During the past twenty years the Internet has totally changed our home entertainment upside down. The advent of the VHS format followed by the DVD and now Blu Ray was just the tip of the iceberg. Fast speed internet and the widespread availability of content, legal or otherwise, available over the world wide web has drastically changed the landscape and challenged our perceptions of entertainment whilst laws regulating such activities have remained somehow static and reflecting an era where content was not so widely available.
I can vividly remember my childhood days in the mid-nineties trying to play one of the first online multiplayer games Doom through a phone line. Back then, the modem experience was far more Spartan and amusing than todays' "always on" connections. These were the days prior to the explosion of the web as we know it, ancient times before Napster and Grokster and the ubiquitous MP3 file format.
Fast forward to 2012 and to bit torrent sites and peer to peer networks, a golden repository of all the content you would like to see or hear again, from Hogan's Heroes to the latest 3D movies, from the collected works of JS Bach to the complete discography of Emerson, Lake and Palmer, from a copy of an emulated version of Pac Man to the latest first person shooter. Endless availability of content has translated into mass copyright piracy, changing long established business models enshrined in our copyright laws.
Many were those, including Hollywood giants, who were slow to react to this paradigm shift in entertainment. As more consumers opted to go online, companies like Blockbuster filed for bankruptcy whilst EMI has through recent times battled many storms in order to try and remain afloat.
Some jurisdictions such as the US with their Digital Millennium Copyright Act, UK with their Digital Economy Act and France with their Hadopi Law introduced tougher copyright laws to try and limit the haemorrhage. The founders of Pirate Bay have been convicted, Megaupload has been shut down. At the same time many authors started questioning whether presently available copyright concepts are limiting creativity and giving too much power to IP holders. In the meantime, millions of internet users are just turning to free entertainment in the form of pirated material which is easily and freely available through the Internet.
The whole ACTA (Anti-Counterfeiting Trade Agreement) debate that has hit us like a tsunami in the past few weeks has just crystallised the reality we face today. Many internet users have grown used to the 'everything is free' culture which has toppled down big industry names. Perhaps few of us realise however that ACTA is not strictly changing any legal landscape relating to online copyright available locally even though if you read everything that is being written on social networks might lead you to arrive to a different conclusion. ACTA is not changing how copyright infringement is defined. ACTA is not re-inventing any wheels. What is illegal today will remain illegal with ACTA.
Perhaps the whole ACTA debate has brought to the fore how widespread copyright infringement is. This nevertheless does not essentially mean that whoever illegally downloads an MP3 or an episode of Dexter is a criminal. Many unfortunately fail to distinguish between the civil infringements of copyright which provide that the unauthorised copying of copyrighted material would breach the provisions contained in the Copyright Act and the criminal sanctions found under our Criminal Code which provide that any breach of copyright done by way of trade or for gain would carry a criminal sanction. Whilst it is statistically improbable that Sony or Paramount will open a case against you before a civil court in Malta on the basis of some few movies downloaded illegally for your own private use, this does not mean that those same downloads are not illegal or run against our copyright laws. It appears however that we just don't bother anymore about laws and download stuff as a culture, as an ingrained and essential part of our online experience. Younger generations are growing up in a world where content is so easily available that the mere fact that a download might be illegal will not deter them from participating in that illegal activity. Piracy is the norm.
Malta has not been immune to this wave of piracy as the most efficient source for our entertainment. It is impressive to note that a huge percentage of international download bandwidth is being consumed for illegal downloading. But whilst Malta may be a tiny drop in the piracy ocean, the fact remains that such activities are still illegal.
An often forgotten part of ACTA is in fact the obligation on States to set up educational and informational campaigns about downloading. In fact, Article 31 of ACTA stresses the importance that parties to the Agreement should promote the adoption of measures to enhance public awareness of the importance of respecting intellectual property rights and the detrimental effects of intellectual property rights infringements.
Whilst it remains to be seen whether ACTA will eventually see the light of day, one seriously needs to sit down and consider whether ancient laws of copyright are serving their purpose and whether the information and creative society can co-exist with established principles of intellectual property protection. Irrespective of any law we might introduce to try to contain or curb this reality, the fact remains that the endless demand for free content will continue.
Article 298B(2) states that prosecution commences only on complaint of the injured party. Will this remain the same with ACTA or does ACTA make it possible to prosecute even without complaint? In the case of the latter, what type of surveillance could authorities use thanks to ACTA? Will this surveillance trample HR to privacy?
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