 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
|
|
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
|
|
 |
|
|
 |
 |
|
|
|
|
|
|
Commentary>Internet pirates in the CaribbeanBy Kedian Francis , Legal Writer |
 |
I will take the unusual step of admitting that the title of my article is misleading, as this piece will not focus on piracy in the entire Caribbean, just Jamaica. Every historian knows that the country of the late Henry Morgan and his colleagues from Port Royal is not unfamiliar with robbery on the high seas.
However, the type of piracy that currently concerns Jamaica and many other countries is the taking and using of copyrighted or patented material without authorisation or the legal right to do so.
The emergence of the Peer-to-Peer (P2P) network has allowed internet users to easily reproduce copyrighted work such as songs and movies without the permission of the copyright holders. This has undoubtedly affected record companies' profit margins. According to the Recording Industry Association of America (RIAA), the music industry loses about US$300 million per year to piracy worldwide. The losses suffered by the Jamaican music industry are equally staggering.
P2P NETWORKS SUED
To help combat their losses, the RIAA sued a number of P2P networks, the
rationale being that the restricting of the main P2P networks will likewise
restrict individuals' ability to access music online without paying.
Nevertheless, despite wins in the United States Supreme Court against Napster, Aimster, Grokster and a number of other networks, online piracy has continued unabated.
As one writer put it, file swapping has only flourished under legal attacks as despite the rulings against the P2P networks the underlying software continues to be improved upon and utilised.
THE RISK FOR J'CAN USERS
The record companies therefore decided to go after individual uploaders.
While this writer is unaware of any Jamaican entity directly involved
in the operating of P2P networks, a significant number of Jamaicans download
music without permission. Therefore, what is the risk for Jamaican users?
Under the Copyright Act, it is an infringement to copy a song or movie or other copyrighted material without the permission of the copyright holder. Other sections give the copyright holder a number of legal remedies once he can prove infringement. This is where many downloaders feel safe. If they can't find me and can't prove I did it, I'm clear. This sentiment did not hold true in the United Kingdom (U.K.).
The U.K. Copyright, Designs and Patent Act's definition of copying includes "storing the work in any medium by electronic means", that is, downloading or uploading to a computer. This definition also appears in the Jamaican law. In 2004, the British record industry's trade association (BPI), applied to the English High Court for an order against a number of Internet Service Providers (ISPs). The judge sided with BPI and ordered the ISPs to reveal the identities of a number of their clients that BPI alleged had illegally copied music.
Though BPI relied on amendments to the UK Act effected by an EU Directive of which there is no similar rule in Jamaica, if copyright holders produced the same evidence before Jamaican courts, it is likely that the outcome would be the same. This is because at the very least copying a song from whatever source without permission onto a computer would fall within the prohibited category of copying the work. Further, there is a tenable argument that placing music without permission in a shared file directory connected to a P2P network means that copyright is again being infringed as other users are being authorised to copy the files in the shared folder.
To locate an uploader, one downloads a recording via a P2P network. This act of downloading will transmit the recording as well as the transmitter's internet protocol (IP) address.
APPLY FOR COURT ORDER
The copyright holder could then apply for a court order requiring the
ISP to disclose whose account matches the particular IP address. A number
of factors must be satisfied before any such order is granted and as said
before the High Court in the UK was persuaded by similar but more internet-piracy
specific legislation than the Jamaican Act. Therefore, success in Jamaican
courts, however probable, is not definite.
Even so, internet-users are cautioned to beware as recording companies have every legal right to pursue web users in Jamaica that reproduce copyrighted material without permission (commercial feasibility is another matter). Although there has been no action to date against an ISP or downloader in Jamaica, this is not an area in which one should aspire to be a trendsetter.
Kedian T. Francis is an attorney with DunnCox Attorneys-at-Law, Kingston. Email: kedian.francis@dunncox.com.