The Race Against Technology Will Never Cease

There is incongruence between technology, which by its nature is changeable, dynamic and agile; and the law, which strives for certainty, stability and due process. Intellectual Property law, particularly in the fast paced software industry, often finds itself stretched in ways that are hard to predict over even relatively short time periods. Legislation, as a result, often struggles to keep pace with technology – a fact that software pirates are acutely aware of or neatly take advantage of.

The Digital Economy Act (DEA) is just one such example. This piece of legislation was hurried through in 2010 at the end of the last administration, but isn’t likely to be enacted until 2015, having been beset by delays and legal challenges. The issue is that by the time it is finally implemented, technology could have moved on so far making the Act impotent.

From its inception, the DEA had a great deal of promise, and was warmly welcomed by rights holders. Once implemented, the DEA would require Internet Service Providers (ISPs) to send warning letters to alleged illegal distributors and keep lists of repeat infringers. Historically, ISPs have taken a hands-off approach, and argued that piracy was not their problem, so the DEA represented a significant development in the fight against copyright infringement.

However, continued delays, setbacks and challenges may have diluted the timely relevance of key aspects of the legislation to such an extent that it could be viewed by many, as something of a White Elephant.

Earlier this month, the UK High Court instructed certain ISPs to block access to The Pirate Bay. In response, the file-sharing site stated that users should turn to Virtual Private Network (VPN) services, which allow users to conceal their internet activities, to evade law-enforcers and maintain anonymity.

It is reported that the publicity brought by the ruling has driven an additional 12 million visitors to the site, potentially exacerbating the issue by driving it underground. Unfortunately this law, as it stands, is not designed to crack down on the use of such technology.

As this recent example demonstrates, pirates are increasingly ingenious and as soon as one mode of transmission is banned, they move on to another one. As a result, legislators find themselves in a constant state of catch-up. In the face of fast-changing technology, it’s important that we endow our laws with enough flexibility to at least go some way to future proof legislation. As technology will advance at an ever more rapid rate, this problem will only remain.

Government will also have to demonstrate a willingness to challenge software piracy effectively. By delaying the implementation of the DEA, the government is only serving to degrade the public perception, that is of digital product as ‘free’.

Out of date legislation is only one of the problems that government needs to tackle. A further issue is effective enforcement as ultimately, it does not matter how good your legislation is as if you cannot readily enforce the rules then they might as well not exist.

Downloading can be relatively simple and cheap, giving little indication of the time and money put into developing digital products. Arguably, this problem is compounded by the general inaction of the courts and the authorities, which sadly appear to share the same apathy as the general population. As long as people may without deterrence illicitly obtain digital product, this is unlikely to change.

The existing legislative process can be unduly long and complicated – so much so that many businesses, and enforcement agencies, are put off.

FAST is urging the government to implement Directive 2004/48/EC of the European Parliament and Council on the Enforcement of Intellectual Property Rights, with a particular focus on Article 4. This would grant FAST the right in civil law to take legal action to protect its members in its own name. The introduction of a small claims court for copyright cases – similar to the existing debt recovery system – would speed up the judicial process and significantly reduce the cost of pursuing a claim.

Software piracy remains a big issue in the UK, with analyst house, IDC, estimating that software piracy deprives the UK economy of £5.4 billion annually and around 13,000 high-tech jobs. Further, it is estimated that 8 per cent of GDP is predicated on industries that depend upon the strength of their intellectual property; and that the UK IP framework is indirectly responsible for 2.8 million jobs. With so much at stake, it is vital that the UK takes a comprehensive approach to tackling the problem of piracy.

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Educated at The University of Kent and The College of Law, Julian Heathcote Hobbins is The Federation's General Counsel. Prior to joining FAST in July 2001, Julian qualified as a solicitor and has experience in intellectual property law including working at City law firm Theodore Goddard (now Addleshaw Goddard) on Anti Copying In Design (ACID) matters. Julian has a particular interest in the legislation relating to software, e-mail and Internet law (including Open Source and data leakage) with recent focus centered around Representative Rights under Article 4 of the Enforcement Directive and preparing numerous responses to Government on relevant consultations, for example, under the seminal Gowers Review of Intellectual Property.