It is ironic that at the same time The Copyright Bill 1999 has been finally introduced into the Oireachtas, the entire concept of copyright protection has come under attack. Copyright confers on the owners of a "work" - such as a film or an item of software - the right to control how that work is reproduced, published, performed, broadcast or adapted. The film, music and publishing industries are determined defenders of their rights and have waged long and ultimately successful campaigns in their defence. But in the past couple of years these industries have seen a new threat emerge online. At present most attention is focused on the MP3 audio standard, which allows musical tracks to be swiftly downloaded from the Internet. Initially such tracks were stored on a computer's hard drive and listened to on a computer's speakers. A host of new MP3-related Internet sites have sprung up, some providing information and software to enable users to download music and others providing music downloads.
Some of the MP3 tracks available for download may be provided with the consent of the copyright owner, but the US music industry has alleged: "losses to digital Internet piracy will soon surpass the $300 million that is allegedly lost annually to other more traditional forms of piracy."
The development of devices which allowed users to transfer MP3 files from their computers' hard-drives, and to pocket devices similar to personal stereos, forced the industry to act. In Recording Industry Association of American (RIAA) -v- Diamond Multi-media Systems Inc., the industry applied to the US federal courts for an injunction to prevent the manufacture and distribution of one such device called the Rio. This application was initially unsuccessful and also failed on appeal. It is likely that a similar application in the Irish courts would also fail.
This high-profile failure has given rise to claims that the Internet will kill the music business. In Britain, The Guardian newspaper has suggested: "It's no longer a case of whether MP3 is killing pop music. The music industry may already be dead. It just hasn't stopped twitching yet."
Claims have also been made that ultimately the whole concept of copyright protection may become redundant. To quote one US lawyer: "The protection of copyright is still there, but one question nags: is it worth anything? The answer - which turns recording execs pale - is: `Probably not'." The music industry is not alone. It would seem that it is only a matter of time before it becomes commonplace to download films from the Internet. For those with a lot of patience, an enormous hard-drive and a high-capacity Internet connection, several films are already available online in files that are several hundred megabytes in size.
There is nothing new about the nature of this particular controversy. The creation of a novel technology will frequently result in claims that it either needs new forms of legal protection or has rendered old forms of protection obsolete. In the 1980s, fears that computer chip designs might be "stolen" led to the passing of the Semi-conductor Chip Protection Act in the US and similar legislation in Ireland and elsewhere. In reality, circuit designs such as those on chips were always protected by existing copyright law (see Anacon Corp -v- Environmental Research).
In the early 1990s, controversy raged over the registration of domain names. Fortunately, this controversy did not result in a legislative response, particularly as existing trademark law appears to have been adequate to deal with any problems (see Marks & Spencer -v- One in a Million).
The current hysteria about copyright law may be viewed in the same way. Although new technologies may alter how music, films and other works are distributed, the protection of copyright law will still apply to them. Computer programs are also protected by copyright. For years computer programs have been distributed over the Internet, yet the software industry appears to be in robust good health. This industry has encountered problems similar to those which are now threatening the music business. For example, in Zeidenburg -v- Pro-CD an individual bought a copy of a database on CD-Rom and then proceeded to sell the contents over the Internet until the owners of the database got a court order to prevent him.
The reality is that the courts will react swiftly to prevent the sale of pirated goods of any type over the Internet. Perhaps the concern should not be that copyright law will prove to be ineffective at protecting the interests of copyright owners, but rather that the law will be invoked to prevent the emergence of online competition with existing methods of distributing content. The music industry is working on standards for alternative formats to MP3 which would allow its copyrights to be protected. One major difficulty with these standards, however, is that by monitoring where and when a track is played they may infringe upon the privacy of users.
This is not to say that the Internet will not change how the music business works. Internet distribution is very cheap, if not actually free. This may make it more difficult for the existing industry to control performers once they become stars, or to determine which performers will become stars in the first place. Disputes between performers and their management have given rise to a long trail of litigation, from opera singers (Lumley -v- Wagner) to George Michael who brought the most prominent of recent cases (Panayiotou -v- Sony). The Internet may have the effect of shifting power towards the creators of content as opposed to those who distribute it. Yet these changes are as likely to strengthen the music industry as to weaken it.
Denis Kelleher, a barrister and co-author with Karen Murray BL of Information Technology Law in Ireland and Information Technology Law in the European Union, can be contacted via www.ncirl.ie/itlaw