THE EMPIRE STRIKES BACK THRICE: MUSIC FILE SHARING, THE DIGITAL ECONOMY BILL AND THE NEW JEDI KNIGHTS OF THE OLD INTERNET

Today, I beg to transcend beyond the realms of Nigeria, into the far far away empire of the United Kingdom (UK) where the Digital Economy Bill has recently been given the force of law. This Bill was borne out of the Digital Britain Report which set out the Government’s ambition to secure UK’s position as one of the world’s leading digital knowledge economies. This report included over 80 recommendations, and the Digital Economy Bill delivers on those that require primary legislation.

Amongst other issues, the Bill is an attempt to tackle copyright infringement through music file-sharing. The Bill proposes the notorious “three strikes and you’re out” policy for individuals suspected of engaging in illegal music file sharing, this requires ISPs to temporarily disconnect the internet connection of such individuals after repeat warnings. The Bill also requires that ISPs disclose personal information of subscribers who are suspected of engaging in this illegal music file sharing. Failure of the ISPs to comply with this requirement will be met with the payment of a fine.

This new role of ISPs as “Jedi Knights” of the internet has come under serious criticism from various quarters. For me, I just have 2 main issues with these proposals:-

• In instances where subscribers use music file sharing technology on their networks, ISPs merely act as conduits pursuant to article 12 of the electronic commerce directive (eCD, which is the EU Directive regulating the liabilities of ISP). The proposed legislation in requiring ISPs to take action against an alleged unlawful file sharer would be offending Art. 15 of the eCD which provides a “no obligation to monitor” content. The main idea for enacting the “No general obligation” created under this provision was the concern that the effect of Arts 12-14 of the eCD (which deals with specific instances such as conduit, caching and hosting where ISPs would be exempt from liability) would be seriously weakened if ISPs were required to monitor content on their platforms. Also, the effectiveness of technical controls employed in the disconnection of music file shares is also called into question when the serious infringers would resort to encryption devices in order to evade detection within an anonymous file sharing environment thus making it difficult to identify them.

• Copyright versus Privacy Right: Does copyright overshadow all other rights in UK legal other? This question becomes relevant when taking into consideration the requirement that ISPs disclose personal information concerning users of music file sharing technologies on their networks in order to prosecute copyright infringement claims. Art. 5 (1) of EU’s electronic privacy directive provides:

Member States shall ensure the confidentiality of communications and the related traffic data by means of a public communications network and publicly available electronic communications services, through national legislation…

This provision reinforces the protection of the confidentiality of communications from interception or even disclosure to any party. This guarantee given to the protection of personal data has also been upheld by the European Court of Justice in the context of civil proceedings for the enforcement of copyright in the case of Promusicae v. Telefónica de España SAU, the question before the court was whether the EC Directives require member states impose obligations to disclose personal data in order to protect copyright works. The court held inter alia:

In the light of all the foregoing, the answer to the national court’s question must be that Directives 2000/31, 2001/29, 2004/48 and 2002/58 do not require the Member States to lay down, in a situation such as that in the main proceedings, an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings…

This pronouncement coming from the ECJ no doubts put paid to the protection of the personal information of users of electronic communications services.

Me thinks that rather for the UK government to legislate on the illegality of music file sharing, its use should have been converted to a revenue generating business model where all the parties involved benefit. For the owners of the musical works, they are duly compensated and for the music file sharers (like me), we would be enjoying unfettered access to our favorite songs. Whether the authorities in UK or the music industry likes it or not, music file sharing is here to stay.

For music file sharers in the UK, it seems that (as Master Yoda of Star Wars will likely say too) “file sharing is the path to disconnection”. Music file-sharing leads illegal downloading and uploading, illegal downloading and uploading leads to copyright infringement. Copyright infringement leads to disconnection.


PS: Last Saturday in Lagos, the New Nigerian singing band, Jukebox, was declared winner of the 2010 edition of Nigerian music talent hunt show, Star Quest. The six-man band, made up of Eghosa Frank (drummer), Joshua Itietie (lead guitar), Agunpopo Josephine Olamide (vocalist), Wilson Emeka (vocalist), Epanty Gregory (keyboardist) and Asindi Sam (bass guitar) beat the last bands standing to grab the N7.5 recording contract, brand new band bus, N3.6M cash prize and a home in Lagos. Jukebox earned a total of 19873 votes while the other two bands Sapphire Blue and Ace Vibes got 15480 and 11719 respectively. The band now goes on to join D‘ Accord (2006), D‘ Jewels, (2007), Diamonds (2008), and The Pulse (2009) in the Star Quest ‘hall’ of fame.