Tackling Infringement: a Game of Two Halves?

Richard Mollet, 27th July 2015

The creative industries are turning the tide against infringement, but the battle is far from won. 

The IPO’s latest survey on online copyright infringement (the “OCI Tracker”, prepared by Kantar Media) is a timely reminder of the importance of the availability of legal services in the battle against piracy.  The fifth wave report shows that 56% of UK internet users continue to access paid-for content online (as opposed to 18% who infringe copyright) and that streaming – mainly of films – is now mainstream  with 62% of content-getting internet users choosing this method.

For ebooks, only 1% of all internet users access illegal files; and only 10% of all internet users who consumed any digital content did so.  These figures mean that publishing has a piracy problem an order of magnitude lower than that for film, TV and music.

Across all content types, a stubborn rump of 5% of the population (largely male, mainly young) continue to eschew any legal content in their preference for illegal files.  These are what Marxists would call the “lumpen-pirates”; those internet users seemingly completely uninterested in what legality has to offer, either them or the wider economy.

Overall the statistics show a steady, but still glacial, turn away from the once seemingly inexorable trend towards a nation of pirates, to a digital creative economy in which the vast majority play by the rules and appreciate the inherent value of what they are using.   This naturally leads to the question as to whether the sector has now done all that it needs to do to combat infringement.  There may be those who say that the enforcement programmes, the provision of legal services and the education around copyright to date may have been enough to arrest and reverse the previous trends.  Perhaps the investment in those programmes has passed the peak of maximum return and any further spending is unnecessary.

But such a view – which one hears more from those outside the sector from within it – would be a complacent error.   Rather than being seen as “one-off” slugs of investment, the programmes (covering enforcement, education and legal services) of the present and recent-past give an indication as to the requisite levels of on-going activity which are needed to keep the problem of online copyright infringement in check.  The stats on legal and illegal consumption (which have been relatively consistent across each of the waves) give a strong pointer towards the equilibrium conditions for the marketplace.  They suggest that provided we maintain a counterbalancing force against the pressures of infringement that it will be a problem that can be managed.

Indeed, there is a further question as to whether even more should be done.  In publishing, we still cannot be certain that the slowing growth in digital revenues is not the fault of continued infringement.  It is never sufficient to simply be content with the trajectory of a figure, without also asking if the velocity could be greater.  Might 2014’s 11% increase in ebook sales have been even higher if the sector did not continue to leach value to the pirates.  There must be a working presumption that it could have been.

Enforcement activity has always to maintain abreast of the changing external challenge – not just in terms of whacking the moles we know, but anticipating where the new ones will pop up too.  There is an ingenuity to the pirate “scene” which, if only it were to be put in service of the legitimate economy, could no doubt do much to boost GDP.    Tackling piracy is not like cat and mouse (in my household, at least, that game usually ends with the relatively swift death of the mouse); it is more like rugby union: the rules change every year and the opponents seems just to get bigger and bigger.

Secondly, similarly, licensing is by its very nature an on-going activity.  New services arrive on the market every day, each with subtly different – or in some cases radically different – characteristics.  Distinguishing the “me-too” ebook service from the truly revolutionary requires careful strategic analysis and consideration.   The shop for licensing is always open.

En passant, The PA tends not to engage in book promotion for obvious reasons, but anyone with the remotest interest in the history of online copyright infringement will no doubt already have read Stephen Witt’s fascinating work “How Music Got Free”, in which he outlines the birth of the mp3 format, the role of physical smuggling from pressing plants, and how this was all viewed with a mixture of bemusement and irritation from the top of the music industry in the early to mid 1990s.  As with any work of history, the contemporary reader – sitting smugly with their 20/20 hindsight and Spotify playlists – cannot help but yell “license the software!” at the turn of every page.