Cookies on Pinsent Masons website

This website uses cookies to allow us to see how the site is used. The cookies cannot identify you. If you continue to use this site we will assume that you are happy with this

If you want to use the sites without cookies or would like to know more, you can do that here.

Teenage clicks

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.
27 Aug 2009

A text transcription follows.

This transcript is for anyone with a hearing impairment or who for any other reason cannot listen to the MP3 audio file.

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


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 Make sure you tune in next week; for now, goodbye.