Confusing The Captain With The Cabin Boy: The Dangers Posed To Reform Of Cyber Piracy Regulation By The Misrepresented Interface Between Society, Policy Makers & The Entertainment Industries

• Author: Michael Filby
• Position: University of Hertfordshire
• Pages: 154-184

Michael Filby¹

Page 154

The primary hypothesis is that public perception of the law relating to cyber piracy is out of step with the contemporary de facto legal position. The definition of cyber piracy is summarised, and the issues relating to confusion surrounding the boundaries or simply considering the myriad categories of piracy as a single topic are discussed. The current law as per the Copyright, Designs and Patents Act 1988 as amended is also outlined for the purpose of evaluating the hypothesis, and the border of cyber piracy in relation to the entertainment industries (concerning film, television and software) is set for the rationale of the analysis.

Further exploration takes place through two case studies which concentrate on DVD piracy. The first regards a marketing campaign which has been mounted by the entertainment industries purporting to, inter alia, raise consumer awareness of cyber piracy law in order to adjust public attitude to the practice toward the negative, and to lobby for tougher IP regulation. It is argued that the campaign falls foul of the dangers of failing to fully identify piracy, and fails to communicate an accurate interpretation of the legal position to the intended audience.

The second case study examines an editorial concerning film piracy in an influential consumer movie magazine. It is submitted that the summation of piracy law and representation of the regulation in general is heavily flawed, and it is questioned whether the bias behind this journalistic failure could be as a result of the influence of lobbies such as those found in the first case study.

The findings of an exploratory study carried out in December 2006 are then presented. In addition to uncovering opportunities for further research, the results indicate that the public are, in many situations, under the impression that criminal sanctions regulating piracy are wider reaching than the current legislation presently provides. It is submitted that the results of the study lend credibility to the notion that influences such as those recognised in the case studies have effectively misrepresented the law to consumers. The danger posed by the possibility that policy makers may be as vulnerable as consumers and perhaps even the press to well-funded and wide-ranging lobbying is considered.

It is concluded that the representation of intellectual property regulation with regards to piracy must be counterbalanced if a truly objective middle-ground can be maintained when considering approaches to reform.

Main Text

"...there is nothing more difficult to execute, nor more dubious of success, nor more dangerous to administer, than to introduce new political orders. For the one who introduces them has as his enemies all those who profit from the old order, and he has only lukewarm defenders in all those who might profit from the new order. This lukewarmness partly arises from fear of the adversaries who have the law on their side, and partly from the incredulity of men, who do not truly believe in new things unless they have actually had personal experience of them. Therefore, it happens that whenever those who are enemies have the chance to attack, they do so with a partisan zeal, whereas those others defend hesitantly, so that they...run the risk of grave danger.²"

Page 155

1. 0 Introduction

It has become almost customary to point out within the introductory section of any paper regarding intellectual property regulation the extent of the complexities involved in the discussion to come. While warning potential readers that what is to follow is going to be a challenging symposium may have the effect of dissuasion as much as persuasion, it is also indicative of the perception of the area in sum. The regulation of intellectual property (IP) in what has become known as the digital age is linked into many facets of contemporary society, drawing together the reluctant bedfellows of the realms of law, politics, economics and public policy, amongst others, into what can be imagined as a tangled ball of string.

Naturally, the warning is often qualified with a promise to unravel the string to help the reader to understand the issues which lie entangled within. Despite these promises, the current state of IP regulation is still languishing in an unkempt state which lies well beyond the reach of those whom it affects the most - society.

The difficulty in making sense of IP regulation lies partially in the overlying representative interface to which it is most often approached. Despite the convolution of the current state of affairs at its core, observers of the surface are pigeonholed, voluntarily or otherwise, into distinct camps. On the one side stands the colossal Goliath in the form of the groups of industries who are collectively concerned in the business of producing IP in the form of information, whether these are music producers, film distributors or software publishers³. Standing in the shadow of the colossus is David, the wandering consumer who desires access to the information produced by the industries without being encumbered by bothersome IP restrictions. The question of whether David can bring Goliath to his knees with a well utilised slingshot is one that is in itself fundamentally flawed in that it enjoys neither relation nor relevance to the underbelly of IP regulation, although the idea of one being brought to the same level as the other is amusingly compelling.

Nevertheless, these two apparent camps have been given their own pet names. Anyone arguing on behalf of the mighty entertainment industries have been dubbed, quite possibly with a hint of irreverence, as "Copyright Warriors"⁴. The consumers who go so far as to defy the industries by flouting IP regulations have been handed the collective title of "pirates".

While it is one of the fundamental arguments of this paper that this branding is a gross oversimplification of the underlying problems of IP regulation, it is important to recognise the significance this apparent polarisation has had on those it affects the most - society. Although it is acknowledged in many quarters that the problems of regulating a web of ever-expanding networks, replete with the countless streams of information which are perpetually transported around it, are significant, the representation of this journey is not always one which accurately reflects the reality of those issues.

A superficial evaluation of the ongoing debates raging over IP regulation might see such elements as the reporting of these arguments dismissed as little more than journalistic reportage appeasing the shallow appetites of areas of society, but a closer examination of the depiction of the debate reveals roots which extend far deeper into the underlying tangle of the current status and development of IP regulation than might be expected. Indeed, a reader of the recent Gowers Review of Intellectual Property observing a reference to persons who "seek to prevent others from using a patented invention without permission" being branded "trolls"⁵, may very well note the influence of what is being presented as an interface for society is having on the policy makers, perhaps even with the result of confusion⁶.

It is the purpose of this paper to first pierce through this veil of ambiguity and erroneous simplification by presenting a definition of cyber piracy and the spectrum of piracy which exists⁷, which in itself will reveal several flaws in debates concerning the area. The hypothesis that the status of the IP regulation conundrum, particularly with regard to the law regulating the area, has been misrepresented to the extent that a danger of wide-reaching confusion has been perpetuated among consumers and, potentially, policy makers, will then be explored. This will be achieved through the critical analysis of two case studies, namely the "Piracy Is A Crime" (PIAC) campaign funded by areas of the entertainment industries with the stated objective of raising awareness of IP regulation among consumers⁸, and an allegedly journalistic report presented in a magazine, of which approximately 175,000 copies were sold⁹, as an unbiased and accurate account of a wide range of issues relating to piracy¹⁰. Page 156 Finally, the results of an exploratory study carried out with the purpose of testing the hypothesis will be presented¹¹, along with an analysis of the results interpreted in this light¹².

2. 0 Defining Piracy: The Captain & The Cabin Boy

The application of the idiom "pirate" to certain categories of persons who infringe IP rights and restrictions has become a convenient umbrella term generally encapsulating those who infringe particular terms of the Copyright, Designs and Patents Act 1988 (CDPA) which seems to fire the imaginations of observers, be worn almost proudly as a badge of honour much like "ASBOs"¹³ have been among a different sub-set of society, and yet be wielded as an accusatory term by the supporters of the existing IP regulations. This sometimes overexcited use has inevitably led to ambiguities as to whom actually lies under the umbrella, sometimes resulting in a failure to acknowledge that piracy covers a number of acts which range distinctly in how they are managed by the law. Although piracy can be extended to cover such disparate groups as those unlawfully transmitting radio broadcasts to mass importers of fake designer goods, this paper is concerned with cyber piracy in relation to the...