Defamation Act 2013: Free Speech or Reputation?

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25 June, 2013
Anamaria-Mitina Mihaita, Media Law
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– Anamaria-Mitina Mihaita (LLB Law, Newcastle University) mihaita_ana@yahoo.com

The Defamation Act 2013 has been expected with interest, as the law of defamation before the Act was uncertain and unfair. In addition, the recommendations in the Leveson Report added further concern about the enactment of a law which would bind the press and, consequently, sacrifice freedom of expression in a democratic society. After the Leveson Inquiry, the press was threatened to be imposed with heavy regulations and harsh controlling measures. However, the Defamation Act 2013 turns out to be a useful tool to create a fair balance between freedom of expression and the right to a good reputation. The 2013 Act is still under discussion and the reason is straightforward. In defamation law, decisions are never easy as judges have to make a ‘tragic choice between right and right’. In some cases, it can appear to be subjective or even arbitrary. For this reason, a strong and clear basis is needed. In light of this, it is beyond doubt that the act is a desirable development of the law.

The law before the 2013 Act was archaic and unbalanced, which resulted in chilling effects and the oppression of legitimate debate. This is the result of years of lopsided law in favour of the right to a good reputation. As a result of this, the case law in this area has become an obstacle for judges who want to shift the balance. A concrete example is the case of Reynolds v Times Newspapers Ltd where the courts tried to expand the protection of freedom of expression. However, judges found themselves constrained by the antique law and precedent. Consequently, judges’ desire to modernise the law by stretching the meaning of the words lead to a mistaken association of modern ideas such as ‘freedom of expression’, ‘public interest’ and the archaic idea of ‘privilege’. Despite the difficulties encountered, Reynolds v Times Newspapers Ltd was in fact a step towards the creation of a fair balance.

The law was in need of a statutory reform in order to achieve the balance our century requires. Therefore, as Lord McNally suggested, the Defamation Act 2013 brought the tort of defamation into the 21st century, creating a more balanced and fair law. This has been achieved by the introduction of new statutory defences and the abolition of old ones. An example of this is the substitution of the defence of fair comment by the defences of honest opinion and scientific publications. This new law offers a more specific protection to scientists as it has been long requested. It is a desirable situation because science publications are more theory-based than fact-based. Moreover, the abolition of the jury unless judges request it, the clarification of the first publication rule and the protection of website operators are just few examples that prove a desirable modernisation of the law. Although controversial, the former measure is meant to remove any type of sympathy-winning cases. It is an attempt to put justice in the most neutral hands. Overall, the changes brought by the 2013 Act have been created to add certainty without destroying flexibility. The original position of the English law with regards to defamation has definitively changed. However, the 2013 Act does not impose a sudden and unexpected change, but it codifies an on-going modernisation of the law.

The Act has not escaped criticism. Timothy Pinto thinks that the new act of defamation is a ‘boost for free speech’. He supports the idea that the UK’s Defamation Act 2013 will likely benefit the media, intermediaries, and scientific and academic publishers. Under the new law, he claims, companies are likely to find it difficult to succeed if they have been defamed. Moreover, he wrote that the act is ‘a boost for free speech’ because of the new requirement of proving harm and the numerous statutory defences. These changes, in his view, will work against the claimant and against the right to a good reputation. Pinto’s expectations of the Act are, in fact, too high and unrealistic. The utopian idea that an Act could address any possible scenario and could create a real balance on paper is unhealthy and impossible. Even if a perfect balance could be created in theory, its application lays in the hands of judges. For this very reason, the Defamation Act 2013 modernises the law by imposing statutory solutions but also by leaving the text open to interpretation. The 2013 Act recognises the importance of the judiciary’s discretion in the implementation of the law on a case-by-case basis. Pinto is, however, not alone in this view. Sarah Lyall believes that the act is a danger for the right to a good reputation. The new public interest defence, in her view, allows defendants to publish defamatory statements and avoid liability proving that the statements were believed to be in the public interest. However, Lyall does not take into account the judiciary intervention. To my mind, the 2013 Act provides a good basis for the tort of defamation. The defence of public interest does nothing else but introduce a subjective and more malleable defence. This new approach is necessary in a society where events are subjective, unclear and in continuum change. In light of this, Simon Singh’s statement that “now [there is] legislation which will change the landscape of free speech in Britain”, appears to be the overall feeling among publishers.

In conclusion, pursuing the perfect law is a naïve scope which ignores the human factor. The Defamation Act 2013 is an important piece of legislation which fills the gaps of the old law and provides a modern basis for further developments. Whether the Act will work in favour of freedom of expression, or in favour of a fair balance is yet to be seen within the case law.

A Critique of Justice Scalia

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20 June, 2013
Constitutional Law, Thomas Gordon
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Antonin_Scalia2(Source: http://www.supremecourt.gov/about/members.aspx)

– Thomas Gordon (LLB Law, Newcastle University) twgordon91@gmail.com

‘To look for the original meaning, or not to look for the original meaning?’ That is the question on literally a few people’s lips. That the US Constitution is ‘living’ is a fact. Judicial interpretations of laws such as the Commerce Clause have changed over the past 200 years, and continue to do so. Whether or not ‘Originalism’ should be preferred is merely an academic debate. Even the supposedly originalist judge Justice Scalia does not absolutely prioritise original meaning when stare decisis makes it impractical to do so.

Indeed, the ‘Living Constitution vs Originalism’ debate is a smoke screen for the highly political impulses lying beneath such rhetoric. Take, for example, the above mentioned Justice Scalia in Lawrence v Texas. In this case, the majority declared a state law banning sodomy between consenting homosexuals to be unconstitutional. Dissenting, Scalia used reasoning based upon the ‘rational basis’ approach found in substantive due process jurisprudence. He therefore implicitly accepted a line of jurisprudence arising NOT from Constitutional text, but a theorising footnote from Carolene Products. Presumably ‘stare decisis’ was the reason behind this.

However, the same judge is all too ready to let the world-and-his-wife know about how he would overturn Roe v Wade. The time difference between Roe and Carolene Products, if stare decisis is a great concern, is 35 years (a small proportion in the, admittedly young, life of the United States). There have been other major cases paying lip service to Roe as well (most notably Casey). Its international fame and judicial acceptance means that Roe is one of the most embedded decisions in US Constitutional law.

Why is there a difference in approach between the two cases?

The clear answer is personal politics. Scalia’s opinions favour socially conservative results. This would be acceptable if a defensible method were consistently used to reach them. However, he does not do this. Scalia criticises Roe by saying that the right protected in that case is not found in the Constitution, but dissented in Lawrence using a form of reasoning that is judicially invented.

What is even more ugly, beneath the attractive velour of originalist rhetoric, is that he is a judge showing a level of self-belief that is actually destructive of the republican philosophy he supposedly supports. Republicanism is an approach to governance where ultimate power rests with the people. The democratic legitimacy theory behind Originalism, that the government should only have the powers that the public thought they were giving it when they voted upon the Constitution, is therefore rested in republicanism. However, Scalia is too ready to ignore the powers that people currently think should lie with central government. The fact that Roe has not been overruled by Constitutional Amendment shows a level of acceptance by the American public that ought to be respected.

Additionally, he is incredibly ready to support invented legal categorisations, as he did in the ‘Obamacare’ decision Sebelius in relation to the Commerce Clause, to strike down a President’s signature piece of legislation. This hardly shows a willingness to respect the idea of a social contract between the governed and the governing that he would sometimes like people to believe.

A judge that did show a willingness to respect the democratic process was Justice Jackson. Two of his key decisions – Steel Seizure Case and Wickard v Filburn, allowed current politics to decide upon the constitutionality of federal action. This approach is preferable to Scalia’s legalistic methods. This is because when a case reaches the Supreme Court, the federal level of government is determining the Constitution’s meaning. However, it is the only branch of the Federal Government that is not elected by the public. Therefore, where federal legislation appears to be Constitutional (as the Obamacare legislation appeared to be acceptable under the Commerce Clause), the nuanced debate over the extent of governmental power should rest with the elected branches’ wishes, as Justice Jackson recognised in both of the mentioned cases. Moreover, Justice Scalia does not have a defensible method that he remains loyal to. He is unpredictable, and ultimately is willing to usurp elected decision making for his own personal preferences. His stated desire (to prioritise self governance as a value) is better served by a more lenient Jacksonesque approach than the one he currently takes.

Living History: The Boston College Case and the SPADs Bill

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18 June, 2013
Colin Murray, Human Rights Law
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2052704384– Colin Murray (Senior Lecturer, Newcastle Law School) colin.murray@newcastle.ac.uk

“The past invades the present, The present lives in the past, The future will never come.” The closing words of Robert Greacen’s poem, Procession, lamented the atrophy of unionism in the aftermath of partition. In the last week, the troubled passage of the Special Advisers Bill through the Northern Ireland Assembly and the UK Government’s fight through the US Courtsfor records of an oral history project held by Boston College (pictured left) indicate just how far Northern Ireland hasn’t come in tackling the Troubles’ legacy.

Both events relate to the victims of the Troubles. In the case of the SPAD Bill, completed its tortured journey through Stormont on Monday, much to the delight of its sponsor, the TUV’s Jim Allister. The legislation prevents anyone with serious criminal convictions from serving as special advisers at Stormont. In this context, serious criminal convictions inevitably relate to activities during the Troubles. Sinn Féin is the party directly affected by the measure, with several former Provisional IRA prisoners having held adviser positions to its leading representatives. It has doggedly defended the line that this legislation does not recognise the victimhood of former prisoners, and thereby creates a hierarchy of victims of the Troubles.

Sinn Fein’s legal criticisms of the Bill are twofold, and it seems inevitable that they will be tested in court. One, they assert that this legislation discriminates against its members on the basis of their political beliefs. Two, they believe that as the legislation applies no matter when a serious crime was committed, the legislation amounts to a retrospective punishment for the advisers’ crimes, contrary to Article 7 ECHR. The SDLP abstained from voting on the legislation because of these flaws.

The first argument has been played out in the courts before, when the Simon Community refused to employ former PIRA prisoners John McConkey and Jervis Marks. The House of Lords ultimately rejected their claim, despite acknowledging that it seemed to chime “with the often-expressed desire for a new start for Northern Ireland after the Good Friday Agreement” (at [29]). As Lord Rodger concluded (at [31]):

[There is nothing surprising, far less absurd or outrageous, in holding that [anti-discrimination legislation] allows such people to say: “No, I’m sorry, because of all I have suffered, I won’t employ you; I won’t serve you.” To hold otherwise would be to force these vulnerable individuals to associate with people who approved of the use of the very kind of violence that has blighted their lives.

With the courts having dismissed these claims once, it is unlikely that they will gain any traction with regard to arrangements surrounding government. As for the Human Rights argument, the focus on any litigation will be on whether this bar on becoming a Special Advisor amounts to a penalty, for the ECHR prevents the imposition of “a heavier penalty … than the one that was applicable at the time the criminal offence was committed”. The counter-argument will be that the measure does not constitute a penalty at all, but a protection for the democratic process. With regard to bars on prisoners voting, the European Court of Human Rights has explicitly recognised the leeway states have to protect their electoral systems where individuals have been involved in activities (such as political violence or electoral fraud) which undermines the democratic process (see Frodl v Austria, [28]). Any potential case would be the most important constitutional issue for Northern Ireland’s legal system for decades, for the courts have the power to strike down any Assembly legislation which fails to meet human rights standards.

Despite the weaknesses of the case, the legislation seems to use victims to score political points rather than serve their interests. That former paramilitary prisoners would have to have a role in Northern Ireland politics following the peace process was one of the most contentious issues in the Good Friday Agreement negotiations. Politicians can be elected to the Northern Ireland Assembly regardless of their past convictions (indeed, the MLAs who backed this legislation sit in the Northern Ireland Executive with former PIRA prisoners like Gerry Kelly). The DUP and UUP recognise that they cannot challenge Kelly’s position (or say, prior to his death, PUP MLA David Ervine, a contributor to the Belfast Project) without destroying the peace process, regardless of what might be said about his position by the victims of his bomb attacks. In that respect, this legislation is creating a hierarchy of victims, those whom others can use to score political points, and those whom they cannot.

If the SPADs Bill displays the failure of Northern Ireland’s politicians to move on from the Troubles, the Boston College case show the hubris of historians in thinking that they had. Led by journalist Ed Maloney, from 2001 the team at the Belfast Project went about recording interviews with former members of the republican and loyalist paramilitaries to provide an archive for historians to use after the participants in the interviews had died. As some of those involved died, Maloney began publishing and broadcasting material from the archive (including the award-winning documentary Voices from the Grave). This, in turn, drew the attention of the PSNI Historical Enquiries Team, particularly as some of the released material related to the murder of Jean McConville. Under the US-UK Treaty on Mutual Legal Assistance on Criminal Matters the UK requested that the US Government subpoena materials relevant to this investigation. Boston College fought against efforts at disclosure, on the basis that interviewees had been promised confidentiality.

On May 31st, the US First Circuit Court of Appeals delivered its latest judgment in the saga, a partial victory for Boston College. The appeal recognised that the College should only have to release material directly relevant to the McConville investigation, in light of the “heightened sensitivity” surrounding the free speech concerns inherent in academic research of this type. Rather than having to release fully 85 interviews, the College must now release only 11.

Maloney and his fellow researcher Anthony McIntyre celebrated the decision “as at least a partial indictment of the whole process” by which the US Government sought the release of information. Both the US Government, and the PSNI Team requesting the information, however, are simply fulfilling their roles under treaty and domestic law. Whether those roles overstep constitutional boundaries in the US may yet be a matter for the US Supreme Court, with further appeals a possibility. What the case does indict is the record of Northern Ireland’s politicians in dealing with the legacy of the Troubles, in leaving the Historical Enquiries Team to soldier on as the official organ for the investigation of serious crimes committed during the conflict.

The SPADs Bill and the Boston College case have attracted considerable hyperbole. Sinn Féin has accused the SDLP of abandoning the Good Friday Agreement in refusing to reject the legislation, whilst the Belfast Newsletter posed the doom-laden question of whether the “secret” Belfast Project archive could “end our peace” by triggering a raft of prosecutions. Together they exemplify the consequences of the failure to deal with the Troubles in any holistic way, and simply add to the malaise of recriminations afflicting politics in Northern Ireland.

Much ink has been spilt outlining what an effective Truth and Reconciliation (TRC) process might look like for Northern Ireland (not least on the pages of humanrights.ie). The events of the last week, however, show us what the absence of a TRC process will look like for years to come. Persistent court cases. Partial legislative fixes. Inquiries and rumours of inquiries. The resolution of each new crisis portrayed as a victory by one side or the other, with little overall regard for the interests of victims or advancement of the political process, just the hope that simmering discontent does not, once again, boil over. Will the future ever come?

Is the Problem of Rape Myths in the Criminal Justice System Overstated?

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16 June, 2013
Criminal Law, Dr Nikki Godden
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(Picture card ‘this is not an invitation to rape me’ from Rape Crisis Scotland.)

– Dr Nikki Godden (Lecturer in Law, Newcastle Law School) – nikki.godden@newcastle.ac.uk

This post was first published on Inherently Human: Critical Perspectives on Law Gender and Sexuality

The low conviction rate for rape – approximately 6 per cent where convictions are measured out of the number of reported cases – and the high rate at which rape cases filter out of the criminal justice system before trial is well known. One common explanation for these statistics is that rape complainants and cases are judged by reference to rape myths, which are false assumptions as to what constitutes rape, and when, where and between whom sex is typically non-consensual. Examples of rape myths are propositions such as: a woman wearing a short skirt is more likely to have consented to sex than a woman wearing less revealing clothing; rape victim-survivors report the incident immediately to the police; rape victim-survivors typically physically resist the perpetrator; subsequent sexual engagements between two people are more likely to be consensual than the first time they had sex. Failing to reflect women’s lived experiences of sexual violations, it is often said that reference to these myths result in complainants being treated with suspicion, cases not being adequately investigated or prosecuted, and defendants being acquitted relatively frequently. However, in an article in the Oxford Journal of Legal Studies which was summarised in the media (see here for example), Helen Reece argues that ‘rape myths’ are not as widespread as is commonly claimed, and do not hinder the investigation and prosecution of rape cases to the extent that is argued by many researchers, feminist activists and policy-makers.

Reece argues that the ‘rape myth’ explanation for the high attrition rate and low conviction rate is overstated. She explains that: one, ‘some of the attitudes are not myths’; two, ‘not all the myths are about rape’; and three, ‘there is little evidence that the rape myths are widespread’. While her point that the term rape myths has become shorthand for a wide collection of assumptions, attitudes and stereotypes about rape, sex, sexual behaviour and so on is fair, it is where she goes from here that is problematic. Reece seems to suggest that there is little that can be done to improve the attrition rate and conviction rate for rape cases. While improving the conviction should not necessarily be the main aim of reform in this area, and instead the focus should be on improving the treatment of victim-survivors through investigation, prosecution and trial (for example, see the treatment of victim-survivors at trial in the Oxford abuse ring case), Reece does not go down this road. Rather, her argument risks overshadowing and undermining efforts to improve the criminal justice response to rape and the treatment of victim-survivors. Indeed, she begins the article by arguing that the criminal justice response to rape does not need to be understood as a particular problem which should engender particular attention.

The Particular Problem of Rape

The ‘justice gap’ – that is, the large gap between the number of reported rape cases and the number of cases which result in a conviction for rape (the basis of the 6 per cent national conviction rate) – is frequently cited in academic articles and in the media to justify a focus on improving the criminal justice response to rape. Reece draws statistical comparisons to highlight high attrition and low conviction rates for some other serious offences, such as burglary, suggesting that there is no justification for a focus on rape (p 5). However, pointing to other crimes which have equally poor attrition and conviction rates does not mean that there is no problem to be addressed, although it does raise the question: why should time, energy, and resources be spent on attempting to improve the criminal justice response to rape in particular? While Reece anticipates and addresses answers to this question, she fails to adequately challenge the strongest and most significant reason for focusing on rape – the point that it is a gendered harm. Reece recognises that rape is ‘particularly harmful’, justifying academic, political, and legal attention, even if some other crimes have comparable attrition and conviction rates (when measured in the same ways; p 6). However, she challenges this position, noting that some feminists have argued that over-emphasising the ‘intrinsic trauma’ of rape may be a factor preventing women from recognising that they have been raped if they do not experience this form or extent of harm (p 6). This, however, is a narrow understanding of the harm of rape. Rape may be traumatic and may be psychologically and emotionally harmful, but what justifies particular attention to the crime is that it is a gendered harm – one which is most commonly perpetrated by men against women, reflecting and reinforcing male power and gender inequalities. As such, improving the criminal justice response to rape deserves and requires particular attention and effort, not only to secure justice in individual rape cases but to address gender injustices at the societal level.

Rape Myths that are Not Myths ; And Myths that are Not about Rape

Reece also argues that some of the ‘rape myths’ are not really myths, in the sense that they cannot be proven to be false. For example, she says the idea that there are a high number of false allegations of rape is often described as a myth. There is no evidence that there are more false allegations for rape than for any other crime, but there is little proof that there is not a high number of false allegations of rape, and therefore as this cannot be proven one way or the other it is wrong, she says, to label the false allegations assumption as a myth (pgs 16-17). Reece’s analysis of claims that are labelled myths when they are not factually proven as false is technically accurate, but it obscures the fact that the assumptions made are problematic.

This leads into another point she makes – that claims are given the status of myths when feminists argue that they are ethically or normatively wrong rather than wrong in fact. While Reece acknowledges that the ethical status of some commonly termed rape myths is acknowledged by some scholars (see references on pgs 9-10), she argues that it is ‘disingenuous’ to label the presumptions as myths (pg 22). Reece is right in so far as the label ‘rape myth’ has become shorthand for a variety of assumptions, gendered stereotypes, social norms, and so on. And some of these myths are primarily about sex – for example, reading or misreading an invitation to have coffee as an indication of willingness to have sex. But rape and sex are only distinguished by the presence/lack of consent and reasonable belief in consent (see pg 23). Assumptions as to when, where, and with whom women consent to sex/do not consent to sex are about the line between sex and rape, and what constitutes a criminal offence and what are otherwise lawful sexual relations. I fail to see how an assumption regarding consent to sex does not also raise assumptions about rape. But, in any event, if the assumptions, norms, and so on were more clearly conceptually distinguished and labelled, I would have no objection. What is objectionable is that Reece’s points about the mis-labelling of rape myths supports an approach which takes social, political, and legal attention away from addressing sexual violence against women, and instead focuses on abstract ethical debates.

Rape ‘Myths’ and the Conviction Rate

Reece argues that rape myths – presumably understood in the broad sense of incorporating ethical statements – do not affect the attrition and conviction rate to the extent that is commonly argued. Rather, she says:

‘There are a lot of [rape] cases where there’s no other evidence than one person’s word against another. Both sides are saying they had sexual intercourse but [don’t agree that it] took place in the [same] way … I don’t think there’s much more we can do to increase the conviction rate. I would like to see a more straightforward debate about the issue.’

But it is not that straightforward. From the facts, evidence, and testimonies, criminal justice personnel, judge, jurors, and so on must interpret whether the complainant consented and whether the defendant held a reasonable belief in consent. Interpretations of the circumstances and who is telling the ‘truth’ – the complainant or defendant – are informed by gendered norms regarding sexual behaviour. What counts as evidence is also contested – notably when, if at all, a complainant’s sexual history can be used as evidence of consent, or as grounds for reasonable belief in consent. Part of Reece’s point, though, is to challenge the extent to which social norms and rape myths do influence interpretations of evidence and the complainant’s and defendant’s perspectives. In this respect, she critiques the methodologies of research studies which investigate ‘rape myth acceptance’. Reece raises some very good and valid points, and feminists and others writing on rape and sexual violence should pay close attention to the studies they are citing as evidence of public attitudes towards rape. What I do not think necessarily follows is that problematic attitudes towards sex, and women’s sexual choices and behaviour in particular, are not as widespread as is commonly claimed. Looking at the wider picture illustrates this: for example, victim-survivors’ experiences of the criminal justice system and how they can be treated by criminal justice personnel; or public and media commentary on recent attacks, such as in Steubenville, Ohio; or the everyday sexism and sexual objectification that women experience.

In addition, it is not just only the conviction rate that is a problem, but the way that victim-survivors are treated in the criminal justice system and at trial. Sometimes this relates to attitudes that are held by criminal justice personnel, sometimes it is a lack of regard for or lack of knowledge about rape victim-survivors’ experiences and needs, and sometimes it may be a lack of resources for victim-survivors. While the criminal justice process should be improved to ensure that victim-survivors are properly treated and are not subject to further harm, these points do also relate to the conviction rate. The high rate of non-reporting is related, in part, to victim-survivors’ perceptions of inadequate criminal justice responses to rape, and some victim-survivors withdraw their complaint because of a negative experience in the criminal justice system. Reece’s argument risks overshadowing and undermining efforts to challenge gendered social norms which restrict women’s sexual choices and to improve the criminal justice response to rape, and the treatment of victim-survivors.

Alternative Revenue Sources for Copyright Owners in the Digital Age

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12 June, 2013
Media Law, Victoria Hall
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Orangecopyright

– Victoria Hall (MJur, Durham University) vicky.hall@durham.ac.uk

With regard to the music industry, there is one major source of revenue which is, unsurprisingly, usually left out of copyright owners’ calculations when producing profit and loss reports. Clark argues that ‘revenue opportunities being afforded to touring, live performances and merchandising outstrip record sales by some distance’. Moreover, the live music industry seems to be going from strength to strength. Pollstar claims that ‘Between 1999 and 2009 concert-ticket sales in America tripled in value, from $1.5 billion to $4.6 billion.’ This trend was set to continue, as in 2012 the ‘Top 100 Tours in North America generated a combined gross of $1,125.9 million, up 1.2 percent over last year [2011].’ The continuing growth and popularity of live concerts can be attributed to one key fact: ‘There is no way to digitally recreate the excitement and atmosphere of a live concert.’ Concert lovers will always pay to see their favourite artists live, irrespective of whether or not they own the track(s) performed. This is surely a key way in which copyright owners can continue to obtain substantial revenue, to help subsidise a far cheaper retail value for their recorded material.

Advertising will also be a key factor in the reshaping of the copyright landscape. It offers a good, reciprocally beneficial arrangement to both the advertisers and the host forum, and, ultimately, the consumer at the end of the chain.  This could be achieved both through the website selling the concert tickets, as well as at the venue itself. This two-fold advertising campaign could realise even further profits. Artists are simply not taking sufficient advantage of the alternative revenue sources available to them. Perhaps this is because, although it is in their own interests, it is not in the interests of the ultimate copyright owners: their record labels. Before too much pity is felt for recording companies however, it should be noted that, despite the prevalence of copyright infringement, ‘Digital music revenues to record companies grew by 8 per cent globally in 2011 to an estimated US$5.2 billion. This compares to growth of 5 per cent in 2010.’ Claims that record companies will struggle and fail in the current climate do not seem to be upheld by the real facts and figures.

It would appear that the creators themselves, those being the individuals copyright law was supposedly developed to protect, generally support these alternative systems. Many artists have experimented with these methods, and have, by and large, been successful in doing so. Some bands have provided free copies of their music to fans to publicise their live tours, of which McFly, The Kinks and Prince are just a few. Indeed, Prince found his album giveaway to be so successful (it led to a record breaking, sell out concert tour) that he repeated the experiment with his next album. Whilst it is undeniably unfortunate for high street record shops to have to suffer as a result of this, this cannot be a sufficient reason to deter the trend. High street retailers will simply have to adapt to the new changes in digital technology, just as producers of floppy disk and VHS cassette equipment (to name but a very few examples) were forced to do before them. Technology will not wait.

Yet it seems to be a commonly held belief that it should, or that providers of outdated technology have some sort of right to continue to profit on their increasingly redundant products. Duboff states for example that ‘In the United Kingdom, digital growth during 2011, reported at 24.7 per cent by the BPI in February 2012, only offsets two-thirds of the decline in income from sales of physical  music products.’ But why should digital sales have to ‘offset’ physical products? The decline in sales of physical music products, is an unfortunate (for those involved in their production) but inevitable consequence of technological advancement, and has been throughout recent history. There should be no obligation to, in some way, ‘subsidise’ this sector. Many retailers of physical music products have altered their business models to suit the now flourishing digital market. This is arguably how it should be.

For the most part, consumers tend to support this model too, as the consistent growth of concert ticket sales mentioned above indicates. This may be because live concerts are seen as special events by consumers, to be remembered long afterwards, and are categorised entirely separately to the purchase of a track or album. As Wing points out, for some there is no substitute for the experience. The time and expense expended on organising and producing the event is more evident to the consumer, who is therefore more willing to pay a relatively large sum for a ticket.

So if artists and consumers are in favour of using live concerts as a major source of revenue to subsidise low material sales, why is this not now merely commonplace? The answer, unfortunately, leads to a serious obstacle. Record labels, which make their profits from record sales, are against this sort of shift in revenue sourcing. Bearing in mind that they now tend to be the copyright owners, it becomes clear why more artists are not changing their business models to accommodate this new change in demand. Until a more fundamental overhaul of the nature of copyright itself has occurred, this convenient and sensible option will most likely be shunned by the powerful creative industries.

It is not only music artists who have used the potential of free material to tempt individuals to ultimately pay for more in the future. The BBC has recently released a Youtube-only nature documentary channel, aimed at teenagers. It aims to attract a new audience to what the BBC has to offer. Clearly it recognises the direction most new users are taking when it comes to material for entertainment. The channel is a good example of a short term loss in order to, hopefully, reap long term rewards by attempting to secure the patronage of the next generation. A more cynical view may be that the BBC has decided that, ultimately, ‘if you can’t beat them, join them’.

 

Sources:

  • Clark, R ‘Sharing out online liability: sharing files, sharing risks  and targeting ISPs’ in Strowel, A (ed) Peer-to-Peer File Sharing and Secondary Liability in Copyright Law 2009 Edward Elgar Publishing Inc. At 196-228, 197.
  • Duboff, A ‘IFPI Digital Music Report 2012 – what’s the story?’ [2012] 23(4) Ent.L.R. 96-98, 98.
  • Wing, M ‘The digital copyright time bomb in the BRIC economies, some ideas from the UK for the Indian market’ [2012] 54(4) Int.J.L.M. 302-210,307.