Teenage clicks
OUT-LAW Radio, 27/08/2009
Feargal Sharkey, former Undertone turned industry bigwig,
discusses a recent report on the real downloading habits of the
UK's youth and just how many concessions the industry should make
to downloaders.
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The following is the text spoken by OUT-LAW journalist Matthew
Magee.
Hello and welcome to OUT-LAW Radio, where we hope to keep you up
to date with the latest news and the most fascinating features from
the world of technology law.
My name is Matthew Magee, and this week we talk to former
Undertones singer and now music industry head honcho Feargal
Sharkey about young people, music and the internet and where the
music industry should go from here.
But first, here are some of the top stories from OUT-LAW.COM,
where you can read breaking technology law news throughout the
week.
Government file-sharer cut off plan could be overshadowed by
European ruling
and
Finance ad rules govern keyword choice, warn regulators
A Government plan to cut off suspected file-sharers from the
internet might be rendered irrelevant by a ruling from Europe's top
court, an intellectual property expert has said.
The Government has just published proposals to disconnect
suspected file-sharers from the internet without court oversight.
But a case involving eBay and L'Oreal may allow record labels to
force internet service providers (ISPs) to police traffic more
heavily without Government involvement.
In the case the European Court of Justice has been asked whether
a UK court is entitled to grant an injunction against an
intermediary to prevent the sale of illegal materials, even when
the intermediary is entirely innocent.
Iain Connor, an intellectual property expert with Pinsent
Masons, the law firm behind OUT-LAW, said that this could have
implications for ISPs.
Iain Connor : If the ECJ says that an injunction
can be granted in a case like this to prevent the sale of
counterfeit cosmetics it may be that the proposal on the table will
fall away because people will just apply for injunctions against
ISPs to prevent file-sharing.
Advertisers' choice of keywords to trigger search ads for
financial products and services is regulated in the same way as the
content of the ads, UK regulators have warned. They also cautioned
firms against sponsoring rivals' names as keywords.
The Consumer Regulator the Office of Fair Trading and City
watchdog the Financial Services Authority have said that their
rules on advertising control not just the words used in the ads but
the words used to trigger them.
The guidance applies to advertisers of financial services and
products. The guidance stressed that sometimes the misleading words
whose association is bought in advertising systems such as Google's
AdWords could be the names of competitors.
The FSA conducted research in 2007 which uncovered widespread
breaches of advertising rules in financial services ads. It found
that a quarter of the ads it checked were difficult for consumers
to use or failed to include key information.
Those were some of the top stories from this week's OUT-LAW
News.
This has been the week when the seemingly unthinkable happened.
The UK Government has shunned every opportunity to date to advocate
cutting off the internet access of illegal file-sharers. It didn't
appear as a plan in the Gowers Review of Intellectual Property in
2006, nor in the draft or full Digital Britain Report this
year.
But suddenly, within weeks of Business Chief Peter Mandelson
dining with record industry bigwig David Geffen, all that has been
turned on its head. The Government has shoehorned a u-turn into its
Digital Britain Consultation, proposing for the first time that the
households of file-sharers be disconnected from the internet, and
without any oversight from the courts.
Mandelson's involvement has made it as much about politics as
policy and the outcome for the consultation has never looked
muddier.
There is no doubt it is a radical solution bypassing courts and
existing laws that make file-sharing illegal is a major step but
then, industry argues, it is a major problem. Just look at UK
Music's recent report.
The umbrella body for the commercial music industry, whose
members represent record labels, songwriters, managers and players,
two weeks ago produced an in-depth study into how young people use
music.
The body's Chief Executive is Feargal Sharkey, the ex-Undertones
singer who says that some of the results about the scale of illegal
file-sharing were, frankly, heart-stopping.
Feargal Sharkey : Yes it is true that when you
sit and look at the fact that by way of example I think it was 55
or 56% of young people this time around, which was pretty much the
same as last year, said that they are actually swapping their whole
hard drives. Does that kind of make you stop for a second and miss
a heartbeat; absolutely. Because that is not kind of a bunch of
kids round the back of the bike shed in 1970s swopping cassettes of
last night's Top 40. These are young people going: here is my
entire library of music which on average now is about 8,000 files
on a hard drive, and I am going to give you the whole lot of it. So
I can understand for a lot of people in the music industry that
would kind of make you sit up and pay attention but the reality is
how do we proceed forward and how do we work with that and how do
we ensure that we try and work with these young people to develop
the infix.
The study talked to nearly 2,000 people aged fourteen to twenty
four about music. It found that just as many young people engaged
in file-sharing this year as last. Industry messages about the
evils of file-sharing had only partially got through, said
Sharkey.
Feargal Sharkey : Whatever the industry has been
doing for the last ten years do these young people not understand
that there is this philosophical thing called copyright? Yes they
do. They have got the message. What they are also telling us is
that they do not care. They are going to carry on doing what
they are doing.
So what to do? Obviously one solution is the Government's one
cut off file-sharers. Sharkey won't be drawn on what UK Music
thinks of that though - the body is having a board meeting in
September to consider its response.
One striking aspect of the research was how it uncovered all the
multiplying ways that young people find to share music – they don't
just download files online any more, they swap hard drives, send
them privately over Skype or Bluetooth them to each other, keeping
off the policed public internet.
When Sharkey talks about solutions, he veers away from the
physical, technical interventions Mandelson has backed and towards
more rounded, philosophical proposals.
Feargal Sharkey : We clearly cannot carry on
what we were doing previously because it is not delivering the
result perhaps we would like. So what do we need to do? To
re-think, re-plan and re- strategise and get out there and try and
help young people and try and develop something more of an empathy
and a sympathy and supportive approach to creators and to copyright
by way of example; to perhaps involve more young people in the act
of creativity and then the individual act of creativity because as
it happens through some other research that has been done, the one
thing that young people care passionately about is, should they do
something creative themselves that they are identified as the owner
and the originator and the creator of that piece of work.
Now, do we start trying to develop and work with young people on
that basis and using that as a vehicle to let them independently
develop their own judgments and their own morality and a more
sensitive approach to looking at other people’s creativity and
other people’s time effort, talent and ability.
He stresses that his organisation is not a barrier to progress
when it comes to adapting to how young people use music.
Feargal Sharkey : We are very happy to accept
this idea that young people out there will copy their CD’s onto
their IPod and onto their hard drives and onto their mobile phones.
I am very happy to concede that idea and to move forward on that
basis. So I think we are trying very hard to be practical and
pragmatic and I think you just do have to occasionally acknowledge
there are some things you can work with and some things life
changes we all have to grapple with this thing called evolution and
we all have to be very sensitive to that.
UK Music's current policy is that they do not back taking civil
court actions against individual file-sharers. This, says Sharkey,
would be unproductive but ultimately he comes down to the same
question as other industry leaders If you educate users, if you ask
them nicely, if you implore them to stop, what do you do if they
refuse?
Feargal Sharkey : Bearing in mind and I am
saying this hypothetically on the basis that let us say for example
you develop a graduated response that has got some 95 steps. So you
have now asked somebody 95 times very politely and very gently;
‘can you please stop doing that’ and 95 times they have refused
to. Well then what do you do. There is the dilemma.
Gather the evidence and take a Civil Court action?
Feargal Sharkey : We currently estimate there
are about 6 million people potentially in this country that may be
illegally file-sharing as we speak and what would the cost for an
individual case be and how long might that possibly take? So again,
that is why for me that is one of the options right there.
That is a part of the debate. That is a part of the discussion as
is now potentially at some point maybe possibly intervening in
something that might temporarily suspend somebody’s account, let us
get out there and have all of this discussion. It is a good thing
to be doing because to be honest I can understand the attraction.
UK Music has made its position clear particularly with regard to
saving the list of file-sharers. Actually we put a statement out
back in February/March this year. We collectively have no
ambition to do that whatsoever.
Why is it UK Music’s policy not to take civil action in the
Court?
Feargal Sharkey : Because we did not think that
that was actually going to be a very productive thing to be doing
for any number of reasons. I mean the statement is out there on the
UK Music’s website you can happily read it.
And you do not think the same problems would emerge with the
suspending of access?
Feargal Sharkey : Well as I have already said I
will get back to you when UK Music has a position on that.
The way Sharkey tells it, though, there may be something of a
light at the end of the tunnel for labels. What his survey
uncovered was that young people would most definitely pay for a
legal limitless download service if it was cheap enough.
What UK Music didn't reveal in its report was that it actually
asked young people how cheap was cheap enough, and Sharkey says he
was surprised and pleased at the answer, though he will not tell us
what it is.
Feargal Sharkey : We did actually ask a question
which I am firstly not going to give you the answer to, but we did
ask the question which was not made public simply because it is
commercial information as to what young people felt they would pay
on a monthly basis for a service like that. I am not sure I
would personally use the word cheap. They quite clearly placed a
very high value on music.
And even now, Sharkey says, many of the arguments used to
justify file-sharing and do-down legal services are out of
date.
There is, he says, now no excuse not to go legit.
Feargal Sharkey : I still hear it on occasion
that CD’s are too expensive and music is too expensive. Well,
actually I think it was about 80% of all CD’s in the UK last year
sold for under a tenner and yes you can download music
legitimately, very high quality with no BRM off the internet for 29
pence a track. Well come on guys let’s face it if we are
talking about the price of music here, what part of 29 pence a
track is still too expensive?
That's all we have time for this week, thanks for listening. Why
not get in touch with OUT-LAW Radio? Can you think of a story you
would like to hear us cover, get in touch radio@out-law.com . Make sure you
tune in next week; for now, goodbye.
OUT-LAW Radio was produced and presented by Matthew Magee for
international law firm Pinsent Masons.
