Regulation of Online Infringement of Copyright - No Risk of Penalty for Infringers, No Avenue for Protection for Copyright Owners

Copyright holders have long argued that they are suffering substantial commercial damage as a result of unauthorised sharing or distribution of their copyright works. There has been a considerable lobby by rights holders worldwide, which has resulted in a host of new legislation as well as court cases. Except for one or two headline cases in the United States this lobby has failed to make any impact on the problem. Until the Digital Economy Act 2010, because of technology and the existing law, copyright owners have had limited legal protection against the infringement of their rights. The Digital Economy Act attempted to redress some of that balance but failed to provide copyright owners with the ability to achieve recompense for damage sustained or to protect, in a timely manner, their rights so as to avoid commercial damage. Technology and the internet have and are developing at a pace far faster than can be accommodated by the law and/or the existing business models of copyright owners. Internet users, even the non-technically illiterate, have a view, which some would consider lawless, that promotes and encourages the abuse of the traditional property rights expressed in copyright. Existing laws of privacy, telecommunications and common law decisions regarding third party responsibility have meant that those sharing copyright works can easily circumvent and defeat any attempt by copyright owners to enforce their rights. The Digital Economy Act was meant to redress the balance; however, the demands of privacy and proportionality have removed all possibility of rightsholders taking legal action. The proposed method of implementation also means that the limited courses of action provided under the Digital Economy Act are beyond the financial means of all but the largest rightsholder organisations. This paper will examine the technological issues, existing related laws, and cases which have a direct impact on the application of those laws, and the changes, both legal and technological, which are due to come into effect during 2011/12. Consideration will be given to the different methods of unauthorised distribution of copyright material using the internet. This will be related to technological developments and avoidance or ‘cloaking’ techniques. The paper will then analyse recent international and English case law which has highlighted the impossibility of rightsholders controlling and stopping such unauthorised distribution. In addition, the paper will consider the impact that the acts of ‘rogue elements’ of the internet community and the legal profession have had in frustrating the enforcement of a rights holder’s property rights. Finally, the paper will consider if it is possible, even with the implementation of IPV6, for the conflict of protection of interests in privacy and property rights to be resolved by legislative means or if the rights holders need to examine and pursue an alternate business model.