File-sharing: a research opportunity for Higher Education?

A question asked by @Ottua at the 1709 Big Copyright Debate organised by @Ipkat earlier this week got me thinking: how can we know for sure how much damage really IS being done to the creative industries by file-sharing?

This question comes up time and again. Surveys churn out various statistics, which show that file-sharing is extremely damaging to the industry which is suffering hugely as a result. Yet often these surveys are found to be commissioned by the industries themselves, which leaves the more sceptical among us wondering if this is really the true picture. Of course, it doesn’t help when we notice some obvious anomales, such as when Avatar managed to be both number one at the box office AND the number one most downloaded film, or the figures which show that alleged pirates are also the largest purchasers of legitimate content.

Let it be clear: I am not advocating piracy or wilful infringement. I am a firm believer that piracy (definition: making a large-scale profit from copies of the original with no remuneration to the rights holder) is a crime, akin to counterfeiting, which is purely for an individual’s or company’s financial gain and motivated by making money at someone else’s expense. However, file-sharing (definition: the upload and download of creative content to freely share for no commercial gain) is a civil infringement, because you are breaching the communication to the public right under copyright. This says (effectively) that when you upload a work which is not your own and without permission from the rights owner, you are infringing copyright. Yet it still happens. Why?

I think that from an early age we learn to share (some also argue that we learn to copy, but I see this as more by way of mimicking rather than copying work per se). Everyone has differing tastes and interests, making each of us a unique individual. And when we encounter others who have similar tastes and interests, our natural enthusiasm for those interests leads us to talking about them and sharing information. And when our interests tend to be, say, a mutual enjoyment of 80s rock music (yes really), we are likely to ask ‘have you heard of Band XYZ?’ They say no, and our immediate response is ‘oh you must! I’ll lend you the CD’. How many of us have lost many of our most treasured possessions this way? (My dad @davecg69 foolishly lent his Beatles 'Let it Be' vinyl with the booklet to a friend and never got it back, regretting it ever since!). So when the technology becomes available in the form of recording to cassette / CD, instead of saying ‘I’ll lend you the CD’, we say ‘I’ll make you a copy’. And the thought of copyright infringement does not even cross our minds.

This has given me food for thought: if file-sharing is damaging, what about all the other ways in which we share content where the rights owner receives little or, more often, no recompense? And for which there is no defence in UK copyright law? What about when one person buys a DVD and a group of flatmates all sit down after a meal one night to watch it? What about when a parent puts on a Disney films for 20 kids at a sleepover or party (usually so they can have an hour’s rest!)? And how many of us read, watch, or listen to something, and when finished with it list it on eBay to sell to someone else? Or give it to a charity shop?

How many of these constitute ‘lost sales’? When you consider the UK alone, almost 62 million people, have been doing these sorts of activities for years, without a private use exception in copyright, how damaging has that been? Yes it is true that you can reach the world through the medium of the Internet, and so instead of just a few people to share with, you can now share with thousands, if not millions. But that is not to say that everyone on the Internet is file-sharing copyright content. And on the flip side: how many people are using other sites where content can be legitimately acquired and paid for? Such as iTunes, or LoveFilm? Perhaps rather than focusing on the damage that file-sharing is having on the creative economy, industries should be comparing those statistics with the growth and use of legitimate downloads. I have little doubt that these sites have steadily increased in use over the past few years as more and more desirable content has become available to purchase.

As I said at the debate, more research needs to be done into this area, and not just industry-led research either, but strong verified independent research. And who better to lead on this than universities? Only the other week I was delighted to read about the Arts & Humanities Research Council’s funding opportunity for a Centre for Copyright and New Business Models in the Creative Economy. This is a first-class opportunity for universities to do some highly valuable research which will benefit the creative economy, looking at (I hope) all the issues I’ve outlined above and more. Research could measure the impact of the recession (people refraining from spend on items for pleasure or luxury, such as film/cinema and books) on the creative economy, contextualising it within the economic climate, as that undoubtedly has had an effect. But universities could also collaborate with businesses and the technology industry to experiment with new and innovative business models, measuring their impact and effectiveness and assessing long-term benefits.

I would urge Higher Education institutions to communicate and collaborate with one another on this project, which has the potential to revolutionise the way that research is being done in this area. A £5 million funding grant is not a figure you should ignore. Don't let this opportunity pass you by - get involved!

Dealing with the Digital Economy Act: some practical steps for the HE sector

As the consultation period for Ofcom’s Code of Practice for implementing the Digital Economy Act draws to a close, the HE sector must be reminded of their duty to respond in light of the impact this Code may have on academic establishments. Unlike France’s Hadopi law, which deliberately excludes universities, the Digital Economy Act (controversially) applies to all sectors, and it would be remiss of the HE sector not to consider the proposals set out in Ofcom’s Code very seriously.

Looking at some of the key aspects of the Code, it is the commercial ISPs with the largest share of the market who are the primary target. However, should Ofcom perceive consumer migration away from these ISPs as a result of prescribed measures taken to reduce copyright infringement, it intends to reduce the threshold, thereby making the Code applicable to ISPs with a small to medium number of subscribers. Should this happen, there is currently no attempt made in the Code to reflect the issues which public sector entities such as universities would encounter if they were forced to conform to the Code. As such it is best to take a ‘worst-case scenario’ approach to the Code and look at the greatest impact it may have on HE institutions (HEIs), taking into account the complexities of the HE sector.

Key issues that HEIs face at this stage:

• No definition of what an HEI is in relation to the Code
• Difficult to identify and track infringers
• External companies based on university campus – classed as subscribers or ISPs?
• Potentially heavy costs involved in tackling infringement, discovery and appeals
• HEIs assume quasi-judicial role
• HEIs more likely to be prosecuted than individuals
• Data held on infringers must be compliant with the Data Protection Act
• Defences for appeal are limited -“reasonable steps” are undefined
  

Practical Measures to take:

• Lobby Ofcom for clarification of definitions (ISP / Subscriber / Comms Provider)
• Keep abreast of legislative changes and new drafts
• Watch for developments in JANET’s Acceptable Use Policy
• Promote legitimate download and streaming services as alternative to file-sharing
• Review current network infrastructure and policies
• Implement robust notice and takedown procedures
• Set up a clear route for contacting the HEI about copyright infringement
• Review data logs in light of possible Subject Access Requests
• Review current monitoring and discovery practices
• Implement robust regulations for the use of IT systems
• Embed a culture of corporate compliance for all users

Guidance and Implementation

One of the biggest issues is defining a university in light of the Digital Economy Act and subsequently the Ofcom Code. Most universities offer connections to JANET for their staff and students and therefore consider themselves ‘communications providers ‘. Effective policies and procedures are already in place around this model and are enforced as part of student regulations and staff contracts. Any interference with the current system at this stage by a government body such as Ofcom would disrupt network operation and have severe consequences for administration and research progress, as well as increasing cost and impacting staff time.

That said, it would be unwise to sit back and do nothing. HEIs should at the very least review their current policies and procedures, tallying up the number of copyright infringement notices that they have received over the course of each academic year and measuring how effectively these have been dealt with. Annual trends of copyright infringement notifications and subsequent action taken to remedy them should be analysed and key areas identified for improvement if needs be. Data Protection Officers should be consulted about the potential compliance issues of data logs and a contingency plan drawn up to ensure accuracy of reporting. In addition, JISC have developed a series of further practical suggestions to ensure compliance with the Digital Economy Act.

Conclusion

So what else can HEIs do? As many HEIs as possible should respond to Ofcom’s consultation (closing 30th July), drawing attention to the issues outlined above. The HE sector must not assume that just because all the big players are involved (JISC, Consumer Focus, JANET) it should sit back and let them solely bear the burden of response. HEIs are in the business of education, so they more than anyone are best placed to impute good practice in terms of copyright compliance to their network users. Respond now and defend your position.