Legal Aspects of File Sharing - Statute and Case Law By Jurisdiction - United Kingdom

United Kingdom

File sharing has been a contentious issue in the UK and the UK government believed action would help drive the UK’s vital creative and digital sectors to bolster future growth and jobs. According to a 2009 report carried out by the International Federation of the Phonographic Industry 95 per cent of music downloads are unauthorised, with no payment to artists and producers. Market research firm Harris Interactive believed there to be 8.3 million file sharers in the UK. Moreover the BPI claimed that in 1999 UK music purchases totalled £1,113 million but had fallen to £893.8 million in 2008.

The Digital Economy Bill has now become the Digital Economy Act 2010 which received Royal Assent on 9 April 2010. The Act may have serious repercussions for both file sharers and internet services providers.

Previous cases in the UK have seen internet users fined £2500 for sharing music on the internet. The Digital Economy Bill proposed that internet service providers (ISPs) issue warnings by sending letters to those downloading copyrighted files without authorization. Following this, the bill proposed that ISPs slow down or even suspend internet access for repeat offenders of unauthorized file sharing. The bill aimed to force internet service providers to disclose the identities of those offenders as well as making conditions for the regulation of copyright licensing. The Digital Economy Bill incorporated a graduated response policy despite the alleged file sharer not necessarily having to be convicted of copyright offences. The bill also introduced fines of up to £50,000 for criminal offences relating to copyright infringement – for example if music is downloaded with intent to sell. The high penalty is considered to be proportionate to the harm caused to UK industries. An appeals process exists whereby the accused can contest the case however concern has been expressed that this process will be costly and that, in requiring the individual to prove their innocence, the bill reverses the core principles of natural justice. Similarly, a website may be blocked if it is considered that it has been, is being, or is likely to be used in connection with copyright infringement meaning that a site does not actually have to be involved in copyright infringement – rather intent must be proved.

The implications of the Digital Economy Act on providers of public Wi-Fi access is uncertain. Responsibility for breaches could be passed on to the provider due to the difficulty in identifying individual users. The internet provider therefore may risk losing internet access or facing a hefty fine if an infringement of copyright takes place. Many libraries and small cafés for example may find this impossible to adhere to as it would require detailed logging of all those requiring internet access. In libraries in particular this may provide challenges to the profession’s importance of user privacy and could force changes in future policies such as Acceptable Use Policies (AUP). Public libraries utilise AUPs in order to protect creative works from copyright infringement and themselves from possible legal liability. However, unless the AUP is accompanied by the provision of knowledge on how to obey laws it could be seen as unethical, as blame for any breaches is passed to the user

The hospitality sector may also be affected by the Digital Economy Act. The British Hospitality Association has stated that hotels would have particular problems in providing details of guest’s internet access to Internet Service Providers and entire hotels may face disconnection. They have also expressed their concern that an individual's actions may lead to such a drastic outcome.

The bill was met with a mixed response. Geoff Taylor of the BPI claims the bill is vital for the future of creative works in the UK. Moreover, the Conservative spokesman for Culture and Media stated that those downloading should be given a criminal record. Conversely, Liberal Democrat spokesman for Culture and Media, Don Foster, claimed the bill was reckless and dangerous stating that children could unwittingly be file sharing causing an entire family to lose their internet connection. In addition to this, there was concern that hackers may access internet connections to download files and leave the bill payer responsible.

Internet service providers were also hostile towards the bill. TalkTalk stated that suspending access to the internet breached human rights. This view may be shared by many, as a survey carried out by the BBC found that 87% of internet users felt internet access should be the "fundamental right of all people". Certainly, people require access to the internet for many aspects of their life for example shopping, online banking, education, work and even socialising. Furthermore, Talk Talk Director of Regulation, Andrew Heaney has acknowledged that file sharing is a problem but the answer is to educate people and create legal alternatives. Heaney has also argued that disconnected offenders will simply create other user names to hide their identity and continue downloading. Talk Talk has claimed that 80% of youngsters would continue to download regardless of the bill and that internet service providers are being forced to police this without any workable outcomes

Virgin media also criticised the Digital Economy Bill believing it to be heavy handed and likely to alienate customers. Virgin advocated the development of alternative services which people would choose instead of file sharing.

The bill provoked protests in many forms. The Guardian reported that hundreds were expected to march outside the House of Commons on 24 March 2010. Moreover, an estimated 12,000 people sent emails to their MPs, through the citizen advocacy organisation 38 degrees. 38 degrees objected to the speed with which the bill was rushed through parliament, without proper debate, due to the imminent dissolution of parliament prior to a general election. In October 2009 TalkTalk launched its Don't Disconnect Us campaign asking people to sign a petition against the proposal to cut off the internet connections of those accused of unauthorized file sharing. By November 2009 the petition had almost 17,000 signatories and by December had reached over 30,000.

In addition to protests against the bill as a whole, the Pirate Party in the UK has called for non-commercial file sharing to be legalised. Formed in 2009 and intending to enter candidates in the 2010 UK general election, the Pirate Party advocates reform to copyright and patent laws and a reduction in government surveillance.