenston commented in Hinton v. Donaldson(1773) that"the ordinary subjects of property are well known, and easily conceived... But property, when
applied to ideas, or literary and intellectual compositions, is perfectly new and surprising..."40
In the 19th century, the term intellectual property began to be used as an umbrella term for
patents, copyright and other laws.41 Courts, when strengthening copyright, have characterized
it as a type of property. Claiming copyright as property, Companies with leaders in the music
and movie industries seeking to "protect private property from being pillaged" and making
forceful assertions that copyright is absolute property right.42
According to Graham Dutfield and Uma Suthersanen copyright is now a "class of intangible
business assets", mostly owned by companies who function as "investor, employer,
distributor and marketer". While copyright was conceived as personal property awarded to
creators bur ironically creators now rarely own the rights in their works. 43 In fact, some
copyright laws, like US's ones include a "termination right", so artist can take back the rights
on their work 35 years after its first publication by a record company.44
37
Edwards, Lilian, "How the Digital Economy bill is trying to kill open Wi-Fi networks". The Guardian ,
London., Nov 30 2009.
38
Deazley, Ronan; Kretschmer, Martin & Bently, Lionel (2010). Privilege and Property: Essays on the History
of Copyright. Open Book Publishers. p. 347. ISBN 9781906924188.
39
Coyle,
Michael
(23
April
2002).
"The
History
of
Copyright".
See,
http://www.lawdit.co.uk/reading_room/room/view_article.asp?name=../articles/The%20History%20of
%20Copyright.htm , dated: 11.09.2011.
40
Brad, Sherman; Lionel Bently (1999). The making of modern intellectual property law: the British experience,
17601911. Cambridge University Press. p. 19. ISBN 9780521563635.
41
Brad, Sherman; Lionel Bently (1999). The making of modern intellectual property law: the British experience,
17601911. Cambridge University Press. p. 207. ISBN 9780521563635. See also " property as a common
descriptor of the field probably traces to the foundation of the World Intellectual Property Organization (WIPO)
by the United Nations." in Mark A. Lemley, Property, Intellectual Property, and Free Riding, Texas Law Review,
2005, Vol. 83:1031, page 1033, footnote 4.
42
Peter K, Yu (2007). Intellectual Property and Information Wealth: Copyright and related rights. Greenwood
Publishing Group. pp. 345346. ISBN 9780275988838.
43
Dutfield, Graham; Suthersanen, Uma (2008). Global intellectual property. Edward Elgar Publishing. pp. vi.
ISBN 9781847203649.
44
Artists like Springsteen and Dylan can start applying to regain copyrights of 1978 recordings
13
ZYX Music GmbH v King and others:45

Where a recording company represented to its distributor with regard to a copyright that
everything was in order and all necessary consents had been obtained, that representation did
not afford a defence to the distributor in an action for infringement of the copyright, since the
recording company had a strong self-interest to reassure the distributor and the representation
did not provide an excuse for the distributor running the risk as to whether what it was doing
was in fact an infringement. Moreover, in determining whether the distributor had reason to
believe that it was infringing the copyright, each assertion of infringement communicated to
it had to be evaluated in the light of all the other facts known or available to it. It followed, in
the instant case, on the evidence that the judge was right in the conclusions he reached and
the appeal would therefore be dismissed
Therefore, the liability of infringing copyright is also extended to all the stake holders who
are benefited from the business.
Two Reviews:
The Gowers Review of Intellectual Property was an independent review of UK intellectual
property (IP) focusing on UK copyright law that was published in December 2006. The
Review was published on 6 December 2006 as part of the Chancellor's annual pre-budget
report. The review submites that the UK's intellectual property system is fundamentally
strong but it made 54 recommendations for improvements.
The Hargreaves Review of Intellectual Property and Growth, or Digital Opportunity - A
review of Intellectual Property and Growth, was an independent review of the United
Kingdom's intellectual property (IP) system, focusing on UK copyright law. The review was
published in May 2011 by providing 10 recommendations to "ensure that the UK has an IP
framework best suited to supporting innovation and promoting economic growth in the digital
age".46
Survey Reports:
In 2006, a survey of National Consumer Council revealed that over half of British adults
infringe copyright law by copying music CDs, and 59% of them beleave that copying for
personal use is legal.47 In 2006 The Institute for Public Policy Research called for a "public
right to copy".48 After the publication of Gowers Review of Intellectual Property in
December 2006, a public consultation period was started by the government with the
proposals to legalise personal copying. Later on, in January 2008 the government proposed to
initiate changes to copyright law for legalising format shifting for personal use under some
limited circumstances.49 Though British Copyright law has been criticised for it high level of
strictness and out of date by consumer advocacy groups. But in 2009, Consumers
International conducted a study and examined copyright law of 16 countries revealed that the
45
ZYX Music GmbH v King and others [1997] 2 All ER 129, 130
46
See, http://www.ipo.gov.uk/ipreview.htm. Dated: 14.09.2011

"Shakeup of 'absurd' copyright law demanded". ZDNet reporting the National Consumer Council. 2006-05-11.
48
"Copying own CDs 'should be legal'". BBC News. 2006-10-29.
49
Ibid.
47
14
copyright law of UK is the least consumer-friendly from all 16 countries due to the
aforementioned illegality of copying purely for personal use.50
In 2011, after publication of the Hargreaves Review of Intellectual Property and Growth , the
government has started to take steps to change UK copyright law. Though many of the
reforms had been recommended in the 2006 Gowers Review of Intellectual Property but were
never implemented. However, one of the significant suggestions is to legalise the copying of
a CD to MP3 format (know as format shifting) for personal use.
Limitations under EU Law:
The UK does not comply with all the limitation as provided by the EU Directivs. But the two
recent reviews recommended for the compliance with the limitations as provided by the EU
Directives. However, provided limitations under the European Union law are:
reproductions made for private and non-commercial use if there is compensation for
right holders;
preservation of recordings of broadcasts in official archives;
reproductions of broadcasts by social, non-commercial institutions such as hospitals
and prisons, if there is compensation to right holders;
use for illustration for teaching or scientific research, to the extent justified by the
non-commercial purpose;
press reviews and news reporting;
uses for the purposes of public security or in administrative, parliamentary or judicial
proceedings;
uses of political speeches and extracts of public lectures, to the extent justified by
public information;
uses during religious or official celebrations;
incidental inclusion in another work;
use for the advertisement of the public exhibition or sale of art;
caricature, parody or pastiche;
No new limitations may come into force after 22 June 2001 except those in the above list
(Art. 5(3)(o), D. 2001/29/EC). Limitations may only be applied in "certain special cases
which do not conflict with a normal exploitation of the work or other subject-matter and do
not unreasonably prejudice the legitimate interests of the right holder"51
The approach which are taken by the UK recently might be called a realistic one. The primary
reason might be reducing economical lass but the consequence of it is the protection of
copyright. The ultimate point is that the technology runs faster than the process of initiating
new legal provision. From this perspective, it is expected that the approach of improving law
should be more exhaustive and comprehensive in nature.
3.3. Governing Legislations for United States of America
50
51
"UK 'has the worst copyright laws'". BBC News Online. 15 April 2009.
Art. 5(5), D. 2001/29/EC: also Art. 13 TRIPS, Art. 10 WCT and Art. 16 WPPT.
15
The Congress shall have Power ... To promote the Progress of Science and useful Arts, by
securing for limited Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries.52
In USA jurisdiction the copyright and patent clause, is Article I, Section 8, Clause 8 of the
United States Constitution, which confers the United States Congress to secure the exclusive
rights of the authors and investors. As a part of the federal law, the copyright law in the
United States is authorized by the U.S. Constitution.
The Copyright Act, 1976(contained in title 17 of the U.S. Code) governs copyrights. Under
section 102 of the Act, copyright protection extends to "original works of authorship fixed in
any tangible medium of expression, now known or later developed, from which they can be
perceived, reproduced, or otherwise communicated, either directly or with the aid of a
machine or device." Section 102 of the Act provides:
(a) Copyright protection subsists, in accordance with this title, in
original works of authorship fixed in any tangible medium of
expression, now known or later developed, from which they can be
perceived, reproduced, or otherwise communicated, either directly or
with the aid of a machine or device. Works of authorship include the
following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.53
(b) In no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system, method of
operation, concept, principle, or discovery, regardless of the form in
which it is described, explained, illustrated, or embodied in such work.
The significant part of the Copyright Act, 1976 is that the protection of the copyright extends
irrespective of notice of copyright in the original work. Thus, copyright subsists in
original works of authorship fixed in any tangible medium of expression
even if the original work does rest in the womb.
The Digital Millennium Copyright Act, 1998:
The United States enacted The Digital Millennium Copyright Act, 1998 (hereinafter DMCA)
for the purpose of implementing two 1996 treaties of the World Intellectual Property
Organization (WIPO). It introduces penal provision for production and dissemination of
technology, devices, or services intended to circumvent measures that control access to
copyrighted works (commonly known as digital rights management or DRM). In addition, the
DMCA heightens the penalties for copyright infringement on the Internet.
52
53
Article1, Section 8, Clause 8 of the United States Constitution.

This category was added in 1990
16
The principal innovation of the DMCA in the field of copyright is the exemption from direct
and indirect liability of internet service providers and other intermediaries54.
Exemptions:
The Communications Decency Act55 and the Digital Millennium Copyright Act 1998 (the
DMCA) granted certain exemptions to Internet Service Providers (ISP) under US legislation.
Section 230 of the Communications Decency Act provides ISPs with exemptions for hosting
third party defamatory speech that may give rise to liability, violations of rights or publicity
and other state law claims but it has no effect on intellectual property law.
The DMCA makes it illegal to produce or disseminate technology, devices or services
intended to circumvent measures, such as digital rights management (DRM) that control
access to copyrighted works. The crux of the DMCA's exemption means that ISPs are not
liable, directly or indirectly, for content liability.
In November 2009, the U.S. House of Representatives introduced the Secure Federal File
Sharing Act,[62] which prohibit the use of peer-to-peer file-sharing software by U.S.
government employees and contractors on computers used for federal government work.
3.4. Country Context of Music Piracy in United States of America
Theft and Copyright Infringement:
Though the term theft frequently is used by the copyright holders but in exact sense the term
theft does not embrace the notion of copyright infringement. The United States Supreme
Court in Dowling v. United States (1985)56 has made distinction between theft and copyright
infringement:
Since the statutorily defined property rights of a copyright holder have a character
distinct from the possessory interest of the owner of simple "goods, wares, [or]
merchandise," interference with copyright does not easily equate with theft, conversion,
or fraud. The infringer of a copyright does not assume physical control over the
copyright nor wholly deprive its owner of its use. Infringement implicates a more complex
set of property interests than does run-of-the-mill theft, conversion, or fraud.57
Case Law :
In Sony Corp. v. Universal Studios58, the Supreme Court found that Sony was not subject to
secondary copyright liability for its new product, Betamax because it was capable of
substantial non-infringing uses.
A&M Records v. Napster59, was the first peer-to-peer case where Napster was liable as a
secondary infringer. The court found that Napster was liable for its contribution for the
copyright infringement of its end-users because it "knowingly encourages and assists the
infringement of plaintiffs' copyrights." In order to analise the vicarious liability of Napster
54
Title II of the DMCA)

United States Code 47 USC 230(e)(2)
56
Dowling v. United States (1985), 473 U.S. 207.
57
Ibid, Pp. 214-218.
58
464 U.S. 417 (1984).
59
239 F.3d 1004 (9th Cir. 2001).
55
17
for copyright infringement, the court applied the standard whether Napster "has the right and
ability to supervise the infringing activity and also has a direct financial interest in such
activities." The court found positively that Napster did receive a financial benefit, and had the
right and ability to supervise the activity.
The next major peer-to-peer case was MGM v. Grokster60. In this case, the Supreme Court
found that Grokster is secondarily liable for inducing its user to infringe.
Effects Of Music Piracy On Industry
The U.S. economy loses $12.5 billion annually as an effect of global and U.S.-based music
piracy. These amount includes revenue and other related measures of economic performance.
Moreover, as a result of sound recording piracy, the U.S. economy loses 71,060 jobs.61
Initiative from Organizations:
In USA, RIAA has undertaken the duty to stop peer-to-peer file sharing by attacking the use
of 'shared files folders'. They claim that the making of files available for sharing on a P2P
network infringes on their right under 17 USC 106(3) "to distribute copies or phonorecords of
the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease,
or lending". But it is argued that the RIAA has failed to show evidence of copyright
violations. It has also failed to show the sale, transfer of ownership, rental, lease, or lending
of copyrighted works by file sharing programs. Though RIAA can manage proof of violation
of copyright law against individual but it cannot manage proof for making the whole
networks guilty.
After the Capitol v. Thomas trial, and before the decision setting the verdict aside, the Courts
in Atlantic v. Brennan, Elektra v. Barker, Atlantic v. Howell, and London-Sire v. Doe 1, had
rejected the RIAA's "making available" theory. But in Barker the judge opined that the other
theory which the RIAA might plead "offering to distribute for purposes of redistribution".
The lower courts are in a consensus that the 'making available' theory is incorrect. But the
question of whether merely 'making files available' over a peer-to-peer network is actionable
has yet to be decided on an appellate level. The "offer to distribute" theory as proffered by the
judge in Barker was rejected in Thomas where Judge Michael J. Davis agreed most closely
with the Howell, Brennan, and London-Sire.
In 2006 the RIAA filed its first major post-Grokster, secondary liability case, against
LimeWire in Arista Records LLC v. Lime Group LLC, where the United States District Court
for the Southern District of New York held that LimeWire induced copyright infringement
and granted a permanent injunction against LimeWire.
So, its not the state who comes forward to protect the right of its citizen and economic loss
rather an organization i.e. RIAA perform the duty. However, it is worth to be noted that total
legal frame work of the United States are more specific and attached with the copyright law.
The case laws are also comprehensively deal with this issue which necessarily enrich the
protection for copyright law in the area of music industry.
60
545 U.S. 913 (2005).

Siwek, Stephen E. The True Cost of Sound Recording Piracy to the U.S. Economy, Institute for Policy
Innovation: Policy Report #188 p.1-3.
61
18
3.5. International and Regional Treaties

The copyright laws get standard form through international and regional agreements, such as
The Berne Convention for the Protection of Literary and Artistic Works of 1886, Rome
Convention for the Protection of Performers, Producers of Phonograms and Broadcasting
Organisations of 1961, Universal Copyright Convention of 1952, WIPO Copyright
Treaty of 1996, WIPO Performances and Phonograms Treaty of 1996, The World Trade
Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS),
of 1994.
In the 1980s, it was considered by the European Community that copyright was the element
for the concept of creating single market. In support of the ultimate goal of the European
Union that is to create single market by providing necessary setup for free movement of
goods, services and free competition, a uniform system of protection of intellectual property
rights (which wrapped industrial property to copyright and other related rights), form the
basis of standard altitude of intellectual property law. From the perspective of harmonizing
copyright laws in its member states, the European Union has passed directives from 1991.
Necessarily all the directives have been implicated to cover intellectual productions based on
internet. The directives aimed to reduce obstacles to the free movement of goods and services
within the European Union, such as in rental rights, satellite broadcasting, copyright term,
and resale rights.62 Among the directives, the significant directives include the 1993
Copyright Duration Directive, Directive 2000/31/EC of the European Parliament and of the
Council of 8 June 2000 on certain legal aspects of information society services, in particular
electronic commerce, in the Internal Market ('Directive on electronic commerce' or ECommerce Directive),the 2001 InfoSoc Directive, also known as Copyright Directive, and
the 2004 Directive on the enforcement of intellectual property rights.
It is worthy to note that the effort to harmonise the copyright law in Europe can be traced
from date to the signature of the Berne Convention for the Protection of Literary and Artistic
Works on 9 September 1886: all European Union Member States are signatories of the Berne
Convention,63 and it is obligatory to comply with its disposition before accession. The first
major step taken by the European Economic Community regarding harmonization the
copyright laws came by enacting the directive on the legal protection of computer programs
in 1991 with the decision to apply common standard for the copyright protection of computer
programs.64 Moreover, Council Directive 93/98/EEC 65of 29 October 1993 is another
European Union directive made under the internal market provisions of the Treaty of Rome66
harmonising the term of protection of copyright and certain related rights. It was replaced by
Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006
on the term of protection of copyright and certain related rights. 67 However, a common term
of copyright protection, 70 years post mortem auctoris68 was agreed in 1993 as the directive
62
MacQueen, Hector L; Charlotte Waelde and Graeme T Laurie (2007). Contemporary Intellectual Property:
Law and Policy. Oxford University Press. p. 39. ISBN 9780199263394.
63
http://europa.eu/legislation_summaries/internal_market/businesses/intellectual_property/index_en.htm, dated:
15.09.2011.
64
91/250/EEC
65
93/98/EEC, 29 October 1993
66
Part 1, Article 2 of the Treaty establishing the European Economic Community, 1958
67
Annexure A, Part A of the Directive 2006/116/EC of the European Parliament and of the Council of 12
December 2006
68
From the death of the author
19
harmonizing the term of protection of copyright and certain related rights 69 which is also
accommodated in the Directive 2006/116/EC70.
The Berne Convention for the Protection of Literary and Artistic Works (Berne
Convention):
The Berne Convention for the Protection of Literary and Artistic Works, is an international
agreement regulating copyright, was first accepted in Berne, Switzerland in 1886.By and
large, it is known as the Berne Convention. The Berne Convention was revised in Paris in
1896 and in Berlin in 1908, completed in Berne in 1914, revised in Rome in 1928, in Brussels
in 1948, in Stockholm in 1967 and in Paris in 1971, and was amended in 1979. The present
version of the Convention is the Paris Act of 1971. The convention is regulated by the
World Intellectual Property Organization, (WIPO).
Though the UK signed it in 1887 but it took more than 100 years to implement the provisions
of the Convention. The Copyright, Designs and Patents Act of 1988 is the legislation which
introduced the theme and aim of the Berne Convention in the United Kingdom.
On March 1, 1989, "Berne Convention Implementation Act of 1988" came into force in the
United States and the United States became a party to the Berne Convention. The United
States declined to be a signatory of this convention for near about 100 years in order to avoid
major changes in its copyright law, specifically in case of moral rights, removal of the general
requirement for registration of the copyright works and abolition of mandatory copyright
notice. This declination led to the Universal Copyright Convention in 1952 which contained
the wishes of the United States. But after being a member of the Berne Convention, the
United States made the Universal Copyright Convention obsolete.
The authors who are the nationals of one of the signatories of the convention shall be
provided with the protection as granted by the Convention for their works. The same
protection is also extended where the works is published first or simultaneously in a signatory
state which is a member of the Union. One of the significant part of this convention is that the
provided protection is also available for an author who is not nationals of a signatory state but
has his habitual residence in that states. The non-national author will be regarded as a
national of the signatory state having the habitual residence.71
A member of the Berne Union is required to recognize the copyright of works of authors from
other members without discriminating with their nationals. Thus, a national from a member
of Berne Union is eligible to get the same protection of the national of other member states.72
This equal treatment policy ensure a firm establishment for securing the copyright among the
member states. The member states are also required to enact minimum but strong standard for
copyright law.
Article 5(2) of the Convention makes the copyright automatic. No formalities are required
under this Convention to protect the copyright of authors.
69
93/98/EEC
Article 1(1), Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006
71
Article 3, Berne Convention for the Protection of Literary and Artistic Works, 1886.
72
Articles 3 and 5, Berne Convention for the Protection of Literary and Artistic Works, 1886.
70
20
The Berne Convention states in article 7 that all works except photographic and
cinematographic shall be copyrighted for at least 50 years after the author's death, but
signatories are free to provide longer terms73. The European Union provides 70 years of term
with the 1993 Directive on harmonising the term of copyright protection 74 which is also
upheld in the Directive 2006/116/EC75.
The Berne Convention introduced the practice of fair use of copyrighted works in other
publications or broadcasts. The Agreed Statement of the parties to the WIPO Copyright
Treaty of 1996 states that: It is understood that the mere provision of physical facilities for
enabling or making a communication does not in itself amount to communication within the
meaning of this Treaty or the Berne Convention.76 This language may mean that Internet
service providers are not liable for the infringing communications of their users.
The World Intellectual Property Organization:
The World Intellectual Property Organisation (hereinafter WIPO) and the World Trade
Organisation (WTO) are the two governing bodies in the arena of intellectual property and
most of the international conventions are implemented by them. The World Intellectual
Property Organization (WIPO) was established, following the entry into force of the
Convention Establishing the World Intellectual Property Organization in 1967 which entered
into force on April 26, 1970.77 The mandate is to promote the protection of intellectual
property throughout the world78 and in order to do so, it emphasize on cooperation among
States and collaboration with other international organizations. The Organization is one of the
sixteen specialized agency and it became a specialized agency of the United Nations in 1974.
The United International Bureaux for the Protection of Intellectual Property (BIRPI) was the
predecessor of WIPO. Article 1 of The Agreement between the United Nations and the World
Intellectual Property Organization provides that WIPO is responsible"for promoting creative intellectual activity and for facilitating the transfer of
technology related to industrial property to the developing countries in order to
accelerate economic, social and cultural development, subject to the competence and
responsibilities of the United Nations and its organs, particularly the United Nations
Conference on Trade and Development, the United Nations Development Programme
and the United Nations Industrial Development Organization, as well as of the United
Nations Educational, Scientific and Cultural Organization and of other agencies
within the United Nations system."79
73
Article 7(6), Berne Convention for the Protection of Literary and Artistic Works, 1886
93/98/EEC, 29 October 1993
75
Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006
76
Travis, Hannibal "Opting Out of the Internet in the United States and the European Union: Copyright, Safe
Harbors, and International Law". Notre Dame Law Review, vol. 84, p. 384 (2008). (President and Trustees of
Notre Dame University in South Bend, Indiana)
77
http://www.wipo.int/about-wipo/en/faq.html, dated: 15.09.2011.
78
Article 3 of the Convention Establishing the World Intellectual Property Organization, 1967, which entered
into force on April 26, 1970
79
Article 1, The Agreement between the United Nations and the World Intellectual Property Organization. This
Agreement entered into effect on December 17, 1974. A Protocol incorporating the Agreement was signed by
Kurt Waldheim, Secretary-General of the United Nations, and Arpad Bogsch, Director General of the World
Intellectual Property Organization, on January 21, 1975.
74
21
The intellectual property is, as the WIPO refers, is creations of the mind and is of two
categories: 80
Industrial property includes patents for inventions, trademarks, industrial designs,

integrated circuits and geographical indications.
Copyright and related rights cover literary and artistic expressions (e.g. novels,
poems, plays, films, music, artistic works and architecture), and the rights of
performing artists in their performances, producers of phonograms in their recordings,
and broadcasters in their radio and television broadcasts.
Article 2(viii) of the WIPO Convention Establishing the World Intellectual Property
Organization provides that:

(viii) intellectual property shall include the rights relating to:
literary, artistic and scientific works,

performances of performing artists, phonograms, and broadcasts,
inventions in all fields of human endeavor,
scientific discoveries,
industrial designs,
trademarks, service marks, and commercial names and designations,
protection against unfair competition,
and all other rights resulting from intellectual activity in the industrial, scientific, literary or
artistic fields.81
Moreover, it is also recognized that intellectual property rights allow the creators or owners
of patents, trademarks or copyrighted works to benefit from their own work or investment
in a creation. These rights are outlined in Article 27 of the Universal Declaration of Human
Rights, which provides for the right to benefit from the protection of moral and material
interests resulting from authorship of any scientific, literary or artistic work.82
The Agreement On Trade-Related Aspects Of Intellectual Property Rights (TRIPS) And
World Trade Organization:
The Agreement On Trade-Related Aspects Of Intellectual Property Rights Agreement
(hereinafter TRIPS) states that, for the purposes of the Agreement, the term "intellectual
property" refers to all categories of intellectual property that are the subject of Sections 1
through 7 of Part II of the TRIPS Agreement. This agreement contains copyright and
neighboring rights, trademarks, geographical indications, industrial designs, patents, layoutdesigns (topographies) of integrated circuits, and undisclosed information.83
Specifically, sections of TRIPS required that its member states laws must be satisfied for
copyright rights, i.e. the rights of performers, producers of sound recordings and broadcasting
organizations; geographical indications, industrial designs, integrated circuit layout-designs;
patents; monopolies for the developers of new plant varieties; trademarks; trade dress; and
undisclosed or confidential information. TRIPS also specifies enforcement procedures,
80
http://www.wipo.int/about-wipo/en/faq.html, Dated: 15.09.2011.

Article 2(viii) of the Convention Establishing the World Intellectual Property Organization, 1967, which
entered into force on April 26, 1970
82
http://www.wipo.int/about-wipo/en/faq.html, Dated: 15.09.2011.
83
Article 1(2) of the Agreement On Trade-Related Aspects Of Intellectual Property Rights Agreement. This
Agreement (which is binding on all WTO Members) entered into force on January 1, 1995.
81
22
remedies, and dispute resolution procedures. The Agreement on Trade Related Aspects of
Intellectual Property Rights outlines its objectives as follows:
The protection and enforcement of intellectual property rights should
contribute to the promotion of technological innovation and to the transfer
and dissemination of technology, to the mutual advantage of producers
and users of technological knowledge and in a manner conducive to social
and economic welfare, and to a balance of rights and obligations.
TRIPS provide strong protection for intellectual property rights and all the member states are
required to do so. The following are the examples under TRIPS:
As per Articles 12 and 14, Copyright terms must extend to 50 years after the death of
the authors.
Copyright must not be based on formality and must be granted automatically.
Computer programs also embraces "literary works" under copyright law and receive
the same protection.
National exceptions to copyright i.e "fair use" in the United States, are limited by
the Berne three-step test.
Article 27 of the Agreement granted patents to all "fields of technology. But where
the public interests are in stake, the patnt will not be available. 84 Moreover, patent
rights are enforceable for at least 20 years.85
Limitation is to be imposed on exceptions to exclusive. In this case, it is provided that

there is no conflict between a normal exploitation of the work 86 and normal
exploitation of the patent 87 is not in conflict.
Third parties legitimate interests are tobe taken into account by patent rights.88
To ensure equal treatment, one member state may not treat its national with more
benefit then the national of the other member states of TRIPS under the principle of
national treatment. But some limited exceptions are provided in Art. 3 and 5 of the
TRIPS.
Article 9(1) of TRIPS provides :
Members shall comply with Articles 1 through 21 of the Berne Convention

(1971) and the
Appendix thereto. However, Members shall not have rights or obligations
under this Agreement in respect of the rights conferred under Article 6bis
of that Convention or of the rights derived there from.
It might be worthy to point out that in order to introduce a consistent and standard form of
copyright in various aspects, some provisions of the TRIPS on copyright were copied from
the Berne Convention for the Protection of Literary and Artistic Works and some provisions
84
Articles 27(2) and 27(3) of the Agreement On Trade-Related Aspects Of Intellectual Property Rights
Agreement. This Agreement (which is binding on all WTO Members) entered into force on January 1, 1995.
85
Article 33, ibid
86
Article 13, ibid
87
Article 30, ibid
88
Article 30, ibid
23
on trademark and patent provisions were modeled on the Paris Convention for the Protection
of Industrial Property.
Rome Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organisations of 1961:
Internationally it is the Rome Convention for the Protection of Performers, Producers of
Phonograms and Broadcasting Organisations of 1961(popularly known as Rome Convention)
recognized the copyright for the first time in sound recordings. Now music labels were
recognized as having a copyright interest in the recording itself, separately from the composer
and performer. This gave them standing to prosecute makers of unauthorized copies of their
tapes or records in other countries.89
The Rome Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organisations was accepted by members of BIRPI90 on October 26, 1961, the
predecessor to the World Intellectual Property Organization. For the first time, the
Convention extended the protection of copyright from the author of a work to the creators
and owners of particular, physical manifestations of intellectual property, such as
audiocassettes or DVDs. This Convention is the first response to new technologies i.e. tape
recorders that made the reproduction of sounds and images in easier and cheaper way unlike
before.
The earlier copyright laws including international treaties i.e. Berne Convention, 1886 was
the outcome of the intention to regulate the interest of the author or owner of the printed
materials. But the Rome Convention responded to meet the new circumstances of technology
by wrapping performers and producers of recordings under copyright:
2. Performers of various sectors i.e. actors, singers, musicians, dancers and other persons
who perform literary or artistic works are provided with the protection against certain
acts which are done without their consent or authorization. Such acts are: the
broadcasting of live performance and the communication to the public of their live
performance; the fixation of their live performance; when they do not give consent for
fixation, the reproduction of such a fixation or if the reproduction is made for
different purposes from the original.
3. Producers of phonograms have the right to control i.e. authorize or prohibit
reproduction of their phonograms directly or indirectly. Phonograms means, as per
the Rome Convention, any exclusively aural fixation of sounds of a performance or of
other sounds. Commercial publication of phonogram gives access to secondary uses
(i.e. broadcasting or communication to the public in any form). In this case, the user is
bound to pay a single equitable remuneration user to the performers, or to the
producers of phonograms, or to both. However, signatory States are free not to apply
this rule or to limit its application.
4. Some rights are provided in favour of the Broadcasting organizations to authorize or
to prohibit certain acts i.e. the rebroadcasting and fixation of their broadcasts; the
reproduction of such fixations; the communication to the public of their television
89
Baskerville, David ., Music business handbook and career guide , Edition 8, illustrated Publisher: Sage
Publications, 2006 ISBN1412904382, 9781412904384, pp. 542- 546
90
BIRPI is an acronym for Bureaux Internationaux Runis pour la Protection de la Proprit Intellectuelle
(French for "United International Bureaux for the Protection of Intellectual Property")
24
broadcasts if such communication is made in free places where public has entrance
without fee.
Nonetheless, the Rome Convention provides some exceptions in national laws:
private use;
use of short extract in connection with the reporting of current events;
ephemeral fixation by a broadcasting organization by means of its own facilities and
for its own broadcasts;
use solely for the purpose of teaching or scientific research;
in any other cases, where the national law provides exceptions to copyright in literary
and artistic works- except for compulsory licenses that would be incompatible with
the Berne Convention.
Moreover, the provisions on performers rights lost its application when his performance is
incorporated in a visual or audiovisual fixation with his consent.
The Convention for the Protection of Producers of Phonograms Against Unauthorized
Duplication of Their Phonograms, 1971:
This Convention is also known as the Geneva Phonograms Convention relating to copyright
protection for sound recordings. It is worthy to note that the publisher of a book could take
legal steps against unauthorized user irrespective of the nationality. But this protection was
unavailable in favour of the sound recordings. In order to give the copyright protection to
sound recordings, the Berne Convention for the Protection of Literary and Artistic Works 91,
Buenos Aires Convention92 and Universal Copyright Convention93 granted strong rights to
creators of printed or artistic content, and also to composers and performers of music, in most
first world countries.94
Universal Copyright Convention of 1952:
The Universal Copyright Convention (hereinafter UCC), adopted at Geneva on 6th September,
1952. Besides the Berne Convention, the UCC is the other principal international conventions
protecting copyright.
The UCC was the alternative convention for those states that were disagreed with the aspect
of the Berne convention but still wished to participate in some form of multilateral copyright
protection. The United Nations Educational, Scientific and Cultural Organization. Developed
the UCC for disagreeing states included developing countries and the Soviet Union, the
United States and most of Latin America. The United States and Latin America were already
members of a Pan-American copyright convention, which was weaker than the Berne
91
Berne Convention for the Protection of Literary and Artistic Works of 1886. The present version of the
Convention is the Paris Act of 1971.
92
The Buenos Aires Convention is signed at Buenos Aires on 1910-04-1. It provides for the mutual recognition
of copyrights where the work carries a notice containing a statement of reservation of rights (Art. 3).
93
The Universal Copyright Convention (or UCC), adopted at Geneva on 6th September, 1952. Since almost all
countries are either members or aspiring members of the World Trade Organization, and are thus conforming to
the Agreement on Trade-Related Aspects of Intellectual Property Rights Agreement, the UCC has lost
significance.
94
Baskerville, David ., Music business handbook and career guide , Edition 8, illustrated Publisher: Sage
Publications, 2006 ISBN1412904382, 9781412904384, pp. 542- 546.
25
Convention. The significant point is that the signatory states of the Berne Convention also
became party to the UCC in order to protect their copyright in non-Berne convention states.
The copyright laws in United States only required copyright protection for a fixed, renewable
term, and required that in order for a work to be copyrighted it must contain a copyright
notice and be registered at the Copyright Office. These characteristics of the US copyright
laws did not correspond to the Berne Convention as this convention provided copyright
protection for a single term based on the life of the author, and did not require registration or
copyright notice. Therefore, if the United States would be a signatory state, it had to bring
several major modification and changes to its copyright laws. For that reason the United
States was declined to do so and was not willing to be a member of the UCC. The UCC thus
gave permission to those states which had a system of protection similar to the United States
for fixed terms at the time of signature to retain them. With this change, the United States
became willing to a signatory states to the Berne convention, and brought the required
changes to its national copyright law. In 1989, the United States became a signatory party to
the Berne Convention as a result of the Berne Convention Implementation Act of 1988.
The successful journey of the UCC ultimately created a threat to the successful existence of
the Berne Convention as the signatory sates of the Berne Convention felt encourage to leave
the Berne Convention and adopt the UCC instead. In order to prevent this practice, the UCC
included a clause stating that parties which were also Berne Convention parties need not
apply the provisions of the Convention to any former Berne Convention state which
renounced the Berne Convention after 1951. Thus any state which adopts the Berne
Convention is penalised if it then decides to renounce it and use the UCC protections instead,
since its copyrights might no longer exist in Berne Convention states.
Eventually, the UCC has lost significance because of all the countries become the member of
the Agreement on Trade-Related Aspects of Intellectual Property Rights Agreement by being
either members or aspiring members of the World Trade Organization.
WIPO Copyright Treaty of 1996:
The World Intellectual Property Organization Copyright Treaty,1996 is popularly known as
the WIPO Copyright Treaty. This treaty is an international treaty on copyright law and
adopted by the member states of the World Intellectual Property Organization (WIPO).
It is evident that all the laws on copyright were not sufficient to meet the circumstances
aroused due to the development of information technology. For the last 2 decades, the
information technology developed with high rate which is sometimes figured out as beyond
imagination. In order to fill up the gaps between the law and circumstances as raised due to
the ultimate development of information technology, the WIPO Copying Treaty provides
additional protections for copyright.
There have been a variety of criticisms of this treaty, including that it is overbroad (for
example in its prohibition of circumvention of technical protection measures, even where
such circumvention is used in the pursuit of legal and fair use rights) and that it applies a 'one
size fits all' standard to all signatory countries despite widely differing stages of economic
development and knowledge industry.
26
Article 4 of the Treaty provides that Computer programs are protected as literary works
within the meaning of Article 2 of the Berne Convention. Such protection applies to
computer programs, whatever may be the mode or form of their expression. Article 5
provides that Compilations of data or other material, in any form, which by reason of the
selection or arrangement of their contents constitute intellectual creations, are protected as
such. This protection does not extend to the data or the material itself and is without prejudice
to any copyright subsisting in the data or material contained in the compilation.
Articles 6 to 8 provide the authors of works with exclusive control over their rental and
distribution which they may not have under the Berne Convention. The article 11 also
prohibits circumvention of technological measures for the protection of works. The article 12
of the Treaty impose obligation upon the contracting parties to provide adequate and effective
legal remedies in certain circumstances. Article 12 runs as follows:
(1) Contracting Parties shall provide adequate and effective legal
remedies against any person knowingly performing any of the following
acts knowing, or with respect to civil remedies having reasonable
grounds to know, that it will induce, enable, facilitate or conceal an
infringement of any right covered by this Treaty or the Berne
Convention:
(i) to remove or alter any electronic rights management information
without authority;
(ii) to distribute, import for distribution, broadcast or communicate to
the public, without authority, works or copies of works knowing that
electronic rights management information has been removed or altered
without authority.
(2) As used in this Article, rights management information means
information which identifies the work, the author of the work, the
owner of any right in the work, or information about the terms and
conditions of use of the work, and any numbers or codes that represent
such information, when any of these items of information is attached to
a copy of a work or appears in connection with the communication of a
work to the public
The United States implemented the WIPO Copyright Treaty is implemented by the Digital
Millennium Copyright Act (DMCA). The Council of the European Union approved the treaty
on behalf of the European Community by Decision 2000/278/EC of 16 March 2000.
European Union Directives which largely cover the subject matter of the treaty are: Directive
91/250/EC creating copyright protection for software, Directive 96/9/EC on copyright
protection for databases and Directive 2001/29/EC prohibiting devices for circumventing
"technical protection measures" such as digital rights management.
However, the WIPO Copyright Treaty made no reference to copyright term extension beyond
the existing terms of the Berne Convention. This was because the United States Congress
passed both the Digital Millennium Copyright Act and Sonny Bono Copyright Term
Extension Act, which enacts copyright term extension during the same week and used the
same method using voice vote to make it less likely that the news media would report on the
27
bills. In addition, the European Union adopted its own copyright term extension around the
same time.95
WIPO Performances and Phonograms Treaty of 1996:
The WIPO Performances and Phonograms Treaty (or WPPT) was adopted in Geneva on
December on December 20, 1996. It is an international treaty signed by the member states of
the World Intellectual Property Organization. The Digital Millennium Copyright Act is the
United States's implementation of the treaty (see WIPO Copyright and Performances and
Phonograms Treaties Implementation Act).
In the frame of introducing the General Agreement on Tariffs and Trade (GATT), the
negotiation was continues from 1986 to 1993 which resulted in the TRIPS agreement in April
1994. Around the Same time the International Bureau of WIPO held its first session of the
Committee of experts on a possible Protocol of the Berne Convention . Instead of protocol,
the Committee thought for a special agreement. After two years, a committee of experts
started work on the possible instrument for the Protection of the rights of performers and
producers of phonograms. As a result, the WPPT was adopted in the Diplomatic Conference,
1996 . The identifiable risk of the shifting international law making in the field of authors
right from WIPO to GATT (later WTO) and the ultimate need to prepare the road to
minimum standard of protection of the future TRIPS agreement were the reasons behind the
WPPT.96 Moreover, introducing an effective and uniform system for protecting the rights of
the performers and producers of phonograms was also the objective for the adoption of
WPPT.
Some modernized provisions have been introduced in the WPPT i.e. the definition of
performers.97 Formalities are required under this treaty. The WPPT ensure minimum rights of
performers in a large scale than those under the Rome Convention and the TRIPs Agreement.
The extended remuneration for secondary uses has ensured both performers' and phonogram
producers' rights and has been clarified in respect of online publication of phonograms. The
minimum term of protection, which was 20 year in the Rome Convention98, has been raised to
50 years in Article 17 of the WPPT.
Thus, it can be said that the following rights are protected under various international and
regional treaties:
95
right of reproduction for authors, performers, producers of phonograms and films and
broadcasting organizations;99
right of communication to the public for authors, performers, producers of

phonograms and films and broadcasting organisations;100
http://en.wikipedia.org/wiki/WIPO_Copyright_Treaty. Dated: 15.09.11.
96
Reinbothe, Jorg and von Lewinski, Silke Von., The WIPO Treaties 1996: ready to come into force, European
Intellectual Property Review, 2002.
97
ibid
98
Article 20 of the Rome Convention.
99
Art. 7, D. 92/100/EEC, replaced by Art. 2, D. 2001/29/EC: also Art. 14 TRIPS, Arts. 7 & 11 WPPT
100
Art. 3, D. 2001/29/EC: also Art. 10 TRIPS, Art. 8 WCT and Arts. 6, 10 & 14 WPPT
28
right of distribution for authors101 and for performers, producers of phonograms and
films and broadcasting organisations;102
right of fixation for performers and broadcasting organisations;103
right of rental and/or lending for authors, performers, producers of phonograms and
films,104 with an associated right of equitable remuneration for lending and/or rental
for authors and performers;105
right of broadcasting for performers, producers of phonograms and broadcasting

organizations;106
right of communication to the public by satellite for authors, performers, producers of

phonograms and broadcasting organisations .107
The quest for establishing a effective and harmonize system in the arena of copyright is
reflected through the development of the copyright law in both national and international
level. The effort for effective and harmonize system becomes harder as it requires to wrap the
broader notion of copyright law in this era of rapid development of technology. The rapid
development of technology required the law more comprehensive and the international law
community is always under the demand of making the system more inclusive. Moreover,
technology based commercial activities increases the risk of crime and it is evident that
manner of committing crime in the technological world gets it dynamic faces. From this
perspective, the national and international laws on copyright covers the guiding scheme of the
copyrights. The music piracy, as particular form of copyright infringement, is also regulated
by the schemes which are introduced for protecting the copyright in different height of the
commercial and social transactions. The development as evident from the Berne Convention
to the WPPT indicates that the copyright law must be more comprehensive and dynamic in
order to meet the circumstances and demand of the technological development.
4. Remedies
4.1. The United States
When a third party copies one of the copyright protected works, the copyright holder can sue
that third party. The remedies available to the victim are injunctions on future copying.
money damages to compensate and, in some cases punish the defendant. Under federal
copyright law, the plaintiff may recover both the actual damages and the defendant's profits to
the extent those profits were not already taken into account in computing the actual damages.
101
Art. 4, D. 2001/29/EC.
Art. 9, D. 92/100/EEC: also Art. 10 TRIPS, Art. 6 WCT and Arts. 8 & 12 WPPT.
103
Art. 6, D. 92/100/EEC: also Art. 14 TRIPS and Art. 6 WPPT.
104
Art. 2, D. 92/100/EEC: also Art. 11 TRIPS, Art. 7 WCT and Arts. 9 & 13 WPPT. See also, Warner Brothers
Inc. and Metronome Video ApS v Erik Viuff Christiansen (Case C-158/86), ECR (1988) 02605. Metronome
Musik GmbH v Musik Point Hokamp GmbH (Case C-200/96), Foreningen af danske Videogramdistributrer,
acting for Egmont Film A/S and Others v Laserdisken (Case C-61/97).
105
Art. 4, D. 92/100/EEC.
106
Art. 8, D. 92/100/EEC: also Art. 6 WPPT.
107
Arts. 2, 4, D. 93/83/EEC.
102
29
Damages are determined on a case-by-case basis as the calculation of damage c are highly
fact intensive and.108
Currently, statutory damages range from $500 to $20,000 per act of infringement. If the court
finds that the defendant acted willfully, the court may increase the damages to a maximum of
$100,000 per act of infringement. Finally, the court can also order the defendent to pay the
plaintiff's attorney's fees and court costs.109
4.2. The United Kingdom
Individual litigation
The Copyright, Designs and Patents Act 1988 (CDPA) provides for suing the individuals for
copyright infringement which is used by the UK music industry to combat piracy and illegal
file-sharing.
Digital Economy Act, 2010:

Under section 3 of the Act, once a copyright holder has collected evidences of infringement,
it can contact the corresponding ISP. The ISP must then:
Notify users that they have been infringing copyright.

Retain information on the number of times the users have infringed and been subject
to these notifications.
Provide copyright owners with lists of those who have been accused of infringing at
least three times in one year.
The Secretary of State, in the light of the assessment of Ofcom, can order the ISPs to impose
technical sanctions on the accused users. Such sanctions include slowing down a user's
internet connection or cutting it off completely.
Section 17 of the Act provides that
The Secretary of State may by regulations make provision about the
granting by a court of a blocking injunction in respect of a location on the
internet which the court is satisfied has been, is being or is likely to be
used for or in connection with an activity that infringes copyright.
As per the section 17 of the Act this can only be granted if the infringement is having a
serious adverse effect on business or consumers, and if blocking the website is a
proportionate means of dealing with the problem.
5. Identified problem areas to focus

108
109
http://www.copyright.gov/title17/92chap5.html
Ibid.
30
In this era of high level technology, the problems in enforcing copyright laws can not be
numbered. From the above discussion, it is apparent that all the laws on copyright do not lack
for definition in determining the infringement. But the point is the infringement is not
properly remedied. In case of piracy, more specifically, in the arena of music piracy for its
large scale business, the available remedies are not available in satisfactory level. The remedy
should cover not only the damage but also the protection and prevention from future
infringement.
The economical reason plays an important role behind the scenario of music piracy. Most of
the people who download songs or other contents from the internet are those who are not
solvent to buy the original piece of work.
It is worth to point out that human psychology also play a significant role for not buying the
original piece of work. Most of the music or other contents downloader believe that
downloading from internet is not a crime and harmful for any one. Even, the criminologists
are in hypothetical situation to ascertain the nature of the act of downloading.
It is to be pointed out that the future protection from infringement cannot be ensured without
the help of the states. The state, with its large administration and judicial establishment can
ensure the protection. But it is also evident that the state faces some unavoidable limitation to
provide protection.
The state mechanism cannot pursue the rapid development of the technology. This
disappointment creates spaces for the infringement of copyright. A citizen cannot be liable for
his previous act when the act is not considered as crime.
Moreover, world wide web based system makes the situation worse as it ensure the
unlimited movement of digital contents throughout the world. Though international and
regional treaties are signed and adopted by a large number of states but the requirement of
implementing those treaties in domestic level creates some practical bar for applying the
protection of copyright. An effective and harmonized system is required for the protection of
the copyright laws and other corresponding laws. But it is also true that every state has its
own distinct system. The economical condition, technological development, social structure,
geographical condition and political situation of every state play important role for this
purpose. Maximum benefit for maximum number of state would the approach which is not
apparent in the international level of copyright law.
It is also appeared that monitoring system at international level is weak than expected. It is
true that contents in internet are boundary free and the weak monitoring system at
international level give the devil user of internet amply chances to infringe copyright law.
6. Recommendations
International politics plays an important role for the protection of international consensus on
specific issues. All the states do not suffer from the same point at same level. For this reason,
protection at domestic level should get utmost priority to protest infringement of copyright.
31
Though in this WWW based world, the use of internet cannot be restraint but prevention is
better than cure and charity begins at home. Lawful alternatives for the consumers to access
to the internet content should be considered with utmost importance.
The music industry in country like UK and USA should arrange its own security by
developing technology. The CD of any artist which is published from any renowned company
should have integrated security system for the purpose of avoiding piracy. In this case, the
CD manufacturer companies as well as software developer companies can play important
role.
Public awareness and social advertising against music piracy is an effective way to prevent
music piracy. But in doing so the people of the society is to be provided with a better option
than downloading music files.
7. Conclusion
For the last two decades the world has been experienced the rapid development of internet
based society. Business, entertainment, social networking and other activities of human being
are now dependent on technology. Day by Day the internet technology continue its journey
higher and it is appeared that no one know the pick to touch. In order to keep balance in this
situation, the corresponding law on internet using should more dynamic and modern. Proper
enforcement of law not only depends on the law enforcing agencies but also depends on how
much the law is comprehensive, effective and appropriate under the existing situation. Thus,
number of laws is not the vital point to consider rather the nature of the law which is crux of
protecting the trend of music piracy.
32

Enforcing Copyright in The Digital Age Age-The Problem of Music Piracy in The UK and US

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Enforcing Copyright in The Digital Age Age-The Problem of Music Piracy in The UK and US

Uploaded by

Copyright:

Available Formats

Enforcing Copyright In The Digital Age: The Problem Of Music Piracy In The UK And US

Enforcing Copyright In The Digital Age: The Problem Of Music

Advocate, Supreme Court of Bangladesh.

2.1. Music Piracy

a. Physical music piracy embraces the process of making or distribution of

b. Counterfeits includes unauthorized recording which is done without required

c. Bootlegs imply the unauthorized recordings and duplication of live or

Gelesthorpe. Loraine, Copyright infringement: A Criminological Perspective in Copyright and Piracy: An

http://portal.unesco.org/culture/en/ev.phpURL_ID=39412&URL_DO=DO_TOPIC&URL_SECTION=201.html, Dated: 15.09.2011.

though it is not sold or use in other unauthorized way. Unauthorized internet

2.2. File Sharing

http://www.soc.duke.edu/~s142tm01/piracyfaq.html. Dated; 14.09.2011.

3. Comparative Study of States Law And International Treaties

3.1. Governing Legislations for United Kingdom

Right to be identified as author director,

right to privacy of certain photographs and films

Section 2 of the CPDA, 1988 provides:

c. Rights management information

the person who knowingly removes electronic copyright management information

d. Enforcement of copyright and performer's rights

Electronic Commerce (EC Directive) Regulations 2002 No. 2013.

without considering any unauthorized acts.

a) the apparent infringement was an infringement of copyright, and

Steps taken by the operator of the location to prevent infringement

It removes the presumption of innocence

"Digital Economy Act, section 14: Enforcement of obligations". UK Government.

It insist little or no requirement as proof for accusations

Shared networks wireless access points in access points becoming impossible to

Defective appeal processes

3.2. Country Context of Music Piracy in United Kingdom

ZYX Music GmbH v King and others:45

See, http://www.ipo.gov.uk/ipreview.htm. Dated: 14.09.2011

3.3. Governing Legislations for United States of America

Article1, Section 8, Clause 8 of the United States Constitution.

Title II of the DMCA)

545 U.S. 913 (2005).

3.5. International and Regional Treaties

Industrial property includes patents for inventions, trademarks, industrial designs,

Organization provides that:

literary, artistic and scientific works,

http://www.wipo.int/about-wipo/en/faq.html, Dated: 15.09.2011.

Limitation is to be imposed on exceptions to exclusive. In this case, it is provided that

Members shall comply with Articles 1 through 21 of the Berne Convention

right of communication to the public for authors, performers, producers of

http://en.wikipedia.org/wiki/WIPO_Copyright_Treaty. Dated: 15.09.11.

right of fixation for performers and broadcasting organisations;103

right of broadcasting for performers, producers of phonograms and broadcasting

right of communication to the public by satellite for authors, performers, producers of

Digital Economy Act, 2010:

Notify users that they have been infringing copyright.

5. Identified problem areas to focus

You might also like